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A

TRE A TISE

ON

P L E A D I N G ,

WITH

A COLLECTION

OF

Precede uts,

AND

AN APPENDIX OF FORMS

ADAPTED TO

THE RECENT PLEADING AND OTHER RULES,

AND WITH

Practical Notes.

Nihil simul inventum est et perfectum.—Co. Lit. 230 a.

IN THREE VOLUMES.

VOL. II.

BY JOSEPH CHITTY, Esq.
OF THE MIDDLE TEMPLE, BARRISTER AT LAW.

Eleventh American Edition,
FROM THE SIXTH LONDON EDITION, CORRECTED AND ENLARGED.

With the new matter incorporated of the Text of the Treatise in the
SEVENTH LONDON EDITION,

By H. GREENING, Esq.
WITH NOTES AND ADDITIONS, BY JOHN A. DUNLAP & E. D. INGRAHAM, ESQRS.
AND ADDITIONAL NOTES, AND REFERENCES TO LATER DECISIONS,

By J. C. PERKINS, Esq.

SPRINGFIELD, MASS.
PUBLISHED BY G. & C. MERRIAM,

1851.

Entered according to the Act of Congress, in the year 1847, by

G. & C. MERRIAM, In the Clerk's Office of the District Court of Massachusetts.

326580

SPRINGFIELD:
H. S. TAYLOR, PRINTER.

PREFACE

TO

THE SECOND VOLUME

OF THIS

SIXTH [LONDON] EDITION.

[The American student will perceive that a part of the following Preface has reference to the New Rules of Pleading, recently adopted in England, but not yet in use in this country. For a full explanation, he is referred to the American Editor's Preface, at the beginning of the first volume.]

The previous volume is a digest of the Principles and Rules upon which Pleadings should be framed, with Practical Directions. The present and the third volumes contain a collection of Instances, Examples, or Precedents, in which those principles and rules have been repeatedly applied to the principal cases that have arisen in practice. The most eminent and experienced lawyers confess that without the assistance of Precedents they would constantly find themselves in difficulty, and not unfrequently in error, since approved precedents not only point out the necessary averments, but also the language to be observed. Lord Coke advised every practitioner constantly to consult precedents, “ nam nihil simul inventum est et perfectum ;" i. e. nothing is at the same instant invented or discovered, and perfect, but becomes so only by frequent use and occasional correction (a). For the same reason Lord Eldon said that long adopted precedents ought to have great weight (6); and still more recently Lord Tenterden observed, that it is very unwise to depart from the common course of precedents (c): and in a very recent case an affidavit to hold to bail was sustained even against a prior decision unfavorable to its (a) (o. Lit. 230 a.

Per Lord Eldon, in the Attorney-General 7. Freer, 11 Price, 193. c) Per Abbott, C. J., in Henniker o. Turner, 4 Bar. & Cres. 159 ; 6 Bowl. & Ryl. 94, S. C.

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