PREFACE TO THE SECOND EDITION. TO THE PROFESSION: When the first edition of this work appeared, there were only twenty-six volumes of N. C. Reports which contained adjudications upon the Code of Civil Procedure. Since then, twenty-one additional volumes of our Reports have been issued. This edition has, therefore, been entirely re-written. The number of adjudications cited are about double in number those in the first edition. All the changes made by the last four Legislatures in the C. C. P. have also been incorporated in the text. The new and simpler Code of Procedure, adopted in our State in 1868, is based upon the abolition of the cumbersome, not to say absurd, forms of action formerly in use and of the distinction between law and equity and the substitution of one form of action for the trial of all civil causes. Long discussed among thinking men, the reform first took practical shape by the adoption of the New York Code of Civil Procedure, in 1848. The reformed procedure is now in force in twenty-six States of this Union, in England, Ireland, Wales, India, Australia, in several provinces of Canada and in many other English colonies. It is no longer an experiment; it has come to stay. The present work is simply a working-tool to save labor to the profession. It is intended for that purpose, and to be like the C. C. P. itself-a practical work. One word as to the use of the volume. Many decisions are of such a character that they could be appropriately cited under many different sections. To avoid duplicating the same citation, as far as possible, each case has been put under the section which seemed most appropriate, and then, by a liberal system of cross-references, the repetition of the case has been saved. If a case is not found under the head where it is sought, it should be looked for in the Index of Cases at the end of the volume. It can then be found under the section selected for it, and, by following up the cross-references, all the cases on that and cognate matters will be found. WALTER CLARK. December 1, 1891. PREFACE TO THE FIRST EDITION. TO THE PROFESSION: This work lays claim to no originality. It had its origin in the necessities of the writer for a ready reference to the adjudications of our court of last resort on questions of practice.. These adjudications were necessarily numerous, as they are constructions placed by the court upon an entirely new system of procedure, laying down the successive steps taken and the lines upon which future progress is to be made. They are scattered through twenty-six volumes of Reports, and not accessible without much research. If it has This volume, therefore, is intended as a working-toola LABOR-SAVER to a hard-working profession. the effect of lightening their labors, the compiler will feel repaid. He will also feel that he has, in his humble way, paid that debt which Lord Bacon says that every lawyer owes his profession. That there are typographical errors in the work was hardly to be entirely avoided, considering the large number of names and figures used. They have been numerous enough to vex the writer, but it is trusted that the ready intelligence of the practicing lawyer will in no instance be misled by them. That there are omissions and errors of a more serious nature, it is probable that the use of the work may discover. Labor has not been stinted to make the work complete and accurate, and where there are shortcomings, not "of form, but substance," reliance is placed upon the forbearance and charity of the Profession. WALTER CLARK. Raleigh, N. C., Feb. 20, 1884. FROM IST N. C. TO 62D N. C.-HOW NUMBERED AND CITED. Order of the Supreme Court Adopted at SPRING TERM, 1891, 108 N. C., 805. Inasmuch as several of the volumes of Reports prior to the 63d have been reprinted by the State, with the number of the Report instead of the number of the Reporter, and still other volumes will be reprinted and numbered in like manner, it is permissible for counsel hereafter to cite the volumes prior to the 63d Reports, respectively, as follows: NOTE.-In 1869 the Supreme Court, following the example set by other States, ordered that our Reports should thereafter be known simply as "North Carolina Reports," the then current number to be called the 63 N. C. This was based upon an estimate of there being sixty-two antecedent volumes. As all future volumes of N. C. Reports will doubtless be known simply by their number in the series, it will be anomalous and confusing that the first sixty-two volumes should not be designated as N. .C. Reports at all, and should continue to be quoted under the names of fifteen different Reporters. To cure this, the court, at Spring Term, 1891 (108 N. C., 805), adopted the foregoing order. It is to be regretted that the court did not do this in 1869, as by this time the practice of quoting the earlier Reports by number would have been uniform, not only here, but by courts and text-writers elsewhere. A similar change in the quotation of the earlier Reports has been made by our sister States. In a short while, and after a little practice, the change will become familiar, and the convenience of all our Reports being known by the name of the State, and cited by their number as such, will be appreciated. |