Pleading and practice in actions at common law

1254 Pages·2011·54.48 MB·English

UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY

In Acftions at
COMMON LAW
BY
MARTIN BURKS
P.
For Sale by
W. C. Stuart, {Bookseller
Lexington, Va.
T
I1I
COPYRIGHT, 1905
BY
MARTIN P. BURKS
COPYRIGHT, 1912
BY
MARTIN P. BURKS
The Michie Company, Printers,
ChariottesviUe, Va.
19I3
Preface
The first four hundred and twenty four pages of this book were
printed in the Fall of 1911, hence no reference could be made
A
therein to the Acts of Assembly of 1912. separate table of
these Acts, so far as they affect the text, is given on p. xxxi. The
residue of the book, however, contains the changes made by said
Acts. No attempt has been made to cite all of the Virginia cases,
except in a few of the chapters, but it is believed that the cita-
tions given are sufficient to put the intelligent reader on the track
of the authorities. Frequent reference has been made to the En-
cyclopaedias and to monographic notes containing collections of
cases .where it was deemed desirable to give a fuller citation of
authorities than could be given in the notes to the text. Part II
of the book consists of Stephen's Rules of Pleading, taken from
the eighth American edition. Sections 434 and 435 and pages
1012-1019 are taken from the notes of this edition, which were
the author's text in an earlier edition. As far as possible I have
eliminated matter that was antiquated or not adapted to modern
use, and wherever modern illustrations of the rules could be
found I have either substituted them for the illustrations given
by Stephen, or have given them as additional illustrations. The
omissions from the text are indicated by stars, and the new mat-
ter by brackets.
I beg to acknowledge my indebtedness to Mr. Robert W.
Withers of the law faculty of Washington and Lee University
for the preparation of the chapters on the contract actions and
the index, and to Mr. N. C. Manson, Jr., of the Lynchburg, Va.
bar for the preparation of the chapter on Mechanics' Liens.
These chapters have been simply edited by me.
M. P. B.
Lexington, Va.,
January,

Table of Contents
CHAPTER
I.
REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT.
1. Self-defence Recaption Abatement of nuisance.
2. Distress.
3. Distress for taxes and officers' fee bills.
4. Distress for rent.
5. Interest on rent. ,
6. Limitation of time to distrain.
7. By whom distress warrant levied.
8. Irregularity or illegality in making distress.
9. Disposition of property levied on.
10. Delivery or forthcoming bond and proceedings thereon.
11. What property may be distrained.
12. Redress for illegal distress At common law.
13. A year's rent under the Virginia statute.
14. Motion on delivery bond Proof.
15. Effect of general covenants to repair.
16. Abatement of rent.
CHAPTER
II.
ACCORD AND SATISFACTION.
17. Introductory.
18. Definition.
19. Subject matter.
20. Accord without satisfaction.
21. Persons who may make satisfaction.
22. Consideration of accord.
Part payment of a liquidated money demand.
New or additional consideration.
Unliquidated or disputed claims.
Acceptance of property.
Acceptance of a promise.
23. Pleadings Accord and satisfaction.
VI TABLE OF CONTENTS
CHAPTER
III.
ARBITRATION AND AWARD.
24. Introduction.
25. Who may submit.
26. What may be submitted.
27. Mode of submission.
28. Who may be arbitrator.
29. The umpire.
30. Revocation of submission.
31. Proceedings before arbitrators.
32. The award.
33. Form of award.
34. Effect of award.
35. Mode of enforcing performance of award.
36. Causes for setting aside award.
37. Relief against erroneous award.
38. Awards, how pleaded.
39. Costs.
CHAPTER
IV.
REMITTER AND RETAINER.
40. Remitter.
41. Retainer.
Order of payment of debts.
Order of liability of estates for debts.
CHAPTER
V.
COURTS.
42. Supervisors.
43. Clerks.
44. Justices of the peace.
1. Civil powers of justices.
Small claims.
2. Proceedings before a justice on small claims.
3. Civil bail.
Attachment.
4. Unlawful detainer.
5. Garnishment.
45. Circuit and corporation courts.
Corporation courts.
46. Civil jurisdiction of court of appeals.
(1) In matters pecuniary.
(2) In matters not pecuniary.