The New Instructor Clericalis, Stating the Authority, Jurisdiction, and Modern Practice of the Court of Common Pleas: With Directions for Commencing and Defending Actions, Entering Up Judgments, Suing Out Executions and Proceeding in Error : to which are Added, the Rules of the Court, Modern Precedents, and Several Other Matters Necessary to be Known by Attornies and Their Clerks, in Town and Country, the Whole Illustrated by Useful Notes and Observations from the Best Authorities : with the Addition of Several New Titles, and a Copious Index

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Author, 1790 - Civil procedure - 717 pages

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Page 74 - In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power.
Page 30 - ... if, in any of the said actions or suits, judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill...
Page 364 - Warwick aforesaid, by whom the truth of the matter may be the better...
Page 9 - A custom to pay two-pence an acre in lieu of tithes, is good ; but to pay sometimes two-pence, and sometimes three-pence, as the occupier of the land pleases, is bad for its uncertainty. Yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good ; though the value is a thing uncertain : for the value may at any time be ascertained ; and the maxim of law is, id certum est, quod certum reddi potest.
Page 30 - And be it further enacted, That all Actions of Trespass, Quare clausum fregit, all Actions of Trespass, Detinue, Action sur Trover, and Replevin for taking away of Goods and Cattle, all Actions of Account, and upon the Case, other than such Accounts as concern the Trade of Merchandize between Merchant and Merchant, their Factors or Servants...
Page 16 - Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents : 1. An agreement that by its terms is not to be performed within a year from the making thereof ; 2.
Page 74 - I, c. 10, which abolished the court of star chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council ; who, as then was evident from recent instances, might soon be inclined to pronounce that for law which was most agreeable to the prince or his officers.
Page 58 - And, after issue or demurrer joined, as well as in some of the previous stages of proceeding, a day is continually given and entered upon the record, for the parties to appear on from time to time, as the exigence of the case may require. The giving of this day is called the continuance, because thereby the proceedings are continued without interruption from one adjournment to another.
Page 8 - To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mercatoria : which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it (æ) ; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions : for it is a maxim of law, that " cuilibet in sua arte credendum est (13).
Page 20 - The least touching of another's person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it : every man's person being sacred, and no other having a right to meddle with it} in any the slightest manner.

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