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The aim of this treatise is to reduce or digest the law of parties into a series of rules, each of which is illustrated and explained by appropriate cases and examples, and confirmed, wherever this is possible, by quotations from judgments, or from the pages of writers of acknowledged reputation. In the explanatory portions of the text will be found, it is hoped, all the most important decisions or enactments bearing on each point under consideration; so that any person who wishes not only for a rule but also for an account of the cases or statutes on which it rests, may obtain the information which he requires; and care has been taken to employ, even at the cost of some circumlocution or occasional awkwardness of expression, the ipsissima verba either of Judges or of eminent writers, so that the statements made may carry a weight which cannot attach to a summary of the law given in the words of an unknown author:
The labours of Mr. Chitty, Mr. Broom, and Mr. Justice Lush, have, it is scarcely necessary to say, greatly facilitated the production of this work, but have, it is hoped, not necessarily rendered it either useless or superfluous; inasmuch as all of these distinguished authors aimed rather at stating the law of parties than at reducing it to a systematic form ; whilst both Mr. Chitty and Mr. Justice Lush were compelled from the scheme of their works to treat this branch of the law 'as merely subsidiary to the law of “practice," and were therefore precluded from its full and systematic treatment.
The practical advantage of the arrangement pursued in this treatise is, that it enables the reader to see at a glance what the rule of law is; whilst it frees him from the necessity of collecting the principle for which he is in search from the decisions or statutes in which it is embodied; and that it further puts it in his power to refer with great readiness to the part of the subject on which he may desire to be informed. An advantage of a more speculative nature is that this arrangement exhibits the law of parties as a whole, and by showing the relations between its different parts, makes, it is hoped, apparent the fact that this somewhat complicated and intricate branch of the law, depends upon and is the expression of a few simple principles.
Some persons may think, and not unreasonably, that the present time is inopportune for a systematic consideration of the law of parties, inasmuch as the fusion of common law and of equity, which cannot be much longer delayed, will assimilate the maxims of common law to those which govern proceedings in courts of
See Chapter III., pp. 28–77.
chancery, and will therefore tend to the modification or repeal of many among the more technical precepts embodied in this treatise; yet this period of approaching change affords in reality, it is submitted, an appropriate time for an examination into the rules which regulate an action at law. A fusion of law and equity, while it must end by modifying two different systems of procedure, will bring into great prominence the rules which govern the choice of plaintiffs and of defendants. A conjecture may indeed be hazarded, that a vast number of the rules of common law will, as being founded on the dictates of justice and of common sense, survive under slightly different shapes, in the law which will be administered by the proposed High Court. But whether this anticipation prove correct or not, it is certain that whenever a court is founded which shall be at once a court of common law and of equity, a knowledge of the rules which now regulate the choice of parties in an action, and of the principles on which they depend, will for the purpose of dealing with the many questions which must arise in the course of the revolution in our legal system, become of the highest importance, no less to the practical than to the speculative lawyer. If versed only in the proceedings at common law he will need clearly to seize the principles on which such proceedings rest, in order that he may understand how far and in what direction they are modified by the rules of courts of equity. If, on the other hand, he is practically acquainted only with proceedings in Chancery, he will require to grasp the bearing and nature of technical rules of which he has hitherto had no experience. If the present treatise shall in any measure facilitate the comprehension of the principles on which the law of parties rests, it will have attained its object, and, it is hoped, have justified its publication at the present time.