TREATISE ON PLEADING AND PARTIES TO ACTIONS, WITH SECOND AND THIRD VOLUMES CONTAINING MODERN PRECEDENTS OF PLEADINGS, AND Practical Notes. NIHIL SIMUL INVENTUM EST ET PERFECTUM.-Co. Lit. 230 a. IN THREE VOLUMES. VOL. II. THE SEVENTH EDITION, CORRECTED AND ENLARGED, BY HENRY GREENING, ESQ., OF LINCOLN'S INN. LONDON: S. SWEET; AND V. & R. STEVENS AND G. S. NORTON; ANDREW MILLIKEN, GRAFton street, Dublin. 1844. ADVERTISEMENT TO THE SECOND VOLUME OF THE SEVENTH EDITION. THE principal alterations in this edition of the Second Volume are pointed out in the Preface at the commencement of the First Volume; and a full account of the manner and care with which the forms inserted in the previous editions of this work, and comprised also in the present, were collected and revised by the learned Author is contained in the Preface to the Second Volume of the sixth edition, to which the reader is referred. 9, KING'S BENCH WALK, TEMPLE, 25th November, 1843. H. G. PREFACE TO THE SECOND VOLUME OF THE SIXTH EDITION. 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 in 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; (b) 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 unfavourable to its validity, merely because it had been promulgated for upwards of twenty years in Mr. Tidd's Precedents of Practical Forms. But the term Precedent, in all these cases, denotes a document that has been long in use, and not a mere novel invention, which, for the above reason, cannot safely be relied upon, as has been unfortunately frequently exemplified by the numerous successful demurrers to new forms of pleas recently invented in consequence of the necessity to plead almost every matter of defence specially. For this reason the following collection, with a few exceptions, and subject to the introduction of alterations required by the new rules, was nearly forty years ago made by the author, not of his own pleadings, or those of any living practitioner, but from higher sources; and for the same reason he begs that every practitioner, when he adopts one of the new forms introduced into this edition, will consider the same merely as intended to assist, and not to be entirely confided in, unless prescribed by statute or rule of Court, or sanctioned by express decision. It may here be proper to state the history of the greater part of the precedents collected in this and the next volume. The author (a) Co. Lit. 230 a. (b) Per Lord Eldon in The Attorney General v. Freer, 11 Price, 193. (c) Per Abbott, C. J., in Henniker v. Turner, 4 Bar. & Cres. 159; 6 Dowl. & R. 94, S. C. |