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Ir, because by far the greatest part of the Law of England lies scattered in the Reports of Cases, that during several centuries have come before the Courts, and a desire to possess the knowledge of so much only of this law, as may be strictly necessary for professional practice, would be attended with extreme difficulty, if the only path to it lay through the volumes of Reports themselves, the least successful attempt to collect together any part of these materials, and embody them in a separate treatise, may fairly claim both gentle criticism, and, perhaps, some gratitude; on the other hand, it is necessary to admit that these favours ought not to be won, except by applying to the subject treated of, as much research, thought, and labour, as the author is capable of bestowing on it.

The task of a law writer can very rarely be light, if he undertakes personally to read the cases reported, and to state the effect of them. To ascertain the decision in a single case very frequently requires much patient thought and investigation; and it will readily, therefore, be apprehended, that to gather the law that results from a series of cases, beginning perhaps at a distant period, and most usually determined in different Courts, and by judges of unequal eminence, is sometimes impracticable and is constantly exposed to the danger of error. The authority of a case often depends on the Court in which, or the learning of the judge by whom, it was decided. A case at Nisi Prius carries less weight, than one decided by assembled judges at Westminster; (a) and it is certain that, generally speaking, a judgment by a Court in Westminster Hall yields in importance to a decision in the House of Lords. (b) The authority of a case may, moreover, be strengthened by the circumstance, that it was determined by a "strong" Court, (c) by a Court composed of judges of great reputation, (d) or by, or with the concurrence, of a single judge distinguished for his learning; (e) and be weakened by the circumstance, that the Court were equally divided,(f) or were not unani

(a) 2 D. & E. 74; 7 D. & E. 334; 5 wicke (7 D. & E. 416; 7 Price, 277;) Lord Taunt. 195; 2 Bing. 90; 15 Ves. 262. (b) 6 Ves. 547; 3 Swanst. 152.

(c) 5 Taunt. 671.

(d) 7 Price, 347; 6 Bing. 22.

(e) An eminence of this kind has been attained (among other judges) by Sir M. Hale (4 D. & E. 311; 5 D. & E. 556;) Sir J. Holt (6 D. & E. 423; 7 D. & E. 743;) Lord Hard

Mansfield (2 D. & E. 73; 6 D. & E. 423; 7 D. & E. 222; 8 D. & E. 23; 2 Bing. 309;) Lord Thurlow (5 Ves. 538;) Lord Alvanley (15 East, 198; 3 M. & S. 536; 4 Bing. 242; and Sir V. Gibbs (3 Bing. 391, 643; 5 Bing. 547; 1 B. & C. 251.)

(f) 3 D. & E. 631; 14 East, 621.

mous.(g) Besides the trouble of fixing the value of cases, in searching for the present law, farther difficulties commonly occur. One authority, or one series of authorities, is contradicted by another; a modern case, and one determined some years ago, (h) or even two recent cases, (i) are found to be much, if not directly, at variance; and, more perplexing still, cases, that for years have uniformly flowed in a particular direction, are not unfrequently met by an opposing stream, strong enough to stem the older current, and to make it doubtful what course they will hereafter take.(j) The value of a case is clear, and it remains uncontradicted; and yet to know the effect of it, it is constantly needful to inquire, if it determines a general question, or if it is decided merely on its own particular circumstances. The importance of this inquiry is demonstrated by the fact, that, in a multitude of instances, the Court anxiously guards against misconstruction, by expressly stating in terms, that it decides on the particular circumstances only, and leaves the general question untouched.(k) When it is required to state the grounds of a decision, especial care appears to be necessary, accurately to collect them from the facts of the case, or the language of the judgment. "Read not to contradict and confute, nor to believe and take for granted, but to weigh and consider," is advice, that seems peculiarly to apply to a writer on English Law.

Enough, perhaps, has been said to make it apparent, that the least successful Law-Treatise may fairly claim for itself gentle criticism. The duties of the writer are manifested by the circumstance, that common experience testifies that, in actual practice, it is often essential to act on the instant, and frequently a treatise must be, and consequently is, depended on, as containing a faithful statement of the law.

The chief objects of the present volume are, to be an assistance to persons providing by will for the payment of debts, and mortgages and other incumbrances, and legacies; and, in plain language and practical form, to convey useful information to creditors, who have demands against the estate of a person deceased, and to unfold to executors, administrators, and trustees, the duties which their office imposes on them, and the responsibilities they incur by accepting it.

In a great number of instances, the Author has mentioned in the notes, the occasion, on which a case there referred to, has been cited on the bench. For often a judge's notice of a case may augment or lessen the value of it as authority, and regulate its importance on future questions. That notice may be materially useful, amongst other examples,when it explains the judgment delivered in the case cited, and which, according to the report of it, is not very intelligible:() when the case is noticed by the same judge, by whom it was decided, and, on citing it, he expresses his adherence to it, (m) or explains the ground or principle of his decision, (n) or the meaning of his judgment, which has been misun

(g) 5 D. & E. 257; Coop. 267.

(h) Ves. jun. 495; Eaton v. Jaques, Doug. 438 (ed. 1783,) and Williams v. Bosanquet, 1 Brod. & B. 238.

(i) Gibson v. Dickie, 3 M. & S. 463, and Binnington v. Wallis, 4 Barn. & Ald. 650; Attree v. Scutt, 6 East, 476, and Garland v. Jekyll, 2 Bing. 273.

(j) 3 Bing. 647; 4 Bing. 241,

(k) 8 Taunt. 55, 56; 12 Ves. 182; Jacob, 38.

(1) 15 Ves. 394.

(m) 7 D. & E. 437; 2 Eden, 180; 1 Turn. & R. 240.

(n) 2 Ves. 655; Ambl. 301; 1 Turn. & R. 240.

derstood:(0) when the judge who cites the case was counsel in the cause, and states the nature of it:(p) when the judge has his own note of the case, and cites it from that note:(q) when such judicial notice of a case discloses the end of it:(r) when it testifies the authority of the case cited, and expresses an opinion that it ought to be followed:(s) when it is expressive of approbation of a case, the soundness of which has been attacked:(t) when it contains an opinion that the case cited is not law,(u) or a statement that it has not been approved of.(v)

77, Chancery Lane,

27th August, 1832.

(0) 7 Ves. 95; 1 Turn. & R. 238, 239, 244.

(p) 1 Atk. 525; 1 Sch. & Lef. 294, 295; M'Clel. 525.

(g) 1 Sch. & Lef. 294.

A 2

(r) 2 Ld. Raym. 1148, 1150; 4 Madd. 278, 279.

(s) 6 Ves. 565; 8 Ves. 287.

(t) 4 Ves. 323; 1 Sim. 192, 193.
(u) 3 Ves. 14, 16.

(v) 2 Barn. & Adolph. 577.

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