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PREFACE TO THE FIRST EDITION.
INDIVIDUALS possibly may think that a complex and rigid procedure, if well suited to the courts at Westminster, is quite out of place in Indian Mofussil courts, established mainly for the benefit of illiterate ryots and traders. But, however this may be, since such a procedure has been appointed by the legislature, unquestionably it is the part of Indian judges to do their best to conduct the business of their courts strictly in accordance with the law laid upon them, and to repress any yearning they may feel for a more simple kind of adjective law. The last shred of paternal power has been torn from Mofussil courts. And it only remains for the administrators of justice in India patiently to shape their course, to the utmost of their ability and knowledge, by a revised edition of the rules of practice which obtain in one of the most wealthy and highly civilized countries in the world.
The pleaders, too, who practise in Mofussil courts, have been called upon to change their style of advocacy and adapt themselves to the spirit of the age. No longer is it for them, by putting forward some so-called "equitable” doctrine, freshly evolved from their inner consciousness, to bend compliant judges to their will. Every day chapter and verse are insisted upon more and more: and before long the legal practitioner who shall decline to equip himself with a panoply of procedure, will be thrust back into the rearmost ranks.
Without help, however, neither judges nor pleaders can hope to do their duty with respect to procedure. Principally, they need access, and leisure to refer, to many books, and the opportunity of conferring from time to time with experienced lawyers. But, unhappily, the things principally needed by them are quite unattainable. In the Mofussil, law-libraries do not exist : there is but scant leisure for the working man : and the experienced lawyer is rarer even than the black swan. It is not to be wondered at, then, if in this country knowledge of procedure is at a very low ebb indeed, and if, in fact, there is as yet no such thing as a recognized practice of Mofussil courts.
It occurred to me therefore, a few years back, that it might be well to endeavour to mitigate the inconvenience of this state of
things by gathering together the more satisfactory and important of the decisions of the courts, both English and Indian, upon essential principles of procedure; by tracing the history of leading doctrines and precepts connected with processual law; by showing the reason for, and convenience of, old established rules which, taken by themselves, are difficult to apply ; by marking the connection inter-dependence and harmony of various portions of the Code of Civil Procedure ; by setting forth in an intelligible form some of the subordinate matters about which a compressed code is of necessity silent; and, finally, by explaining and illustrating out of the mouths of the best authorities the very nụmerous terms of art and elliptic directions and expressions with which the Code abounds. In short, I thought it might be useful to write a critical and explanatory commentary on, or exposition of, the Code: and having duly considered on the one hand the trouble and risk involved in making the attempt, and on the other hand the manifest public need of information about the law of procedure, I resolved at last to undertake the present work. Whether or no my labours will meet with the moderate measure of success at which I aim, remains to be seen.
I must express a hope that my readers, should I get any, will not expect to find everything in this single octavo volume. A hundred useful books might easily be written on the various departments and sub-departments of procedure, and I have not attempted by this work to supersede useful books such as Mr. BROUGHTONS collection of Acts, Mr. SLOANS “Practice of the Mofussil Courts," and the “ Civil Digest.” I have taken up a limited area of what I believe to be quite new ground. TRANQUEBAR, August, 1872.
J. H. NELSON.
OF THE PRINCIPAL BOOKS, &c., USED IN PREPARING THE WORK.
Archbolds Practice of the Court of Queens Bench, by Chitty, by
Prentice, 12th Edn. Austins Lectures on Jurisprudence, 3rd Edn., by Campbell. Bacons Abridgment of the law, by Gwillim and Dodd, 7th Edn. Baileys English Dictionary, by Harwood, 24th Edn. Bengal Law Reports, the. (B. L. R.) Bests treatise on the principles of Evidence. Broughtons Code of Civil Procedure, by Wilkinson, 4th Edn., 1871. Bullen and Leakes Precedents of Pleadings. Chittys Collection of Statutes, by Welsby and Bevan, 3rd Edn. Cokes Commentary upon Littleton, by Butler, 18th Edn. Coles law and practice in Ejectment. Colletts treatise on Injunctions. Comyns Digest of the Laws of England, 5th Edn., by Hammond. Cowell and Woodmans Indian Digest. Cowells Interpreter'. Daniells Practice of the High Court of Chancery, by Field and
Dunn, 4th Edn. Darts Vendors and Purchasers, 3rd Edn. Days Common Law Procedure Acts. Drewry on Injunctions. Ducanges Glossarium, by Henschel, 1842. Fields General Rules and Circular Orders of the Calcutta High
Court. Fishers Digest of reported cases. Johnsons English Dictionary, by Todd. Kerr on Injunctions. Lathams Dictionary of the English Language. Law Reports, the. (L. R.) Lely and Foulkes' Judicature Acts, 2nd Edn. Lushs Practice of the Superior Courts at Westminster, 3rd Edn.,
by Dixon. Macphersons New procedure of the Civil Courts of British India. Madras High Court Reports, the. (H. C. R.)
Madras Jurist, the. (M. J.)
&c., of the Court of Chancery, 4th Edn.
R. (or R. G.) H. T., 1853; Rules (General) of Hilary Term,
1853; &c. Reports of Law Commissioners. Richardsons English Dictionary. Russells powers and duty of an Arbitrator. Sandars' Institutes of Justinian. Sedgwicle on the Measure of Damages, 2nd Edn. Selwyns Law of Nisi Prius, by Keane and Smith, 13th Edn. Seton on Forms of Decrees. Shelfords Law of Railways, by Glen, 4th Edn. Sheppards Touchstone of common assurances, by Preston, 7th Edn. Sloans Judicial and Land Revenue Code, 1862. Sloans Practice of the Mofussil Courts, 2nd Edn., 1868. Smiths Compendium of Mercantile Law, by Dowdeswell. Smiths Leading Cases, by Maude and Chitty, 6th Edn. Smiths Practice of the Court of Chancery, 7th Edn. Smiths real and personal Property. Snells Principles of Equity, 2nd Edn. Stephens Commentaries on the Laws of England, 5th Edn. Storys Equity Jurisprudence, by Redfield, 9th Edn. Tuylors Law of Evidence, 5th Edn. Termes de la Ley, 1629. Theobalds Acts of the Governor-General of India in Council. Tidds Practice of the Courts of Kings Bench, &c. 8th Edn. Tomkins and Jenckens Compendium of Modern Roman Law. Tomlins Law Dictionary, 4th Edn., by Granger. Viners Abridgment of Law and Equity. Wedgwoods English Etymology. Whartons Law Dictionary, 4th Edn. Wheatons International Law, by Dana, 8th Edn. Williams' principles and practice of Pleading.