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A SELECTION

OF

PRECEDENTS OF PLEADING

Under the Judicature Acts

IN THE COMMON LAW DIVISIONS.

WITII

NOTES EXPLANATORY OF THE DIFFERENT CAUSES OF

ACTION AND GROUNDS OF DEFENCE;

AND

AN INTRODUCTORY TREATISE ON THE PRESENT

RULES AND PRINCIPLES OF PLEADING

AS ILLUSTRATED BY THE VARIOUS DECISIONS DOWN TO THE PRESENT TIME.

BY

JOHN CUNNINGHAM, Esq.,

OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW,

AUTHOR OF “THE LAW RELATING TO PARLIAMENTARY AND MUNICIPAL ELECTIONS AND PETITIONS."

AND

MILES WALKER MATTINSON, Esq.,

OF GRAY'S INN, BARRISTER-AT-LAW, LATE HOLDER OF A FIRST-CLASS STUDENTSHIP OF THE FOUR INNS QELQURT, ETC. ETC.

10

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NOV 1878
LONDON:

,
STEVENS AND HAYNE NA

Law Publishers,
BELL YARD, TEMPLE BAR.

1878.

LONDOX:

BRADBURY, AGNEW, & co., PRINTEKS, WHITEFRIARS.

PREFACE,

PROBABLY no part of our judicial system has been more completely revolutionized by the Judicature Acts than that which relates to Pleading; and this being the case, it is certainly somewhat remarkable that amid the multitude of valuable treatises that have appeared upon the new Practice, no work has yet been published upon the subject of Pleading. This fact suggested to the authors the idea of the book which is now submitted to the Profession.

The utility of a volume of Precedents of Pleadings can scarcely be questioned. The old works on the subject are now of comparatively little value owing to the radica] changes in the substance as well as in the form of pleadings; while a conspicuous proof of the continuing necessity for and value of Precedents is found in the fact that the framers of the Judicature Acts have themselves in Appendix C. acknowledged the want by there essaying in some measure to supply it. Some twentyseven forms will be found in this Appendix; but it is obvious that as they necessarily have reference to only a few causes of action, they are but a very partial help to the pleader.

The object of the present work is to supply precedents

of the more common form of pleadings in every important kind of action tried in what may still be called the Common Law Courts.

The various pleadings that appear in it have in nearly every case been settled by counsel of standing at the Bar, and form part of the record in cases that have been carried on up to trial or actually tried since the Judicature Acts came into operation.

Several of the pleadings are taken from the reports ; but this source of information was necessarily limited, and the authors are largely indebted to the courtesy of several of the Judges, the Associates and other officers connected with the Courts, to their brethren of the Bar, and to several eminent firms of Solicitors, for the forms which make up the body of the work, and which have been selected with great care from the abundant materials placed at their disposal.

It has seemed to the authors a considerable advantage to be enabled thus to produce a work composed of pleadings which have been drawn under a sense of responsibility in cases which have actually arisen, and which in their nature and facts may be taken as fairly representative of the class of cases that are continually arising in practice. And besides, such pleadings possess the additional value of having passed the adverse criticism of opposing counsel, and in some cases the ordeal of a contest at Judges' Chambers or in Court.

The authors, however, have not been content to take any pleadings on trust, no matter by whom settled; but have themselves, in the light of the latest decisions, exer

cised an active though cautious discretion in excluding or correcting any pleading which was clearly erroneous or imperfect.

Nearly the first hundred pages of the book are taken up with a treatise, as exhaustive as the means at the authors' command would admit, upon the subject of Pleading, including in it that of Parties, under the new system. All the new rules and the decisions upon them have been carefully collated; and it is hoped that this mass of matter, scattered, as will be seen, over a number of reports, and never before collected in one view, will be found of use to the pleader.

Numerous notes have been appended to the various headings under which the pleadings are arranged, and in these notes the object has been to present a brief outline of the law relating to the particular kind of action with which the pleading in question is concerned, and especially to exhibit in a clear light those parts of the law which ought to be present to the mind of the pleader. The scope of the work has not allowed the authors to attempt a complete exposition of the substantive law on any particular subject. Their object has not been to do this ; but rather to make a selection of matter which seemed to them likely to be most useful in practice.

It will be noticed that in classifying the pleadings the authors have adopted an alphabetical arrangement, that they have not made the common division into Contracts and Torts, and that they have grouped the statements of defence, &c., along with and under the same head as the statements of claim. It has seemed to them that in

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