AUSTIN ABBOTT, LL.D., Dean of the New York University Law School; Author of "Trial Evidence," SECOND EDITION. Enlarged and Improved, with collation of the most recent cases. A Pleading is at once a notice to the adver- NEW YORK: THE DIOSSY LAW BOOK COMPANY, Publishers. 1895. PREFACE. In this volume I have selected the best authorities on the New Procedure in Pleading as it is adopted and practically applied in the State of New York. Such parts of a case as had no relation to the question of pleading have been omitted; the omission and its reason being always indicated. An examination of the original records of each case as presented in court has enabled me to prefix to the opinion the actual pleading on which the question arose, and any details of procedure, necessary to show how the question came before the court. The head notes are prepared especially for this work, and the cases are arranged in a logical order calculated to develop the reader's view of the rules of pleading as a systematic body of consistent principles growing out of the litigation over concrete facts, and I have appended to the cases on some of the more important and frequently occurring classes, notes to aid the application of the same principles to varying states of fact. The classification shows how the application of such principles distributes litigated causes into distinguishable classes, indicated over the top of the pages; and after the general principles have been elucidated in the cases forming the first half of the volume, the technical rules are given which have grown up under judicial experience in the convenient and orderly presentation of facts to the court by means of pleading. Prefixed to the volume are two tables; one a topical table of all the cases presented in the volume; and one of the requisites or contents of each pleading used under the Code, and the method of taking objections to defects. The following statement of the object of the rules of pleading (from the "Brief on the Pleadings") I repeat here to aid my readers in reviewing the subject in the completed volume. A pleading is at once a notice to the adversary of what he must prepare to meet; a rule of order to limit contention at the trial; and, after judgment, a record of justice done to show what it is that the parties are precluded from subsequently contesting. The rules applicable on demurrer have grown up chiefly in view of the first of these requirements, and turn on the ques tions: Do the pleadings present a fit question for litigation? and, Do the incidents of parties, jurisdiction, etc., make this a fit occasion? The rules applicable at the opening of a trial of issues of fact, before going into evidence, assume that the present is a fit occasion, but leave open the inquiries: Whether the pleadings present a question to be tried; and of a nature to be within the jurisdiction of this court? and, Are all indispensable parties before the court? The same stage of proceedings may raise the further questions: What mode of trial do the contents of these pleadings call for? and, In what order shall the parties and issues be heard? The opening by counsel, and the resulting reception of evidence, introduce such modification of this aspect of the case as is required by the practical construction which the parties, by their contention in the presence of the court, put upon the language in which they have framed the issue. The court still holds them to questions within the general of the pleadings, but disregards technical objections which the objector by his own course has already disregarded. scope The course of the trial, proceeding on this relaxation of the original rules, frequently obscures the lines which strict adherence to the pleadings might have preserved; and when the time for submission of the cause arrives, the question whether each party gave his adversary fair notice of the question which they have actually tried has gone by, for each has taken his part in trying it; and the time for applying the rules of order as to the method of trial has also gone by; while the question what sort of judgment can the court properly render, and perpetuate on its record, and enforce by its process, on the foot of these pleadings, comes into prominence. These distinctions must be borne in mind by whoever would master the modern principles and rules of pleading. My acknowledgments are due to the Williamson Book Com |