PRACTICE OF THE LAW IN ALL ITS DEPARTMENTS; WITH A VIEW OF RIGHTS, INJURIES, AND REMEDIES, AS AMELIORATED BY RECENT STATUTES, RULES, AND DECISIONS; SHEWING THE BEST MODES OF CREATING, PERFECTING, SECURING, and transferring righTS; AND THE BEST REMEDIES FOR EVERY INJURY, AS WELL BY ACTS OF PARTIES THEMSELVES, QR TO ENFORCE specific relief, perFORMANCE, OR COMPENSATION; AND THE PRACTICE IN ARBITRATIONS; BEFORE JUSTICES; IN COURTS OF COMMON LAW; WITH NEW PRACTICAL FORMS. INTENDED AS A COURT AND CIRCUIT COMPANION. IN THREE VOLUMES. VOL. III.-PART I. BY J. CHITTY, ESQ. BARRISTER, OF THE MIDDLE TEMPLE. LONDON: S. SWEET, CHANCERY LANE; STEVENS AND SONS, 39, BELL YARD; AND A. MAXWELL, 32, BELL YARD; Law Booksellers and Publishers: MILLIKEN AND SON, GRAFTON STREET, dublin. 1835 PREFACE ΤΟ THE FIFTH PART. THIS and the next part will conclude my entire undertaking. They principally relate to the Practice of the Three Superior Courts of Law, though incidentally to much of the practice of other Courts. It would have been a vain and futile attempt to endeavour to compete with the admirable work of Mr. Tidd, (the most useful offered to the Profession since the first publication of Blackstone's Commentaries,) or that of my son, whose recent publication, with his Collection of Forms, are worthy of his assiduity and intelligence. I have therefore endeavoured to take a different view of the subject, by examining the principles on which most of the rules are founded, conjointly with the rules themselves, by which association the rules will be better understood and more deeply impressed upon the memory. (a) (a) We all confess, but few adequately perceive, why it is so difficult to recollect a dry rule of practice, and we incorrectly impute to a defect of memory what in reality is attributable to our never having adequately known the subject; the simple truth is, that reason or principle is the appropriate food of the mind, and it follows that no position is received with adequate appetite, unless it be associated with the reason upon which it is founded. The attention is not sufficiently excited, and consequently the perception of the rule is imperfect, and the image is so indistinctly and faintly impressed on the memory that it is soon forgotten; but when the mind is gratified by perceiving the reason of a I have also not confined my attention to the mere statement of the several modes of proceeding, but have attempted to shew which is preferable, and why. As an instance of the manner of treating the subjects, the reader is referred to the consideration of the mode of obtaining instructions to sue or to defend, discussed in page 117 to 125. The observance of the precautionary measures there recommended, would, I trust, prevent many disastrous nonsuits and insufficient defences, at present too frequently occurring, from the want of adequate attention in the earliest stages of litigation. Numerous precedents will be found in the notes, some entirely new, and others with suggestions for improvement in practice. I have considered it important at least that students, if not practitioners, should have the forms before them at the same time when they are examining the parts and requisites, and therefore I have adopted this mode of printing the precedents in preference to collecting them in a separate volume. The Table of Contents immediately following these observations will shew the outline of this part in analytical order, and will serve as a temporary Index until the concluding part has been published; and at rule it is never forgotten, because all the powers of the mind are then duly and constantly exercised in perpetuating the full knowledge and recollection of the rule. In my Treatise on Medical Jurisprudence, page 322 to 333, I have attempted to explain the modes of impressing and perpetuating the knowledge of any subject by the conjoint use of all the mental faculties, but principally by enjoining to all legal students the paramount importance of being in full possession of the principles and reasons on which each rule is founded before they pass on to the examination of another. the head of each Chapter will be found an analytical table of its subjects. In the four earliest Chapters, subjects of general importance are first considered; as-First, The six several branch jurisdictions of each Court, and which should be resorted to; as either the Court in Banc, in which usually four judges preside; the Practice Court; the jurisdiction and practice before a single Judge at Chambers; the jurisdiction and practice before the Master and Prothonotary; the jurisdiction and practice before a Judge at Nisi Prius; and the new jurisdiction and practice before the Sheriff of each county. Secondly, Is fully considered the several authorities on or by which the practice of the Courts stands or is regulated, as Statutes, Rules, Usages and Decisions, with a comparative view of the different effect of each. Thirdly, The present altered law relating to the Terms and Vacations, and all regulations respecting time. Fourthly, Are stated all the advisable preliminary steps antecedent to the actual commencement of an action or defence. The fifth Chapter states all the Parts and Requisites of Process in general, as founded on the Uniformity of Process Act, 2 W. 4, c. 39, and this on a plan entirely new, and which it is hoped will meet with approbation. In the next Chapters successively each description of process, with its peculiar requisites and incidents, are separately examined, viz. Writs of Summons, Distringas, Capias, Detainer, Summons against a Member of Parliament when a trader, and all the incident proceedings relating to each, until appearance or bail above; and, lastly, are considered Proceedings to Out |