But the term Precedents, 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 defense 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 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 had the good fortune to commence his legal studies under the directions of his relatives, the late Mr. Serjeant George Bond and Mr. Luders, who obtained for him the privilege of access to the best pleadings adopted, prepared, settled, or otherwise sanctioned and constantly used by those eminent pleaders, most of them afterwards judges, viz. Wallace, Warren, Buller, Chambre, Gibbs, Bond, Wood, Holroyd, Law, Abbot, &c. &c. These forms (I might say from time to time immemorially) had been improved with great care, after having been translated from the old entries. The author also selected some excellent original forms from the original demurrer books of Mr. Justice Ashurst, with his valuable notes and observations (d). This entire collection was deficient only in the precedents in assumpsit. The author was enabled to supply that chasm during his pupilage under Mr. Tidd, who evinced peculiar skill and perspicuity in his pleadings in that form of action, which, of necessity, in its special counts discloses so much of the plaintiff's cause of action. • For the description of Titles to Real Property, and the various modes of acquiring them, the author is greatly indebted to Sir Edward Sugden, who, although at the time surrounded by pressing engagements, very kindly bèstowed great attention to the forms and the notes in Covenant relative to those important subjects; and for that part of his Second volume in particuular the author has frequently received the thanks of his professional friends, on account of those pleadings of titles having relieved them from great trouble

(1) To that valuable collection ja tl.e possession of the author, practitioners and stu lents are welcome to refer.

and anxiety in describing titles to real property, with which pleaders in gen eral are not so conversant as convenancers.

The arrangement of the subject, it is hoped, will be found natural, easy, and perspicuous. As regards the greater part of the precedents, it was not probable, when their origin is remembered, that they would be frequently found defective. During the five preceding editions, and near forty years' circulation, they have been constantly and extensively acted upon, and in most instances supported by decisions of the Courts. In the few instances when supposed to be incorrect, they have of course been corrected in this edition. In many cases, though at first doubted, their sufficiency has been established as well on special demurrer as upon writs of error. If the precedents had originated with the author himself, he would not have said thus much; but as he claims only the merit of selection and arrangement and the notes, it is due to the profession to inform them how far they may confide in the precedents themselves.


Soon after the new rules had been promulgated, I ventured to anticipate that they would not be found to alter any established principle or rule of pleading, or introduce any nei principle, and it is clear that such is the result; and it is to be understood by all practitioners that as regards Declarations, the principal recent alterations noticed in this edition are mere consequences of the excellent enactment in the Uniformity of Process Act, 2 W. 4, č. 39, which abolished all the previous distressing varieties in mesne process, and reduced them principally to four ; viz. the writ of summons, being mere serviceable process, to bring the defendant into Court; the writ of Distringas, having the same object; the writ of Capias, to arrest the defendant when at large; and the writ of Detainer, to detain him when he is already in custody on prior process. Two subsequent rules of Court prescribed new forms of Commencements and Conclusions of Declarations to cip

terations be equally observed in the three superior Courts, and which will be found only in properly descriptive of the mode in which the defendant has been brought form into Court by one of the new processes, and also prescribing that all declarations shall be intituled at the head in the proper Court, and of the day, month and year when actually delivered or filed, and that the venue shall only be stated in the margin and not repeated in the body; whereby the absurd repetition of place, although wholly immaterial, is now abolished

matters of


except in trespass quare clausum fregit, (when local description is frequently material, and in order to avoid the delay and expense of a new assignment, the name of the close or its precise abuttals must be stated, or the

omission may be corrected by special demurrer.) In no other respect is there And in en- any alteration in the body or substance of a declaration peremptorily enjoined, joining concise except indeed as to declarations on Bills of Exchange, and Promissory

Notes, and for common debts recoverable in indebitatus assumpsit, and in debt with respect to which some very concise forms were prescribed by Reg. Gen. Trin. T. 1 W. 4, and which must be strictly observed, and if the declaration be more lengthy than those prescribed, the expense of the extra length cannot be recovered by the plaintiff or his attorney.

In practice the forms prescribed by that rule have however been considered by the best pleaders as intended to sanction and'encourage a more succinct mode of declaring in all other cases, and it has become the practice to omit all words that are unnecessary; thus a contract or promise is now described, by a mere statement “that the defendant promised to pay” or “to deliver,” &c. instead of " that the defendant undertook and then and there faithfully promised the plaintiff to pay, &c.” So the word " said,” before plaintiff or defendant, is now usually omitted, and instead of “special instance and request" the word "request” only is used, and instead of the former prolix statement of the breach by the words “ Yet the defendant craftily and subtly contriving and intending to deceive and defraud the plaintiff in this behalf, hath not, although he was afterwards, to wit, on, &c. at, &c. requested, by the plaintiff so to do, as yet paid, &c.” the declaration now concludes “Yet the defendant hath not paid, &c.” Although the omission of a word or two might, on first consideration, appear to be of too trifling importance to merit attention, yet it will be found, that in a long record, frequent repetitions of useless words occasion a considerable increase of expense. And the principle and spirit of conciseness, having been once so laudably introduced, it will, in numerous other even more important respects, be encouraged and extended by

those who wish to acquire character and credit for neatness and discrimination And in al- in their pleadings, and to avoid useless expense. lowing only one But it is principally by the Reg. Gen. Hil. T. 4 W. 4 reg. 5, founded on count or

3 & 4 W. 4, c. 42, s. 1, 23, that the greatest ameliorations in pleading have respect of the same been introduced and enforced. It had become a condemnbale practice to encause of action or

cumber almost every declaration, although only for one cause of action, ground of

plea ir

with numerous counts, under pretence of avoiding the risk of variance on


the trial, and consequent expediency of inserting several counts describing the contract or the right or the injury in various ways, so as to meet the evidence whatever it might turn out to be. The above statute, by enabling a judge to amend in case of variance even pending a trial, took from the plaintiff the principal pretence for introducing several varying counts; and that excellent object having been effected, the judges then promulgated the above rule, prohibiting the use of more than one count upon each cause of action, or more than one plea on the same ground of defence, and enabling a defendant to apply to a judge to strike out every superfluous count; and make it imperative on the judge so to order, and to make the plaintiff pay the costs of the application, and even with certain more serious consequences as regards the costs of the action, if the plaintiff should persist in retaining the superfluous count and not succeed upon the same. Another rule, (viz. Hil. T. 2 W. 4,) deprived the party of the costs of any pleadings which he has adopted and on which he does not succeed, and entitles the opponents to the costs of all issues found for him. These rules co-operate powerfully to repress any redundancy in pleading, heretofore so disgracefully prevalent for the sole purpose of increasing the profits to the practitioners concerned.


care and

It will be obvious, however, that as the plaintiff is now confined to one The; statement of his cause of action, it has become much more essential than creased

necessity heretofore that such statements should be very carefully framed after a most for more accurate examination, not only into the facts but of the evidence that can be extended

knowledge certainly adduced in support of them; and the judges have declared, that it is of piead

ing. the duty of every attorney practicing in the common Law Courts not to rely merely on his special pleader, but himself to examine and consider the sufficiency and applicability of the declaration (e); and it is certainly desirable, as well for his own as his client's interest, that every attorney should inform himself upon the principles and practice of pleading, as one of the most important and useful branches of legal knowledge. It would be found salutary, if the plaintiff's attorney would in every case obtain an accurate statement of the facts and evidence, and prepare from a Volume of precedents a declaration in such form as he may consider most applicable to his client's case, and then have the draft settled by his pleader or counsel. Even as an exercise for the articled clerk under the principal attorney's tuition, this practice

(e) Cliffe o. Prosser, 2 Dowl. 21; Tomlinson v. Nanney, 8 Dowl. 17; 8 Chitty's Gen. Prao. 429 to 483.

would inevitably be found of considerable utility, as habituating them to a systematic investigation of a subject highly useful if not indispensable to them in their subsequent practice, and it would save some time and labor to the gentleman who will ultimately settle the draft.

The alterations and improvements relating to Pleas, Replications and subsequent Pleading will be pointed out in the Preface to the third Volume. They have been considerably altered and enlarged, and a great number of new precedents are introduced ; and, to secure accuracy, the author has availed himself of the assistance of his son, Mr. Thomas Chitty, but at the same time the author has himself carefully revised every part.

J. C. Chambers, 6, Chancery Lane,

12th January, 1886.

« ForrigeFortsett »