rules of the Courts are treated, sometimes, with derision, and the statutes disparaged, as both unworthy the attention of a philosophic and liberal mind. I am inclined to think that there are few things, which have had a greater tendency to bring the judiciary into disrepute, than the contemptuous manner in which lawyers permit themselves to speak of the statute law. The great mass of the people of this country regard the statutes as the only authoritative law, and to hear them spoken slightingly of, offends their prejudices. A greater mistake could not be made by lawyers. A keen and strong-minded man once made the remark to me, after he had attended a session of a Court, that lawyers did not even know the rules of the Court in which they were practising. It is worthy of observation too, that when an opinion is pronounced by the Supreme Court, upon a question of practice, it is almost uniformly prefaced by the declaration that the question is important, because it is a question of practice. In England, this department of the law is considered as deserving special attention.

That the present work, which was undertaken in order to give to students and the younger members of the bar, some aid in acquiring a species of knowledge which they will, sooner or later, find to be an essential part of their professional education, will meet all the wants of the profession, I do not dare to affirm. There will doubtless be some complaint of its want of fulness. But it does not profess to be a digest, but rather a statement of the leading principles upon various matters of practice, illustrated by a reference only to leading modern cases. In passing judgment upon a work, devoted to the elucidation of what has always been regarded, in this country, as a humble and sub

ordinate branch of jurisprudence, it must be considered, that the practice of this Commonwealth has always been distinguished for its severe simplicity; that any work on this subject must necessarily be local in its character; and that its cost must be somewhat governed by its circulation. I have endeavored throughout the work to make the extent of the investigation bear a proper proportion to the usefulness and importance of the subject-matter of inquiry. It would have been quite easy to have written fifty pages on the subject of motions in arrest of judgment; but such motions are not made, and ought not to be made oftener than once in about a thousand cases. In regard to the New England States, the general features of legal practice are the same in all, and reference has therefore been made to their decisions, especially those of Maine and New Hampshire.

The system of practice, which prevails in Massachusetts, and which it is the object of this work to develope, is probably the most beautiful and simple system that now exists in the world. When the statutes were revised, in the year eighteen hundred and thirty-six, by an able and learned board of commissioners, greater changes were made in the mode of administering justice, than in any other part of the statutes. It was a leading object with the commissioners to simplify the modes of proceeding in the various Courts, and it has been steadily pursued by subsequent legislatures. Many of the decisions to be found in the Reports were incorporated into the Code, or expressly repealed, so that the Revised Statutes became, to a certain extent, a treatise on practice. The directness and simplicity of our system may be shown by the fact, that Mr. Chitty's work upon Eng

lish practice is contained in no less than four ponderous volumes. When such a treatise is necessary upon this subject, it is conclusive evidence that a reform is needed. Such a reform is about being made in the State of New York, which has heretofore adopted the English modes of procedure, and there is reason to believe that it will be radical and complete.

The Revised Statutes necessarily constitute the basis of the present work. In some instances, such as the levy of executions on real estate, the chapter has been merely referred to; as they are supposed to be in the hands of every lawyer, and, it would be scarcely just to the profession to make a mere reprint of so many pages of statutory provisions, which require neither comment nor explanation.

The rules of the Court of Common Pleas and of the Supreme Court of this Commonwealth, which they are expressly authorized to make, together with those of the Circuit Court of the United States for the first circuit and in admiralty, and which are a most important part of the system of practice, are printed in the Appendix. These rules are not incorporated into the body of the work, for the same reasons that entire chapters of the Revised Statutes are omitted. They are referred to, when a reference seemed to be necessary. It is to be presumed that every lawyer will make himself familiar with the rules, as they are not less binding than the statutes, upon parties, counsel and Judges. Unless a power of dispensation be reserved by the rules, they cannot be set aside by the Court. Thus where, in consequence of misinformation given by the Judge to an attorney, a plea in abatement was not filed until the fifth day of the term, and it was allowed to be filed afterwards, the proceeding

was held to be erroneous, as in contravention of the rule. Thompson v. Hatch, 3 Pick. 512.

In the present treatise, the mode of citing authorities, which has been generally adopted in other works upon the subject, has been followed. The authorities are given in the text, instead of being placed at the foot of the page. Most of the references are to modern cases and "the latest of the modern." A legal work that has a copious or even redundant quantity of citations appears to show industry and learning on the part of its author; but every experienced lawyer knows that this labor is so easy that it is nearly mechanical. By means of digests, any quantity of references may be cheaply furnished by the yard or perch. Thus, the principle, that parol evidence cannot be admitted to contradict a written instrument, may be illustrated by cases enough to fill a large volume.

The arrangement of the chapters is intended to be, so far as practicable, the history of a cause from the first origin of the controversy to its close; of the steps, which may be successively taken from the moment a client applies to an attorney, for his professional aid, to the time when he has exhausted all the means afforded by the law, to gain his suit, or to correct erroneous proceedings when judgment has been entered against him.

A series of practical forms, which, it is thought, may prove useful to the profession, are added in the Appendix.

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CHAPTER II.

PRELIMINARY AND PRECAUTIONARY MEASURES BEFORE THE COMMENCEMENT OF LEGAL PROCEEDINGS.

THERE is no part of the duty of an attorney, so important to himself, to his clients, and the public, as a careful attention to his preliminary measures. Many a good cause has been lost because an action has been prematurely commenced. After a suit is brought and process served, no step can be taken without notice to the adverse party, nor generally without opposition and great peril to the party making the application. If more attention were universally bestowed upon cases before proceedings were instituted, we should hear of fewer nonsuits, petitions to amend, motions for continuance, delay, and new trials. It ought to be the pride, as it is clearly the duty of the profession, to see that justice is administered "speedily and without delay," and it is useless to expect it, unless both care and labor are bestowed upon every case, so that it shall be well understood, before hostilities are actually commenced. This injunction is the more important amongst a people, who are proverbially energetic and hasty in action, and because it is too generally neglected. The first inquiry of an attorney, who is called upon to commence legal proceedings, should be, whether the case be one that requires the instant issue of process. There are many cases of this description, and they must occur frequently in the practice of every lawyer. A debtor is about to abscond, or to make a conveyance of his property to defraud his creditors; a