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OF THE New YORK BAR, Dean OF THE BUFFALO LAW SCHOOL
"ABBOTT'S FORMS OF PLEADING", ETC.
Entered according to Act of Congress, in the year 1887, by
Entered according to Act of Congress, in the year 1907, by
LUCY ABBOTT MARTIN,
M. i 1320
J. B. LYON COMPANY
PRINTERS AND BINDERS
ALBANY, N. Y
PREFACE TO SECOND EDITION.
No apology is necessary upon the appearance of a second edition of a work on Practice, when a period of twenty years intervenes since the prior edition. It is inevitable that during such a period much will have been done, by means of statute and decision, to extend and modify the earlier practice.
The last two decades have witnessed no upheaval in our procedure — and the important function of the author of the present edition has been to seek through the intervening years for the trend of statute and decision in effecting changes, or providing new remedies, or adding new requirements. The creation of the Appellate Division and the Appellate Term, and the restriction upon the jurisdiction of the Court of Appeals, have resulted in much that is constructive, as well as destructive, on the subject of APPEALS, as treated in the first edition. The abolishing of the superior city courts has, however, left scarcely a vestige of change in procedure.
Some absolutely new remedies have been created — notably, Physical Examination in an Action for Personal Injuries, Special Execution upon Judgment for Necessaries, Certification of Questions for Review on Appeal — while many subjects have been modified in important particulars — notably, Form of Judge's Decision and Referee's Report, Divorce, Attachment, Deposition under Commission from Foreign State, etc.
It has been the effort of the present author to continue unchanged the characteristic arrangement of the first edition, with which the profession is familiar, and to retain so much of the original text as continues to correctly present the existing practice, with references to the latest authorities. Every portion of the work has been subjected to careful revision, and several hundred pages of text and Forms have been added. It is hoped that the present edition may be worthy of a continuance of the same favor which has been accorded to the original work.
It is believed that a word of caution in the use of the volumes may be advantageously added: the Forms are so numerous that no index of reasonable proportions can be prepared which will enable each particular Form to be instantly accessible; a few moments spent in examining the Forms presented in a single group (or in examining the lists of Forms which immediately precede each section) may be essential to enable the practitioner to find the desired precedent.
CARLOS C. ALDEN. BUFFALO, February, 1907.
PREFACE TO FIRST EDITION.
If my experience of the needs of a practitioner is like that of others, what is needed in a book of practice is not so much a survey of general principles, nor a compend of authorities, as a practical statement of the existing powers and usages of the courts in each of the various stages of litigation.
My object in this work has therefore been to exhibit the powers of the court (common law, equitable, and statutory), as they are seen, so to speak, in motion, in the actual litigation of to-day.
This purpose, it has seemed to me, may be best accomplished by a Collection of Forms, with practical explanations and suggestions. The old formal technicalities of common law and equity practice having been abolished, there is little left in a well drawn Form but the very substance and shape of the remedy; and, therefore, I believe that the best method of explaining the practice, with clearness and precision, is to dissect out and hold up to view, as I here have done, the actual proceeding itself.
The Forms here given, almost without exception, have been drawn from precedents which have stood the test of actual practice. As the period during which these precedents have been accumulated is a long one, they have been freely modified for this publication in view of the present statutes, rules, and usages; have been systematically revised for conciseness and accuracy of expression; and, wherever the combination of several Forms in one, by the use of alternative clauses, seemed to promise greater usefulness, convenience, or suggestiveness to the practitioner, space has been gained by thus consolidating them.
The limits prescribed for this work have not permitted the treatment of Pleading any further than practice in respect to it is expressly regulated by the Codes of Procedure. The same principles of treatment will lead to a somewhat different method in dealing with the principles of Pleading. The practitioner must usually determine the frame and policy of his pleading before commencing his action or defense; and the principles which