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found in the reports of Lord Chief Justice Willes, Mr. Serjeant Wilson, Mr. Justice Blackstone, Mr. Henry Blackstone, Messrs. Bosanquet & Puller, and Mr. William Pyle Taunton: And lastly, so much of the official practice was added, as the Author could collect from the books upon the subject, or was suggested by his own experience and observation.

In the sixth edition, which appeared in January, 1817, the proceedings in actions by and against attorneys, and against prisoners in custody of the sheriff, &c. and for the removal of causes from inferior courts, were placed before the declaration, and time for pleading in ordinary cases; and some other transpositions were made, for the sake of perspicuity, and in order more clearly to connect the different parts of the subject. The law and practice of arrest were treated of altogether, in the ninth Chapter; and the motions and rules of the courts were newly arranged, in the eighteenth; which also included the doctrine of attachments, with the mode of proceeding thereon, and some addition to the practice by summons and order. In a subsequent Chapter, a general view was taken of the rolls of the courts, on which issues and other matters of record are entered, with the entries thereon, and by whom, and in what manner they are made, and the time and mode of bringing in and docketing them; and, in the Chapter on executions, the writ of retorno habendo in replevin was treated of, as well as the writ of habere facias possessionem in ejectment. The stamp duties on legal proceedings, which have been since abolished, were also carefully stated in that edition, from the last general stamp act.

In the seventh edition, which was published in January, 1821, besides other important alterations and additions, which are particularly noticed in the preface thereto, the execution by levari facias, and the law and practice of extents, in chief and in aid, with the proceedings thereon, for the crown or its debtor to obtain execution, or for the defendant or a third person to resist them, were made the subject of a separate Chapter; and, in the following one, the writ of scire facias for the king was treated of, with the proceedings thereon, for the recovery of his debts, or obtaining a repeal of letters patent.

In the eighth edition, which was published in June, 1824, besides bringing down the acts of parliament, rules of court, and practical decisions, to the end of Michaelmas term preceding, some further important alterations and additions were made. The third Chapter was divided, and confined, in that edition, to the admission, enrolment, certificates, and readmission of attorneys; their privileges, disabilities, and duties, with the consequences of their misbehaviour. The remainder of that Chapter, consisting of the proceedings in actions by and against attorneys, &c. and for the recovery and taxation of their costs, was made the subject of a

separate one, being the fourteenth. The numerous decisions respecting attorneys and bail, occasioned considerable alterations and additions in the third and twelfth Chapters; and in the nineteenth, there was a new and copious arrangement of the cases in which attachments for contempt might be moved for. The Chapter in the former additions, on "motions and rules, &c. and the practice by summons and order, &c." was also divided; and an additional one formed out of it, being the twentieth in the eighth addition, on "motions and rules, &c. peculiar to the action of ejectment, and affidavits in support of them, and such motions and rules as were not necessarily connected with any suit;" in which Chapter was included a full account of the motion and rule for setting aside an annuity, and delivering up the securities to be cancelled, &c. with the decisions of the courts, on the statutes 17 Geo. III. c. 26, 53 Geo. III. c. 141, and 3 Geo. IV. c. 92. And, in the thirty-fifth Chapter, an outline was given of written evidence, referring to the different books in which the subject was more fully treated of. That edition too was greatly improved by the insertion of some very valuable notes, and references to MSS. cases of practice, never before published, which were kindly communicated to the Author by Mr. Justice Holroyd. Some references were also made therein to the reports of Sir Orlando Bridgman, and to the first volume of those of the late Lord Kenyon. Of the alterations and improvements in the present edition, a full account is given in the Preface.

The general order of the proceedings is the same in the courts of King's Bench and Common Pleas: and the reader will observe, that, without breaking in upon that order, the author has first of all treated of the practice that is common to both, and then of what is peculiar to each, or different in one from the other of them. When the practice is the same in both courts, it is in general so stated, by using the word "courts" in the plural number; and where the peculiarity or difference between them is considerable, it is commonly made the subject of a distinct paragraph; but otherwise it is noticed in the same paragraph, and most frequently at the end of it. In referring to the rules, they are marked with the initials of the courts to which they belong; and in citing the cases, the court in which they were decided is in general mentioned. It should still be remembered, however, that the practice was originally written for, and confined to the court of King's Bench: and hence, where the "court" is mentioned in the singular number, it must be understood to mean that court, unless the subject-matter appear by the context, or reference to the notes, to relate to the practice of both courts, or be confined to that of the court of Common Pleas. Whenever the practice of the Exchequer of Pleas is introduced, that court is always particularly mentioned.

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For the original cases referred to in the course of the work, the profes

sion are chiefly indebted to Mr. Justice Holroyd, the late Mr. Serjeant Runnington, the late Mr. George Wilson, one of his majesty's learned counsel, Mr. Abbot, (now Lord Colchester,) when at the bar, Mr. William Elias Taunton, and Messrs. Maule & Selwyn; whose initials are added in the Table, to the names of the cases they respectively furnished.* The few which are not marked, were communicated singly, by other friends, at different times.

* The cases of Mr. Justice Holroyd are from M. 16 to E. 37 Geo. III.; those of Mr. Serjeant Runnington, from E. 18 to M. 37 Geo. III.; those of Mr. Wilson, from M. 22 to T. 31 Geo. III.; those of Mr. Abbot, from E. 32 to E. 39 Geo. III.; those of Mr. Taunton, from H. 40 to M. 49 Geo. III.; and those of Messrs. Maule & Selwyn, from E. 56 to T. 57 Geo, III, inclusive.

CHAPTER I.

Of ACTIONS, and the TIME limited for their COMMENCEMENT; and of NOTICES of ACTION, fc.

ACTIONS are commonly divided into criminal, or such as concern pleas of the crown, and civil, or such as concern common pleas. (a) And these latter are again divided into real, personal, and mixed actions. In a real action, the proceedings are in rem, for the recovery of real property only; in a personal action, they are in personam, for the recovery of specific chattels, or of some pecuniary satisfaction or recompence; and in a mixed action, they are in rem et personam, for the recovery of real property, and damages for withholding it. Again, in real actions, there is a distinction between those founded on the possession, and those founded on the absolute property or right.(b)

Personal actions are ex contractu, vel ex delicto; being founded upon contracts, or for wrongs independently of contract. (e) Actions upon CONTRACTS are Account, Assumpsit, Covenant, Debt, Annuity, and Scire facias.

ACCOUNT lies, at common law, against a guardian in socage, bailiff, or receiver, to compel an account of profits, or moneys received by the defendant;(d) and by the statute 4 & 5 Anne, c. 16, § 27, it may be maintained against the executors and administrators of every guardian, bailiff, and receiver, and also by one joint-tenant and tenant in common, his executors and administrators, against the other, as bailiff, for receiving more than comes to his just share or proportion, and against his executors and administrators. The proceedings in this action being difficult,

dilatory, and expensive, it is now seldom used, especially as [ 2 ] the party has in general a more beneficial remedy, by action for money had and received, &c.; or, if the matter be of a complicated nature, by resorting to a court of equity. It has been ruled at Nisi Prius, that an action of assumpsit cannot be maintained on a running account between merchants, or a merchant and his broker; the proper

(a) Co. Lit. 284, b. Cowp. 391.

(b) Steph. Pl. 3, and see Com. Dig. tit. Action, D. 2.

(e) 1 Bac. Abr. 26. Gib. C. P. 5. The outline here given of personal actions is not intended to point out the particular cases in which they are, or are not maintainable; but merely to exhibit a general view of them, and the form they assume in pleading, to which the practice of the courts more immediately relates. To fill up this outline, and obtain full information on the doctrine of personal actions, and the facts necessary to support them, see, besides the more elementary works of Mr. Justice Blackstone, Reeves, and Wooddeson, the appropriate titles in the Abridgements of Rolle, D' Anvers, Viner, and Bacon; Comyns's Digest; Lord Chief Baron Gilbert's treatises on the actions of debt and replevin; Mr. Wilkinson's Practice in the latter action; the law of Nisi Prius, by Mr. Justice Buller, Espinasse, and Selwyn; Mr. Serjeant Williams's Notes on Saunders; Chitty on Pleading, 1 V. Chap. II., and Mr. Serjeant Stephen's Principles of Pleading, 12, &c. In the action of assumpsit in particular, the contracts on which it is founded are very fully treated of by Mr. Comyn, and the pleadings therein by Mr. Serjeant E. Lawes. See also Mr. Roscoe's treatise on the law of actions relating to real property. (d) Co. Lit. 172, a.

VOL. I.-1

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