ADVERTISEMENT. THE Author trusts, that when the time necessary to pass through the press a Volume requiring so much accuracy, and containing so many references, and the number of cases which are daily occurring upon the subject of Practice are considered, the Profession will appreciate his motive for publishing the following Treatise in separate portions. As little delay as possible will occur in bringing out the remainder of the Work; and in the meantime, it is hoped that the copious Index which is added to the present Volume will in some measure prevent the inconvenience which might otherwise be experienced from the delay. PREFACE. WHATEVER apology may be due to the Profession for the manner in which the work has been executed, the Author does not conceive that he is called upon to offer any for the publication of a new Treatise on the Practice of the Court of Chancery. The want of such a Treatise, on a more extended scale than those hitherto published, has long been acknowledged; and the writer feels, that in undertaking one, he is only complying with the wishes of the Profession. Whether the ensuing pages will supply the want which has been felt, is not for him to say; indeed, when he compares what he has accomplished with the previous notions which he had formed in his own mind as to the requisites of a good book of practice, it is with unfeigned diffidence that he commits his work to the Public. He trusts, however, that if he has not performed all that he aimed at, his endeavours to throw light upon this complicated subject will not have proved entirely ineffectual. The object which the Author has had in view has been to lay before the reader, not merely the abstract rules of practice, collected from the text-books and marginal notes of reports, but to show, as far as could be done, the principles upon which the various rules have been framed, and to point out how far those principles have been followed up in the decisions to be found in the reported cases. He has also endeavoured to bring under the eye of the practitioner the several alterations and modifications which have been made, in the course of proceeding, by the numerous Statutes and Orders of Court which have, of late years, been framed, and to show how far those alterations and modifications are consistent with the ancient practice and the principles by which it was governed. In doing this, he has drawn largely from the excellent work of Lord Chief Baron Gilbert, and from the older text-books and the modern editions of them, as well as from several of the more recent publications. In referring to text-books for information, he has been careful to avoid citing them in any case where the authorities upon which they proceeded were accessible, without a careful inspection and collation of such authorities; and he can venture to assure the Profession that there are few, if any, of the numerous cases cited and referred to in the following Treatise which have not been carefully examined by himself; and that he has also, in every instance in which there has appeared any doubt as to the correctness of the report, made it a rule to refer to the statement of the case in the Registrar's book. In discussing the modern alterations which have taken place under the new Orders and Statutes, he has not always had the advantage of reported cases for his guidance, he has, however, derived considerable assistance from the Report of the Commissioners, appointed in the year 1824, to inquire into the Practice of the High Court of Chancery, and of the explanatory paper annexed to that document. He has also derived much useful information from the notes and explanations in Mr. Jemmett's edition of Sir Edward Sugden's Acts. The same sources, however, have not supplied information as to all the recent Sta tutes and Orders; and in such cases he has had no alternative but to state the alteration which has taken place without comment, or to offer the result of his own reasoning and conjectures upon them. With regard to the "Practical Observations on the Pleadings in the Court," which are incorporated in the following Treatise, the Author owes it to some of his friends, for whose judgment he has the highest respect, to say, that it is contrary to their opinions that he has ventured to introduce them. It must, however, be admitted, that it is extremely difficult in a work of this nature to separate pleading from practice: many points in each are so intimately connected with or arise out of the other, that it is scarcely possible to shew the precise line of demarcation; besides which, the writer has himself, in the course of practice, so frequently felt the want of some book which should give him information as to many of the practical points connected with pleading, which every Chancery pleader is supposed to have learnt in the Draftman's office where he has acquired his rudiments, and which for that reason are never mentioned in any of the books of practice or publications upon pleading, that he cannot but expect that the incorporation in the following Treatise of such observations upon those points as his own limited experience and the communications of his friends have enabled him to collect, will be as acceptable to the Profession in general, and to the junior branches of it in particular, as it would have been to himself. The same expectation has induced him to make an attempt to reduce into some order the various points and decisions which occur upon the intricate subject of "Parties. The general plan adopted in the following pages has been (after pointing out the persons by and against whom a suit in Chancery may or may not be instituted, with the peculiarities in point of practice attached to each description of party litigant, and showing who the parties are that must necessarily be brought before the Court in each case,) to trace a suit in equity from its commencement to its termination, detailing all the practical points, whether relating to pleading or to practice, which may arise in every stage of the proceeding. In doing this he has endeavoured to discuss fully every point as it occurs, so that each chapter, and each section of every chapter, may set before the reader the whole law upon the subject of which it treats. By this means he has avoided the necessity of making, perpetually, "prospective references," which frequently occasion confusion, and are always inconvenient to the reader. The course thus pursued may sometimes have led to repetitions; but it is hoped that the instances in which it has done so will not be found very numerous. There only remains to the writer the agreeable task of returning his sincere thanks to his professional friends for the assistance which he has received from them in the course of his work. He has also to express his gratitude to the Officers of the Court, to whom he has had occasion to apply for information upon points arising within their respective departments, for the readiness with which such information has been communicated. In the Registrar's-office, particularly, he has met with attentions, which he is most happy to acknowledge; and he feels that he is adding much to the value of his work when he states that he is indebted to the kindness of Mr. Colville for much useful and valuable information. LINCOLN'S-INN, 2 March 6, 1837. TABLE OF CONTENTS. OF THE PERSONS BY WHOM A SUIT MAY BE INSTITUTED: Sect. 1. The King's Attorney-general 2. The Attorney-general to the Queen Consort CHAP. III. CHAP. IV. Page |