PREFACE. SINCE the publication of the eighth edition of the following Work, several acts of parliament have expired, or been repealed, and others passed, which have occasioned considerable alterations in the practice of the different courts. Some new rules of court have also been made, during that period, and upwards of eight hundred cases published, on practical subjects. The restrictions on cash payments under the Bank acts having finally ceased, it is no longer necessary to negative a tender of the debt in bank notes, in an affidavit to hold to bail. The alien acts having expired, aliens are now no longer privileged from arrest. The statute 51 Geo. III. c. 124, having also been suffered to expire, an act was made in the last session of parliament, (a) to prevent arrests upon mesne process, where the debt or cause of action is under twenty pounds; and to regulate the practice of arrests. By this act, no person can, in general, be arrested or held to special bail, where the cause of action is less than twenty pounds; nor, in Wales or the counties palatine, unless the process be duly marked and indorsed for bail in a sum not less than fifty pounds. And where the writ or process is issued by a plaintiff in his own person, the sheriff shall not execute the same, unless it be delivered to him by some attorney of one of the courts of record at Westminster, &c., and indorsed with the name and place of abode of such attorney. The defendant is allowed, by this statute, to deposit and pay into court the sum indorsed upon the writ, together with an additional sum for costs, to abide the event of the suit, in lieu of putting in and perfecting special bail. And where the plaintiff does not proceed by capias against the person, but by original or other writ, and summons or attachment, or by subpoena and attachment thereupon, against any person not having privilege of parliament, the same mode of proceeding is given by this statute, as was before provided by the 51 Geo. III. c. 124. The stamp duties on law proceedings were repealed, by the statute 5 Geo. IV. c. 41. And the statutes relating to bankrupts and insolvent debtors having been repealed, except in certain cases, the laws respecting the former, and for the relief of the latter, were amended or consolidated, by the statutes 6 Geo. IV. c. 16 and 7 Geo. IV. c. 57. The laws relating to the customs having also been repealed, by the statute 6 Geo. IV. c. 105, an act was made for the prevention of smuggling;(aa) in which there are clauses relative to the limitation of actions against officers of the army, navy, or marines, customs or excise, or any person acting under the directions of the commissioners of the customs, for any thing done in the execution or by reason of their offices; and requiring notice in writing to be given to such officers, one calendar month before the writ sued out, and enabling (aa) 6 Geo. IV. c. 108. (a) 7 & 8 Geo. IV. c. 71. them to tender amends, plead the general issue, and bring money into court, &c. The statutes of hue and cry, &c., having also been repealed, by the statute 7 & 8 Geo. IV. c. 27, an act was made, (b) for consolidating and amending the laws in England, relative to remedies against the hundred, for the damage done by persons riotously and tumultuously assembled, (for which alone the hundred is now liable :) and a summary mode of proceeding is provided by that act, before two justices of the peace, in cases where the damage does not exceed thirty pounds. Other acts have been made, affecting the jurisdiction and practice of the courts, of which the following are instances: First, the act to enlarge and extend the power of the judges of the several courts of Great Sessions in Wales, and to amend the laws relating to the same :(a) Secondly, Mr. Peel's act, for consolidating and amending the laws relative to jurors, and juries:(bb) Thirdly, the acts to abolish the sale of offices, in the courts of King's Bench and Common Pleas, and to make provision for the chief justices; (c) for augmenting the salaries of the Master of the Rolls, and Vice Chancellor, the Chief Baron of the court of Exchequer, and the puisne judges and barons of the courts in Westminster Hall, (d) &c.; and to authorize the purchase of the office of receiver and comptroller of the seal of the courts of King's Bench and Common Pleas, and of custos brevium of the latter court :(e) Fourthly, the act for preventing frivolous writs of error;(f) by requiring that upon any judgment to be given in any of the courts at Westminster, or in the counties palatine and great sessions in Wales, in any personal action, execution shall not be stayed or delayed by writ of error or supersedeas thereupon, without the special order of the court, or some judge thereof, unless a recognizance, with condition according to the statute 3 Jac. I. c. 8, be first acknowledged in the same court: And lastly, Lord Tenterden's acts, for rendering a written memorandum necessary to the validity of certain promises and engagements; (g) and to prevent a failure of justice by reason of variances between records, and writings produced in evidence in support thereof.(h) In preparing the present edition, it has been the Author's endeavour to render his work less unworthy of the very favourable reception it has met with from the profession. The whole has been carefully revised, and such corrections made as appeared to be necessary, as well in the text, as in the notes and references. The several acts of parliament and rules of court, which have been made since the publication of the last edition, are introduced in the present; together with such of the practical decisions of the courts, as were published before the work went to press, or could be inserted while it was printing off: The rest are given at the end, by way of Addenda, together with some other matters which were inadvertently omitted, with directions for incorporating them; and are for the most part referred to in the Index. These decisions are brought down to the end of Michaelmas term last, in the King's Bench, and Exchequer; and to the end of Hilary term, in the Common Pleas. References are also made to the second volume of the reports of the late Lord Kenyon; and the references to text writers, and books of practice, &c., have been altered throughout to the latest editions. The general arrangement of the work is pretty much the same in this edition as the last, except that the twentieth chapter of the last edition, which treated of motions and rules peculiar to the action of ejectment, and affidavits in support of (b) 7 & 8 Geo. IV. c. 31. (a) 5 Geo. IV. c. 106. them, and of such motions and rules as were not necessarily connected with any suit, has been divided; and its contents transferred to the twentieth and last chapters in the present edition. The thirty-fifth and thirty-sixth chapters also, of the last edition, have been divided, and now constitute three chapters, being the thirty-fourth, thirty-fifth, and shirty-sixth, in the present edition; one of which treats of the record of nisi prius, jury process, common and special juries, and views; another, of the brief, evidence, and witnesses; and the third, of entering the cause for trial, and references to arbitration. The insertion of the new statutes, rules of court and cases, has necessarily occasioned considerable alterations throughout the work; and particularly in the first, second, sixth, tenth, twelfth, fifteenth, twentieth, twenty-third, and thirtyfourth chapters. In the first chapter, several new statutes have been referred to, respecting the mode of bringing actions by parish officers, and by or against trustees, and public companies, &c., the limitation of actions for wrongs, and notices of action, &c.; and the cases decided on the statutes of limitations have been newly arranged. In the second chapter, a full account is given of the offices and officers of the courts of King's Bench and Common Pleas, with their appointment and duties, as regulated by the statutes 6 Geo. IV. c. 82, 3, and 89. And, in the sixth chapter, the mode of proceeding against traders having privilege of parliament, by the statute 6 Geo. IV. c. 16, is pointed out; and also the remedy by action against hundredors, on the statute 7 & 8 Geo. IV. c. 31, for damages occasioned by persons riotously and tumultuously assembled, with the summary mode of proceeding on that statute, before two justices, where the damage does Rot exceed thirty pounds. The law of arrest is fully treated of in the tenth chapter, as depending on the statute 7 & 8 Geo. IV. c. 71; and in this chapter the several cases are considered, in which bankrupts and insolvent debtors are privileged from arrest, by the statutes 6 Geo. IV. c. 16, and 7 Geo. IV. c. 57. With regard to the former, their privilege from arrest is considered in a threefold point of view: First, in coming to surrender, and during the time allowed for finishing their examination; secondly, after the time allowed them for these purposes is expired, and before they have obtained their certificates: and thirdly, after their certificates have been signed and allowed by the Lord Chancellor: And the bankrupt being discharged from all debts proveable under the commission, it was thought that it might not be deemed an improper digression, to consider what debts may or may not be proved under it. The privilege of insolvent debtors from arrest is also considered in this chapter, first, under occasional insolvent acts; secondly, under the earlier permanent acts; and thirdly, under the last general insolvent act, 7 Geo. IV. c. 57. The twelfth chapter, on the subject of bail, has been carefully revised and corrected; and a new arrangement is made therein, of the cases relative to the means of discharging them from liability on their recognizance. In the fifteenth chapter, a view is taken of the several acts of parliament for the relief of insolvent debtors; and particularly of that to which they are entitled under the last general insolvent act, with the mode of proceeding thereon: In the twentieth chapter, the annuity acts and the decisions thereon are introduced, under the head of staying proceedings; and, in the twenty-third chapter, some material alterations have been made in the arrangement of the cases respecting the inspection and copies of written instruments, books, court rolls, &c. In the thirty-fourth chapter, the qualifications, disqualifications, and exemptions of jurors are considered; with the mode of returning and impanelling common juries, and of striking special juries, as it existed before, and is now regulated by the statute 6 Geo. IV. c. 50, and also the time and mode of summoning jurors in general, and obtaining a view; and, in the thirty-seventh chapter, the method of balloting for and swearing common jurors, at the trial, is pointed out, and the adding of talesmen, &c. Besides the additions and alterations that have been noticed, and which were occasioned by the new statutes, rules and cases, there are others, in the thirtyseventh, fortieth, and last chapters, which depend on former statutes and decisions. In the thirty-seventh chapter, the author has carefully collected and arranged all the cases which have been determined on the measure of damages, in actions upon contracts, and for wrongs, immediate and consequential; and, as incident to the consideration of damages, in actions upon contracts for the non-payment of money, there is a collection of the cases in which interest is or is not recoverable. In the fortieth chapter, the principal court of requests acts have been referred to, and the acts by which their jurisdiction is extended to sums not exceeding five pounds, or to sums of larger amount, with the decisions thereon: and, in a previous chapter, (a) there are references to the acts by which the decree or judgments may be removed from courts of requests, to obtain execution thereon, in the superior courts. In the last chapter, a practical view is taken of the action of ejectment, which is treated of under the following heads: First, the general nature and object of the action Secondly, by and against whom it may be brought: Thirdly for what things an ejectment will lie, and how they should be described: Fourthly, the title necessary to support it, and herein of the legal estate, and right of entry: Fifthly, within what time an ejectment must be brought: Sixthly, the remedy by entry, without suit; and in what cases an actual entry, and demand of rent, were formerly necessary, and must now be made: Seventhly, the ancient mode of proceeding in ejectment, and in what cases it is still necessary: with the method of proceeding in the case of a vacant possession; Eighthly, the present mode of proceeding against the casual ejector, to judgment by default and execution, when the tenant or his landlord, does not appear: Ninthly, the appearance of the tenant, or his landlord; and the subsequent proceedings thereon to trial, final judgment, and execution: And lastly, the mode of reviving the judgment by scire facias, or of reversing it by writ of error. But that which chiefly distinguishes the present from all former editions, is the marginal notes, or abstracts of the contents of the work. The making of these notes has been attended with considerable trouble; but it is hoped they will be found useful in facilitating research. Amid such a variety of new and important matter, making altogether more than a tenth part of the whole work, some errors must necessarily have occurred: These the author trusts will be viewed by a liberal profession with their accustomed candor; especially when the difficulty is considered, of altering the text of a work already composed, and that a great part of his time has been necessarily occupied with the business of his clients. The whole work has been re-paged, and references made throughout to the proposed new edition of the Practical Forms, which is in a state of considerable forwardness, so as to make them correspond with the present edition of the Practice, to which they are intended as an Appendix. The tables of statutes, and general rules of court, orders and notices, prefixed to the work, have been carefully revised, corrected, and re-paged; with the tables of the principal reports of printed cases referred to therein. By these tables it will appear, that there are (a) Chap. XVI. pp. 402, 3. nearly five hundred statutes referred to in the following work, and more than that number of general rules of court, orders and notices. The whole number of printed cases amounts to upwards of ten thousand, besides those which have been published since the last edition; and the original, or MSS. cases are nearly five hundred. The Index also, in which the new matter has been introduced, has been carefully revised, altered, and repaged; and some of the principal titles have been new modelled and enlarged, particularly those relating to Affidavits of the cause of Action, Bail, Bankrupt, Court of Requests, Acts, Damages, Ejectment, Evidence, Great Sessions, Hundredors, Insolvent Debtors, Interest, Jury, Limitation of Actions, Officers, Offices, and Staying Proceedings, &c. Upon the whole, no pains have been spared, to improve the present edition; and it is now submitted to the profession, as exhibiting in a connected point of view, the Practice of the courts of King's Bench and Common Pleas, in personal actions, and ejectment; with the rules, and modern decisions, on the plea side of the court of Exchequer ; particularly noticing the changes it has undergone during the reigns of his late and present Majesty of which it may with truth be affirmed, that in no period of our history has the law been better administered, or the courts of justices filled with more able and upright judges. TEMPLE, 6th June, 1828. |