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guide him in so doing are better understood when considered in connection with causes of action and defenses, than as connected with practice. It is, therefore, my purpose to treat the subject of Pleading separately.
In respect to arrangement, the reader will at once see that practical order has been preferred to philosophic classification. In this work, as in TRIAL EVIDENCE and the TRIAL BRIEF, I assume that the reader is familiar with the general principles of practice, and is concerned with their application. Hence, after explaining those instruments common to all stages of an action, I have delineated the successive steps in a suit, from the things which may be done before commencing it, to the final satisfaction of judgment, in the order in which they occur, so that the practitioner may have in view each remedy at the earliest point at which it can be invoked. Doubtless it is far easier, and theoretically more satisfactory, to collect the authorities on each class of applications to the court, and treat the whole of each class as a subject by itself; but in fact, the rules which govem us in practice vary, in no small degree, with the stage of the action in which the application is made. The great source of uncertainty as to what is the law, is too broad generalization. It seems wise, in such a work as this, to aim at accurate delineation of existing practice, and to confine the discussion of scientific classification and theoretic consistency to the place they must always occupy before the courts, as materials for argument. It is only by pursuing the existing rules into all their details, notwithstanding occasional lack of consistency or harmony, that we can be enabled intelligently and wisely to criticise and remedy those defects. *
* To illustrate this, those who have treated Examination before Trial as a subject by itself, and Discove ry and Inspection as another each under separate and purely theoretic analyses - have commonly regarded them as incongruous if not incompatible; and upon this theory the courts have often refused to allow both together. But when, without attempting to generalize a separate set of rules for each, we consider each in its actual details in litigated practice, we find that Examination of a party to enable one to plead, and Discovery to enable one to plead, have more in common with each other than either has respectively with Examination or Discovery, after issue to enable one to go to trial. The subjects of Amendment, Changes of Par. ties, and many others, are, in like manner, only to be understood by looking at them in their actual connection with the action, and limiting our deduction of the rules concerning them, with constant view to the particular object of the proceeding in question.
To each stage of action thus successively reviewed, concise statements of the practice are prefixed, supported by a selection of cases from the reports. Obsolete and unsound cases are generally unnoticed; but where it has seemed that the question is debatable, or a contrary authority would be a useful warning against assuming too much, reference is made to adverse opinion.
The reader will see from the very wide selection of authorities that the work is not a local one. I have sought to represent truly the spirit and substance of what is known as the Code Practice throughout the country; and have constantly drawn from common law and equity authorities and precedents, wherever the substance of procedure is the same. The New Procedure is a part of the spirit of the age; and those States which have not formally adopted any systematic statement of its rules, such as is known as “the Code,” are steadily advancing in the introduction of its essential principles.
But although this work is therefore a general one, I believe that no accuracy can be had in law without being accurate for some particular State. A work which is complete and accurate for one State is more likely to be useful in others. One which is not measurably accurate in detail for any particular jurisdiction cannot be accurate in general, nor a safe guide any where. I have, therefore, upon matters of technical detail, endeavored to state the practice under the law of New York with accuracy and precision; while I have consulted as far as possible, also, the law of procedure in other States, and have given authorities from them all.
I desire to acknowledge my indebtedness to SUMNER B. STILES, Esq., for able assistance in the execution of this work.
AUSTIN ABBOTT. NEW YORK, May, 1887.
NOTE TO THE STUDENT AND BEGINNER IN PRACTICE.
As these Volumes will probably fall into the hands of many who are on the threshold of practice, it may be well to suggest the advantage they will find in reading first the text of Chapter IV on Plaintiff's Proceedings Touching Jurisdiction; then the Article on Petitions, with especial reference to the contrast
between original petitions and actions. After this, the explanations in Chapter I, as to Common Forms, will be better understood. These are arranged in the order most convenient for ready reference in practice; but the beginner who reads them may find it preferable to take, first, Motions, then Affidavits; then Notices, Indorsements, Service, and Admissions; then Orders, Filing, and Amendment; and afterward the other topics of the Chapter in any order.
CONTENTS OF VOLUMES I AND II.
PROCEEDINGS BEFORE ACTION.
I. AGREEMENT WITH CLIENT
VI. EXAMINATION OF ANTICI-
REGARDING COMPENSATION, 498
PATED PARTY OR WITNESS
II. ASSIGNMENT OF CAUSE OF
504 VII. LEAVE TO SUE.
III. AUTHORITY OF ATTORNEY.. 511 VIII. GUARDIAN AD LITEM FOR
IV. DESIGNATION OF PERSON TO
BE SERVED WITH SUMMONS. 514
V. DEMANDS, NOTICES AND SE-
CURITIES BEFORE SUIT.... 516
JUDGMENT WITHOUT PROCESS OR PLEADING.
I. CONFESSION OF JUDGMENT.. 598
II. SUBMISSION ON
STATEMENT OF FACTS.... 609
III. REFERENCE OF CLAIM