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To which are added,
COMMERCIAL AND GENERAL LAW.
BY FRANCIS LUDLOW HOLT,
PRINTED FOR J. BUTTERWORTH AND SON, 43, FLEET-STREET;
AND J. COOKE, ORMOND-QUAY, DUBLIN.
IN the following Reports of decisions at Nisi Prius it will be seen that the Writer has endeavoured, (he hopes not fruitlessly,) to render them more generally useful to the profession. In reporting the decisions in the several Cases, he has attempted to explain the principles upon which they are founded; and, according to the best of his judgment and industry, to connect them with the system of which they are part.
It is not usual, and scarcely possible, for the Judges at Nisi Prius, in the vast multitude of Cases brought before them, to do more than touch upon the principles of the Cases in point; and, still less, to unfold the system of law, of which such Cases are but individuals.- In the form of Notes, the Writer has endeavoured to supply this connection and exposition. The very limits of a Note necessarily require the condensation of the subject matter into points; and
though this form of writing may not be the most elegant, and necessarily presumes a good degree of elementary knowledge in the Reader, it is scarcely requisite to inform the Student in the Law that, when appended to decided cases, it is most useful for memory, reference, and study.
In this attempt the Writer feels that he has to contend with the salutary prejudice always existing against innovation in any thing deemed established. But as utility is certainly a very sufficient reason for departing from an usage, it is the interest of the profession not always to discourage it; and the attempt must be made in order to give a chance for improvement.
· In stating the Cases, the Writer has deviated somewhat from that abstract and axiomatic way, which, though justly entitled to the praise of forcible condensation, and elaborate precision, with respect to the subject matter, has too often fallen into obscurity, by the omission of material points. To avoid this defect, the Writer has stated, with such fulness as to render misconception impossible, both the narrative of the case, the main argument of Counsel, and the observations of the Judge in pronouncing his decision. He is under little apprehension but that this part of the Reports will meet with the approbation of the Profession.
In the present state both of our Law and Commerce, the Writer deems it unnecessary to say any thing of the importance of the decisions of Nisi Prius to the profession and the country. They are, in fact, the law of trade and commerce as seen in the practice of the Courts. The whole commercial dealings of the country are herein brought before the Courts, and discussed in the first instance. The Law is explained and administered by Judges who, without departing from its necessary certainty, have extended principles so as to embrace the new forms of commerce. The law learning of a former age ran in the channel of real property. The changing circumstances of the times have introduced another equally powerful source, and extensive object, of national wealth and dealing. The law has necessarily followed this change.
It may indeed be a question for the impartiality of future times, whether the learning, precision,' and accuracy—the compass given to principle without violating fixed rules, and the reconciliation of the substantial justice of the Courts of Equity with the strictness of the maxims of the common law, (introduced within these last fifty years) be not entitled even to greater praise, than the subtle logic of earlier times as applied to cases of real property.
Paper Buildings, Temple,
March 3, 1818.