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reported in manuscripts before 1804, and rather more fully, as probably they will never be found in any other work: these are selections from decisions made, some before 1775, and others after that period to 1804; in a large part of which cases the author was counsel, hence was in a situation correctly to understand them. It has been a part of the plan, in considering each subject of importance, first to give a general view of it, under the terms, general principles, illustrated, usually, by rules and cases; then to enter on particulars on the same subject; believing that in this way the parts of a subject are best understood, and their analogies perceived, especially by students. Having treated a subject, or an important case, in its parts, it has been found useful, if not necessary, to inake, in some cases, some remarks, comments, or notes, to explain, not only for the benefit of those who most need explanation, but to caution against admitting judicial decisions as authorities, where the remote principle, on which they are made, is not admitted.
8. It has been another object, to treat a party's right and remedy in connexion; as, in the same chapter, or article, in numerous cases, and wherever his right and title to property, to things in action, to damages or redress, are investigated by his counsel with an immediate view to the suit or remedy. Hence much of the law relating to such rights and titles is found under the proper action; as, account, assumpsit, case, covenant, debt, ejectment, &c.; and when such titles and rights have been of a nature to come under one or another kind of action, the prevailing fitness has been most regarded. The reasons for adopting this course being many, they can be seen but by the work itself.
9. Original authorities have always been preferred, principally relied on and resorted to. Digests and abridgments have been relied on only when found correct, or when deemed to be so, by reason of their agreement with known and settled law in other cases; but Cruise, Comyns, Bacon, and other digests and abridgments, have been extensively cited, or referred to in the margin, &c. as directing to many good authorities, and as corroborative. Not much reliance has been had on nisi prius cases; nor much on divided opinions.
10 It has been a rule, to abridge, considerably at length, certain leading cases; as Gelston and Hoyt, Bent and Baker, Freeman and Pasley, Liter and Green, &c. because it has been considered that it is of vast importance that such cases be correctly understood :-to be so, the facts, the points, and decisions must be correctly stated: other cases will appear to be so stated, when not so in fact, because it has been a rule not to divide a case so often as is usually done :-instance, Gelston and Hoyt; this case is best understood when the twenty or more material points decided in it are examined together; not when, by an abridger, scattered under twenty or more different heads.
11. It has been another object, to form a general abridgment and digest of American law, calculated to afford a general knowledge of it; and to lead to a more diligent study of it: hence the parts of it are arranged to be studied critically, in connexion with the authorities referred to, as each one may have time and abilities, and most occasion for one division after another; and so to form it to receive additions, without materially disturbing the order of it. For to make such a work permanently useful, law must be added as it shall come into existence, and the plan be so formed as conveniently to receive it. And it is proper that such a work have in it, a material portion of American law on every subject, on which questions in law or equity may arise.
12. It may be understood, that as Massachusetts statutes, State and Colonial, and judicial decisions, occupy their several places in different parts of the work, in relation to Federal law, a lawyer in any other State may, if he choose, substitute the statutes and such decisions of his own State, in the stead and places of those of Massachusetts, when he shall use this work. By Federal law is meant the Federal constitutions, acts of the Federal legislature and of the Federal executive, and judicial decisions thereon; and, in a broader sense, is meant by Federal law, any law that pervades the whole Federal territory, whether of English or American origin.
THE PARTS OF THE WORK, HOW ARRANGED, &c.
Herein the main object has been to avoid two evils in the entire alphabetical order-1st, The bringing together to be read, perhaps in the same hour, matters totally disconnected-2d, The entangling the student in his outset, in some of the most abstruse parts of the law. Some parts of the law are connected, either by original principle, or by falling under the same kind of action or remedy, so that they are connected enough to make it some object to read, and especially to study them in connexion, and as forming a division, or branch, of the law of the land.
In the arrangement, it was thought best not to make fewer divisions than 28; as in these, matters fall into one division, connected only by a general principle, as resting on some one kind of contract, or growing out of some one species of torts, or connected only by falling under some sort of remedy or suit; as the action of assumpsit or debt;-or sometimes connected by both the principle and remedy, as the fifth division, assumpsit. Sometimes the alphabetical order does well enough, as in the order of personal actions, as account, assumpsit, case, covenant, debt, detinue, replevin, and trespass. No doubt some would prefer more divisions, as in that of debt, and make four of it, as the grounds of it would direct; but others may think it connexion enough, if the
matters of the division be connected by falling under one kind of action or remedy; or by resting on some one ground; or connected by established practice, and the best authors, as general pleadings are; or if conveniently studied together.
ANALYSIS OF THE TABLE OF CONTENTS.
In this is seen, in detail, the arrangement of the several parts of the work, divided into 228 chapters, the first words in each expressing the subject matter of it. The chapters are generally divided each into articles, and the first words in each article express the subject of it; and usually each article into sections, and often the first words in the section express the subject of it. So that the matter of each may be readily seen. The 228 chapters contain 1707 articles, and these about 20,000 sections.
As to forms in pleading, a few select ones will be found in this work, and many useful ones referred to, especially in notes of reference at the close of various chapters, many from Wentworth's Complete System of Pleadings (in ten volumes) as it refers to near all the English forms, ancient and modern.
1st Division. This embraces contracts generally, and the origin, considerations and principles of them, in chapter 1st, considered at large in those parts of the work in which various rights and remedies
rest on contracts.
2d Division, Ch. 2.-Various Remedies by the acts of the parties, largely considered on principle, or in detail, under the usual heads.
3d Division, Ch. 3, 4, 5, 6, 7.-Embracing the general grounds and principles of actions in various forms, pursued and explained in detail in subsequent chapters whenever necessary or proper.
4th Division, includes the action of Account, and contracts on which it lies, in chapter 8, as fully considered as is proper in a general abridgment and digest.
5th Division, embraces Assumpsit, and the various contracts on which the action is founded, in chapters 9 to 57. This very large division of the law embraces 49 distinct grounds of action; that is, simple contracts, applied to so many purposes. It has been found convenient, and no violation of principle, to consider them, generally, in alphabetical order. Though the contracts in this division are many and made to many purposes, and the actions thereon are numerous, they all rest on the same principles; the general issue, and principles of declaring, are the same in all; and usually a great part of a young lawyer's business belongs to this division.
6th Division. This includes all those Torts, which are the grounds of the action on the case on torts, in chapters 58 to 79. After considering the nature of these torts, and the foundation of this action on the case, generally, in chapters 58 and 59, the several subjects are conveniently treated alphabetically; collecting generally the law on such subjects.
7th Division. This includes Evidence, in chapters 80 to 100; also Demurrers to Evidence, and Bills of Exceptions. Each chapter contains its proper branch of evidence, illustrated by cases considered as largely as is consistent with the nature of the work. After treating evidence on general principles, explained by cases, and somewhat at large in chapter 80, the branches of evidence, as in relation to books, copies confessions, character, damages, deeds, depositions, affidavits, hand-writing, hearsay, &c. &c. are considered conveniently enough in the above order.
8th Division.-This embraces Covenants, and Actions on them, in their numerous branches, as to personal and real property, in chapters 101 to 124; including therein conveyances, in the same deeds covenants are; as the same deed conveys property, and usually by covenants in it assures the property. This division also embraces Seizin and Disseizin, so essential to be attended to in conveyances, and so materially affecting them; also Vouchers on Covenants, and Pleadings peculiar to Covenants and Vouchers.
9th Division, is, as to the various kinds of Estates and Titles to them, in all their usual branches, in chapters 125 to 156, largely considered, on general and common law principles, here recognized, and American statute law, more especially that of Massachusetts and Maine.
10th Division. This embraces Writs of Error and certiorari, in chapters 137 and 138. These go together, and make one division; but quite distinct from every other division, their place in the arrangement is indifferent, as they relate to almost all kinds of actions &c.
11th Division.-This includes the Grounds of Debt and Detinue, and the Actions of Debt and Detinue thereon, whether contracts, judgments, penal statutes, recognizances, &c. and pleadings peculiar thereto. Though debt is founded on all these grounds, yet it is mainly on penal laws, and on acts done in court &c. and before magistrates-largely treated in chapters 139 to 170. The grounds of this action are more various than those of any other; being 1st, penal laws, governed however, as to these, on the same principles: 2d. Contracts sealed, all as to these on the same principles: Sd. Judgments, uniform as a ground of action: 4th. Such acts by a person, who acknowledges himself bound &c. Having in chapter 139 considered contracts somewhat at
large in relation to the action of debt, the several branches follow in the above order, as debt on annuity, contracts, arbitration bonds, awards, &c. 12th Division.-This includes the Action of Replevin, and Trespass vi et armis; the various grounds of and pleadings in them; in chapters 171, 172, and 173.
18th Division-This embraces General Pleadings, in their several branches, suited to our American practice, and Amendments in pleadings, in chapters 174 to 185, including trials and new trials, and the various matters and laws thereto appertaining, according to the usual arrangements. Also stating what pleas are proper in each kind of action, briefly in personal, at large in ejectments and land actions, except some critical examination in regard to writs of right, to be found in division 28
14th Division. This is as to Pleadings in certain cases, and the grounds and principles thereof; as in audita quarela, mandamus, procedendo, several kinds of prohibitions, quo warranto, informations, &c. in chapter 186.
15th Division. This includes the Principles on which the courts of the United States, and those of Massachusetts, and in substance, Maine, proceed, and on which instituted; and their powers and duties generally, from their earliest establishment to 1821; sundry General Principles, and many Maxims of Law, binding on all courts; in chapter 187. As to this subject, it has been found that but little can be written to any good purpose, while the American courts are so often newmodelled.
16th Division.-In this are considered Appeals, in chapter 188; Writs of Review, in chapter 189; Writs of Scire Facias, in chapter 190; Partitions, in chapter 191; and Trustee actions, in chapter 192; and the pleadings in each, the grounds thereof, the laws and matters as to each.
17th Division, includes, in chapter 193, a Synopsis, or summary view of Pleadings in the courts of law and equity, in Civil and Criminal Cases, in 45 articles. This is placed between pleadings at large in civil and criminal cases; perhaps many would place it before either. The real object of it is, to afford the student, in some stage of his duties, a correct view in a few pages of the parts and first principles of a complete system of pleadings, and to aid him in avoiding the confusion in his mind, which an immense number of pleas, and parts of pleadings, naturally produce, when seen but at large, and scattered as they are, in many large volumes.
18th Division.-Contains, in chapter 194, sundry matters in Practice in various parts of judicial proceedings. This head is of modern date;