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John Cunningham.

A selection of precedents of pleading under the Judicature acts in the common law divisions. With notes explanatory of the different causes of action and grounds of defence; and an introductory treatise on the present rules and principles of pleading as illustrated by the various decisions down to t online

. (page 1 of 92)
Online LibraryJohn CunninghamA selection of precedents of pleading under the Judicature acts in the common law divisions. With notes explanatory of the different causes of action and grounds of defence; and an introductory treatise on the present rules and principles of pleading as illustrated by the various decisions down to t → online text (page 1 of 92)
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1. 1. Co0^tr-®I|1^



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A SELECTION



PEECEDENTS OF PLEADII^^G,



A SELECTION



OP



PRECEDENTS OF PLEADING

IN THE COMMON LAW DIVISIONS.



yOTES EXPLANATORY OF THE DIFFERENT CAUSES OF
ACTION AND GROUNDS OF DEFENCE;



AX IXTEODUCTORY TREATISE ON THE PRESENT
RULES AND PRINCIPLES OF PLEADING

AS ILLUSTEATED BY THE VARIOUS DECISION'S DOW'N TO THE PIIESENT TDIE.



BY

JOHN CUNNINGHAM, Esq.,

OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW,

AUTHOR OF

"the law relating to PARLIAilENTARY AXD ML">'IC1PAL ELECTIONS AND PETITIONS.'



MILES WALKEE MATTINSON, Esq.,

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LONDON:
STEVENS AND HAYNES,

BELL YARD, TEMPLE BAR.
1878.



T
1976



LONDOX :

BRADBtRY, AGNEW, & CO., PEINTEItS, WHITEFHIAES.



PKEFACE



Peobably no part of our judicial system has been more
completely revolutionized by the Judicature Acts than
that which relates to Pleading ; and this being the case,
it is certainly somewhat remarkable that amid the multi-
tude of valuable treatises that have appeared upon the
new Practice, no work has yet been published upon the
subject of Pleading. This fact suggested to the authors
the idea of the book which is now submitted to the
Profession.

The utility of a volume of Precedents of Pleadings can
scarcely be questioned. The old works on the subject are
now of comparatively little value owing to the radical
changes in the substance as well as in the form of
j)leadings ; while a conspicuous proof of the continuing
necessity for and value of Precedents is found in the
fact that the framers of the Judicature Acts have them-
selves in Appendix C. acknowledged the want by there
essaying in some measure to supply it. Some twenty-
seven forms will be found in this Appendix ; but it is
obvious tliat as they necessarily have reference to only
a few causes of action, they are but a very partial help
to the pleader.

The object of the present work is to supply precedents



793SS,.



VI PREFACE.

of the more common form of pleadings in every important
kind of action tried in wliat may still be called the
Common Law Courts.

The various pleadings that appear in it have in nearly
every case been settled by counsel of standing at the Bar,
and form part of the record in cases that have been carried
on up to trial or actually tried smce the Judicature Acts
came into operation.

Several of the pleadings are taken from the reports ;
but this source of information was necessarily limited,
and the authors are largely indebted to the coui'tes}'^ of
several of the Judges, the Associates and other officers
connected with the Courts, to their brethren of the Bar,
and to several eminent firms of SoHcitors, for the forms
which make up the body of the work, and which have
been selected with great care from the abundant materials
placed at their disposal.

It has seemed to the authors a considerable advantage
to be enabled thus to produce a work composed of plead-
ings which have been drawn under a sense of responsi-
bility in cases which have actually arisen, and which in
their nature and facts may be taken as fairly representa-
tive of the class of cases that are continuall}' arising in
practice. And besides, such pleadings possess the addi-
tional value of having passed the adverse criticism of
opposing counsel, and in some cases the ordeal of a
contest at Judges' Chambers or in Court.

The authors, however, have not been content to take
any pleadings on trust, no matter by whom settled ; but
have themselves, in the light of the latest decisions, exer-



PREFACE. Vll

cised an active though cautious discretion in exchidiug
or correcting any pleading which was clearty erroneous
or imperfect.

Nearly the fii-st hundred pages of the book are taken
up with a treatise, as exhaustive as the means at the
authors' command would admit, upon the subject of Plead-
ing, including in it that of Parties, under the new system.
All. the new rules and the decisions upon them have been
carefully collated; and it is hoped that this mass of
matter, scattered, as will be seen, over a number of
reports, and never before collected in one view, will be
found of use to the pleader.

Numerous notes have been appended to the various
headings under which the pleadings are arranged, and in
these notes the object has been to present a brief outline
of the law relating to the particular kind of action with
which the pleading in question is concerned, and especially
to exhibit in a clear light' those parts of the law which
ought to be present to the mind of the pleader. The
scope of the work has not allowed the authors to attempt
a complete exposition of the substantive law on any par-
ticular subject. Theii' object has not been to do this ;
but rather to make a selection of matter which seemed to
them likely to be most useful in practice.

It will be noticed that in classifying the pleadings the
authors have adopted an alphabetical arrangement, that
they have not made the common division into Contracts
and Torts, and that they have grouped the statements of
defence, &.C., along with and under the same head as the
statements of claim. It has seemed to them that in



viii PREFACE.

adopting this course, while considerable economy of
space is secured, a practical advantage is gained. It
enables any one using the book the more readily to fiiid
the particular precedent of which he is in search; and
when he has found it, he will frequently have before
him in one view a complete set of pleadings on a given
subject, instead of having to search in different parts of
the book for defences adapted to claims, and replies to
defences. The plan has the additional advantage that it
has enabled the authors to give all the notes bearing on
each form of action compactly arranged in one place, and
thus saves the practitioner the trouble of looking for
the particular matter he wants through several parts of
the work.

The authors would take this opportunity of tendering
their thanks to their frieijd Mr. W. T. Waite, of Gray's
Inn, who has lent them cordial and valuable assistance in
the present undertaking.

J. C.

M. W. M.

1, The Cloistees, Temple,

October, 1878.



CONTENTS.



PAGE

TABLE SHOWING THE DATE OF EACH VOLUME OF THE
CURRENT REPORTS FROM THE YEAR 1S<;0 TO THE
PRESENT TIME xi

TABLE OF CASES xiii

ADDENDA xxxi

CHAPTER L — PARTIES TO PLEADINGS UNDER THE NEW

PROCEDURE 1

CHAPTER IL — GENERAL PRINCIPLES AND RULES OF

PLEADING 23

COMMENCEMENTS AND TERMINATIONS OF PLEADINGS . 91



PRECEDENTS AND NOTES.





PAGE




JAGE


Accord axd Satisfaction


lur,


Bonds ....


199


Account Stated


107


Breach of Contract


201


Agents ....


108


Breach op Promise of Mar-




Agistment ....


lU


riage ....


J207


Alteration


119


Charter-party .


214


Apprentice ....


120


Chose in Action .


238


Architect


123


Clergymen ....


244


Assault and Battery


12.5


Commission


247


Average ....


131


Common Carriers


254


Award


133


Copyright


277


Bail


135


Covenant ....


279


Bailments ....


UiG


Defamation


281


Bankers ....


140


Demurrer ....


294


Bankruptcy


153


Detinue ....


29G


Bills op Exchange


i(;4


Distress ....


3C0


Bill of Lading .


191


Easements


:!:J5



X


CONTENTS.






PAGE




PAGE


Executors and Adminis-




Nuisance . . . .


. 487


TKATOES . . . .


31.-,


■ Partners


. 501


False Imprisonment


•^•i:>


Patents . . . .


. 505


Ferocious Animals .


330


Penalty ....


. 511


Fraud ....


332


IlECOVERY OF LAND .


515


Goodwill ....


333


Eelease ....


: 530


Guarantee


335


PiEPLEVIN . . . .


. 531


Husband and Wife .


345


Eeward ....


. 53S


Illegality


355


Sale of Goods .


. 534


Immoral Consideration


356


Sale op Land .


•, 558


Infancy ....


357


Seduction .


. 506


Innkeeper ....


358


Sheriff ....


. 569


Insanity ....


302


Shipowner .


. 574


Insurance :—




Solicitor ....


. 575


Marine ....


, .363


Stock ....


. 568


Life ....


. 385


Stoppage in Transitu .


. 594


Fire ...'..


, 388


Surveyor .


. 595


Interpleader .


. 3<J2


Tenant ....


. 596


Judgments ....


. 394


Tender . .


. 599


Landlord and Tenant .


. 39S


Trespass de Bonis .


. 600


Limitation, Statutes of


. 413


Trespass to Land


. . 003


Malicious Arrest .


. 423


Trover ....


. 015


Malicious Prosecution .


. 425


Use and Occupation


. . 629


Market ....


. 432


Warehouse


. 634


Medical Practitioners .


. 433


Warranty .


. , 635


Misrepresentation


. 437


Work and Labour.


. 044


Money . . .


. 448


Wrongful Dismissal.


. . 648


Negligence


. 401






APPENDIX.






. 65T


INDEX


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2S



TABLE OF CASES.



Abbot v. Macfie, 463

— V. Parfit, 316
Abraham r. Cooke, 296
Absalom v. Marke, 181
Acebal v. Levy, 537
Adams v. Gibney, 399

— V. Jones, 169
Adeiis V. Thrigley, 29

Adie V. Western Bank of Scotland, 438,

450
Alder v. Boyle, 247
Aldous r. Comwell, 119
Aldrett v. Kettiidge, 153
Alexander v. Burchfield, 187

— V. Southey, 618
AUen *•. Bennett, 535

— V. Hayward, 489, 490

— V. Kemble, 170

— V. Smith, 619

Allison V. Bristol Marine Insurance
Co., 366
— V. Haydon, 433
Allsop V. Allsopp, 284
ALsager v. Clo.se, 618
Amor V. Fearon, 650
Anderson v. Edie, 385

— v. Fitzgerald, 385

— V. Pacific, &c., Insurance Co.,
368

Angrove v. Tippett, 418
A[>plebee v. Percy, 330
Appleby v. Myers, 645
Arbouin v. Anderson, 295
Archer v. Bamford, 193
Archibald ». Howth, 437



Ai-mfield v. Allport, 167
Armistead v. Wilde, 360
Armitage v. Insole, 538
Ai-mory v. Delamirie, 601, 617
Ami-strong v. London and York Itail.

Co., 463
Arnold v. Bradbury, 507

— V. Holbrooic, 487
Ashby V. Ashby, 317
A.shley v. Ashley, 385
Ashworth v. Stanwise, 502
Askew's Case, 450

Askew r. The Xorth Eastern Kail. Co.,

29
Aspinall v. Wake, 316
Astley V. Gurney, 158
Atkins V. Humphrey, 318
Attack V. Bramwell, 301
Atykns v. Pearce, 349
Aubert v. Gray, 365
Austin V. Dowling, 426

— V. Great Western Hail. Co., 261

Bagot r. Easton, 45
Baguelley v, Hawley, 635
Bailey v. Sweeting, 535
Bain v. Fothergill, 559
Baker v. Cartwright, 208

— V. Towry, 365
Baldwin ■;;. Casella, 330

— V. Parker, 537
Ball V. Ray, 448
Balls V. Wcstwood, 630
Balmer v. Gilmau, 577
Balne r. Hutton, 601,619



XIV



TABLE OF CASES.



Bainfoi-a c. Tuniloy, 488
l^andy v. Oartwiight, 399
Bauk of Australia c. Harding, 395
Bank of Hindostan i'. Smith, 119
Barber v. Fletclier, 368
Barclay v. Bailey, 174

— V. Goocli, 448
Barker r. St. Quentin, 395

— V. Windlo, 214
Barnes r. "Ward, 487
Barnicot v. llann, 49
Baron r. Husband, 449
Barry v. Glover, 517
Bartlett v. Boadle, 461

— V. Wells, 358
Barton v. Williams, 616

Barwick v. English Joint Stock Co., 438
Bateman r. Mid- Wales Rail. Co., 168

— r. Finder, 421
Bates V. Hewett, 367
Bateson v. Gosling, 193, 337
Battenbury v. Vyse, 123, 644
Baxeudale v. Great Eastern Eail. Co.,

256, 258
— r. London and South-

western Rail. Co., 260, 451
Baxter v. Earl of Portsmoirth, 362

— V. Taylor, 604
Beardman v. AVilson, 403
Beaumont v. Reeve, 357
Beckham v. Drake, 154, 167
Bedford v. McKowl, 568
Bedingfield v. Onslow, 603

Becher i'. Great Eastern Rail. Co., 263

Beechey v. Brown, 208

Beer v. Walker, 636

Beeston ■;;. Collyer, 649

Behn v. Buruess, 214

Behrens v. Gt. Northern Rail. Co., 257

Belfast and Ballymena Rail. Co. v.

Keys, 264
Bell V. Bell, 367

— v. Carstairs, 367

• — r. Ingestre, 169
Benecke v. Frost, 22
Bengal Bank v. McJjeod, 191
Benjamin v. Storr, 487
Bennet v. Parker, 599
Bensley v. Bignold, 355
Bentall r. Burn, 517
Beutley v. Craven, 109



Berkeley r. Elderkin, 394
Berridge r. Roberts, 166
l^.erry v. Da Costa, 207
Bessela v. Stern, 207
Betterbee v. Davis, 600
Betterby v. Reed, 619
Betts V. De Vitre, 506

— V. Neilson, 506

— V. Wilmott, 506
Bevan v. Waters, 619
Biccard v. Shepherd, 367
Bickerdike v. Bolmau, 174
Biddle v. Bond, 619

Bill V. Barment, 535
Binnington v. Wallis, 357
Bird V. Brown, 594

— V. Higginson, 399

— V. Jones, 325, 326
Bishop V. Pentland, 357
Blaekham v. Doren, 174
Blades v. Higgs, 126
Blair r. (^rmond, 422
Blake's Case, 105

Blake v. The Albion Life Assurance

Co., 27, 40
Blaney v. Hendricks, 170
Blatchford v. Cole, 404
Blenkarn r. Hodges' Distillery, 650
Blenkinsopp v. Clayton, 537
Blight V. Page, 215

Blower r. Great Western Rail. Co., 255
Bloxham v. Saunders, 616
Bloxsome v. Williams, 356
Boardman v. Sill, 621
Bodley v. Reynolds, 619
Bolch V. Smith, 489
Bolingbroke v. Kerr, 316
Bonomi v. Backhouse, 418
Boosey v. Wood, 286
Booth V. Briscoe, 4, 5, 6, 11

— V. Hutchinson, 158
Boulton V. Jones, 247
Bourne v. Fosbroke, 617
Bowen v. Owen, 600
Bower v. Hartley, 22
Bower bank v. Monteiro, 192
Bowry r. Bennet, 356
Bowyer r. Cook, 603
Boyd V. Dubois, 365

— r. Siffkin, 540
Boydell v. Drummond, 421



TABLE OF CASES.



XV



Bracey v. Carter, 576
Bradshaw v. Beard, 449

— V. Lancashire and York Rail.
Co., 316, 464

Brady v. Todd, 650

Braniah. v. Eoberts, 168

Brainley v. Cbestcrden, 403

Brandao v. Bariiett, 620

Brauker v. Melyneux, 617

Brass v. Maitland, 214

Brereton v. Chapman, 215

Bridden v. Gt. Northern Rail. Co., 254

Bridges v. Hawkesworth, 617

Brierley v. Kendall, 601

Briggs V. Jilerchant Traders' Insurance
Ass., 364

Brind r. Dale, 264

Bristow V. Eastman, 358

British Columhia, &c., Co. r. Kettle-
ship, 259

Broadwood v. Granara, 619

Brock V. Copeland, 330

Brooks V. Mason, 575

BrowTi V. Croft, 650

— V. Johnson, 205

— V. ilcKiunley, 451

— r. Tapscott, 501
Bruce v. Nicopulo, 365
Bryant v. Richardson, 358

V. Warden, 615
Buchanan v. Rucker, 396
Buck V. Hurst, 449
Buckland v. Pappillon, 154
Buckley v. Gross, 617
Buckmaster v. Russell, 420
Budding V. Murdock, 88
Bull V. Price, 247

Ijurdan v. Greenwood, 53, and Ackl.
Burdett v. Withers, 401
Burgess v. Clements, 360

— V. Gray, 489
Burgh V. Legge, 172
Burghart v. Hall, 358
Bum V. Phelps, 630
Burnard v. Haggis, 358
Burnet v. Bouch, 247
Burroughs v. Bayne, 618
Burton v. Hughes, 617
Bush V. Steinman, 489
Bushell V. Wheeler, 537

Busk V. Koyal Ex. Ass. Co., 365



Busst V. Gibbons, 426

Butcher v. London and South-Western

Rail. Co., 264
Butler v: Swiuerton, 400

— V. Wooleot, 620
Button V. Thomson, 650
Buxton V. Cornish, 644

— z?. Xorth-Eastern Rail. Co., 263

— V. Rust, 535
Byrd v. Nunn, 58, 65, 89
Byrne v. Boadle, 461

Cahill v. London & North- Western

Rail. Co., 264
Caine v. Horsfall, 247
Caldwell v. Pagham Harbour, &c., Co.,

89
Cambridge v. Anderton, 365
Campanari v. Woodbum, 247
Campbell v. Im Thurn, 159

— V. Wenlock, 630
Canham r. Barry, 332
Canningtou v. Nuttall, 507
Canot V. Hughes, 618
Capes V. Ball, 158

Carew v. Duckworth, 18S
Cargill 'i: Bower, 89
Carlon v. Kenealey, 182
Carpenter v. Parker, 631

— V. Smith, 506

Can- V. Lancasliire k Yorkshire Rail.

Co., 255
Carratt v. Marley, 326
Carter v. Boehm, 367

— V. Toussaint, 537
Gary v. Gerrish, 449
Cassidy v. Foman, 421
Castle V. Parker, 489
Castrique v. Imrie, 396
Caswell V. Coare, 637
Catling V. King, 68
Caton V. Carlow, 535
Catterall v. Kenyon, 618
Cavey v. Lidljetter, 488
Cazenove v. Britisli Equitable Assur.

Co., 385
Chamberlain v. Williamson, 207, 316
Chambers r. Davidson, 620

— r. Donaldson, 347

— v. Miller, 146, 450



XVI



TABLE OF CASES.



C'lianipion v. Sliort, 539
ChaiuUer v. Villett, 422
Chaplin v. lloyeis, 536
Cliapman v. Keaiie, 192

— V. Pole, 38S

— r. Kothwell, 464

— r. Speller, 635
Chartered Mercantile Bank of India,

&c. V. Dickson, 172
Chasemore v. Turner, 421 •
Chatterton v. Cave, 278
Chesterfield Co. v. Black, 89
Chesterman r. Lamb, 638
Child V. Morley, 588

— V, Stenning, 9, 11
Chilton V. Carrington, 297
Chinery v. Viall, 619
Chown V. Parrott, 578
Christie v. Griggs, 461
Christo})herson v. Bare, 125
Churton v. Douglas, 333
Clare v. Lambert, 450
Claridge r. Dalton, 174
Clark V. Callow, 66, 538

— r. ChaniTicrlain, 618

— ?;. Hooper, 420
Clay V. Thackeray, 607

— V. Yates, 355
Cleave v. Jones, 420
Clift V. Schwabe, 386
Clow V. Brogden, 401
Clowes V. Hilliard, 13
Cocking V. Ward, 107
Coddington r. Paleologo, 538, 539



Online LibraryJohn CunninghamA selection of precedents of pleading under the Judicature acts in the common law divisions. With notes explanatory of the different causes of action and grounds of defence; and an introductory treatise on the present rules and principles of pleading as illustrated by the various decisions down to t → online text (page 1 of 92)