PREFACE. The present work constitutes an appropriate sequel to my former work on Equity Jurisprudence. In that, my endeavour was, to bring together the leading principles of that highly important branch of the science of Law ; in this, the principles, there developed, are connected with the forms of the proceedings, by which rights are vindicated, and wrongs are redressed, in Courts of Equity. The principles are thus seen in their actual practical applications; and many limitations of them, otherwise unobserved, will be easily perceived and constantly illustrated. As the present work is confessedly one of a purely technical character, and many of the rules are either of an arbitrary nature, or of a conventional form, it is not easy, in a great variety of instances, to find the exact reasons, on which they are built, or by which they are sustained. For the purpose of order, and just method, and reasonable certainty, and simplicity, in the proceedings of Courts of Justice, it seems indispensable, that there should be some prescribed forms, in which the allegations and statements of the .grievances complained of, and the matters of defence, should be set forth, and the times when, and the modes by which, they are to be insisted on, should be established. Otherwise, every suit would be involved in endless perplexity or confusion; and it might be difficult, if not impracticable, to ascertain, what in reality constituted the true points of the plaintiff's claim, or of the defendant's defence. Hence, in every system designed for the administration of EQ. PL. b public justice, there will be found to have been some regular modes prescribed for the ordinary cases put in litigation ; and from time to time, as new cases have arisen of an unusual and extraordinary character, the old forms have been modified, or new forms have been introduced. Since there must be some rules, the choice is often a mere measuring cast between one regulation and another ; and yet that choice must be made ; and, when made, the regulation must be uniformly acted on. The surprise, therefore, is 'not, that we should sometimes be unable to assign a satisfactory reason for one particular regulation, in preference to another. But it rather is, that so many regulations can be expounded upon grounds of general convenience, and vindicated, as reasonable and just in themselves. I am aware, that in a treatise so purely technical, there is little room for any thing more than dry details, and clear and accurate statements. The subject forbids ornament; and it must be discussed with a close and almost servile obedience to authority. When, however, a doctrine seemed to me to require some qualification, or to admit of a fuller exposition, which might be usefully brought before the attentive reader, I have endeavoured to make the notes the vehicle, either of criticism, or of information. I have quoted passages from leading authorities on particular points, with a view to convey to the student some views, which a brief text would scarcely suggest to his thoughts. These quotations will be found, as I trust, useful in explaining difficulties, and in promoting accurate inquiries, and in furnishing hints for future practice. This has not been the least laborious part of the work. The structure of every Treatise on the subject of Equity Pleadings, must be essentially founded on Lord Redesdale's admirable work on Pleadings in the Court of Chancery. That Treatise has been well described by Lord Eldon to be “a wonderful effort to collect, what is to be deduced from authorities, speaking so little, what is clear. And the surprise is not from the difficulty of understanding all he has said ; but that so much can be understood.”Sir Thomas Plumer, in his mas 1 Lord Eldon, Lloyd v. Johnes, 9 Ves. 54. terly judgment in a cause of great celebrity has also said ; “ To no authority, living or dead, could reference be had with more propriety for correct information respecting the principles, by which Courts of Equity are governed, than to one, whose knowledge and experience have enabled him, fifty years ago, 10 reduce the whole subject to a system with such a universally acknowledged learning, accuracy, and discrimination, as to have been ever since received by the whole profession as an authoritative standard and guide. Vivfenti tibi præsentes largimur honores." The learned Judge and noble author have, since that sentence was pronounced, both passed to the grave; and we, who survive, feel the truth and value of this tribute, with all the affectionate reverence, which belongs to posthumous praise. Never could the voice of praise come to an author with a higher grace, than from the lips of such eminent men. It is the privileged case ; – Laudari a viris laudatis. I bave transferred into my own pages all the most valuable materials of Lord Redesdale's Treatise ; and generally, where I could, in his own language, which I have not the presumption to think I could improve, and from which I have rarely deviated, except to insist upon some qualification, or to make his text occasionally more definite and clear. I have also freely used the materials in Mr. Cooper's and Mr. Beames's excellent Treatises on Equity Pleadings, as auxiliaries to that of Lord Redesdale. Each of them is under the same obligations to him as myself, having drawn many of their materials from the same great source. There is one prominent defect in all these treatises, and that is the want of a comprehensive and accurate view of the principles, which govern that most intricate and important branch of Equity Pleadings, the subject of the proper and necessary Parties to Bills. My aim has been, as far as I could, but perhaps not with entire success, to supply this defect. I had not an opportunity of seeing Mr. Calvert's Treatise on Parties to Bills in Equity, until after my own chapter on the same head had been completed, and the work itself was in the press. 1 Cholmondeley v. Clinton, 2 Jac. & Walk. 151. Upon a review of his book, I have the consolation to find, that I had not overlooked any very important authorities bearing on this subject. I have, however, availed myself of his learned researches for a few suggestions, which had not before so closely attracted my attention. In submitting the present volume to the profession, I beg to return my grateful acknowledgments for the kind manner, in which my former labors have been received ; and to ask an indulgent consideration for that, which is now offered. The task has been one of severe, and exhausting effort, scarcely relieved by any consoling circumstance, except the consciousness of the performance of duty. It has been difficult to keep up a continued attention to the dry details of technical learning in the midst of my other various judicial and professorial engagements. At some future day I hope to find leisure to complete my original design by furnishing an elementary outline of the Practice of Courts of Equity, from the first inception of the cause, through all its various stages, to the execution of its final decree, under the orders of the highest Court of Appeal. Let me in conclusion say, to the diligent student, that a thorough mastery of the science of Equity Pleadings, if not absolutely indispensable to professional success and eminence, will, at all events, be found in a very high degree to promote them. Let him ponder well upon the admonition contained in the language of that great jurist of antiquity, Cicero,-“ Sic igitur instructus veniet ad causas ; quarum habebit genera primum ipsa cognita ; erit enim ei perspectum, nihil ambigi posse, in quo non aut controversiam faciat, aut verba ; res, aut, de vero, aut de recto, aut de nomine ; verba, aut de ambiguo, aut de contrario.” 1 CAMBRIDGE, January 1, 1838. i Cicero, Orator, ch. 34. Bills not praying relief-Bills to perpetuate Testimony Bills not Original-Supplemental Bills-Bills of Re- peaching Decrees 326-432 |