PREFACE. The test of practical utility is the only one which should be applied to a work in any manner designed for the special use of the legal profession. The object of this volume is to enable the professional reader more easily, quickly and certainly to ascertain what is the law in regard to practice in Civil Actions and Special Proceedings. For this purpose, the amendments which have been made to the Code of Civil Procedure have been carefully collated and, where it has been possible to do so without material change, incorporated in the text, with proper references to the amending acts. Where this was not practicable, they have been inserted as additional sections, in the most fitting relations. The decisions of the Supreme Court upon the various sections and modifying and amending acts have also been carefully digested and arranged for immediate reference. It was not intended to have the character of a treatise, though a few notes have been introduced. The decisions upon our Code are not yet sufficiently numerous to allow the details of the system to be filled out by analysis of the cases, and the writer was not vain enough to suppose that his own opinions could supply the lack of data in our Reports. The decisions of other States have been referred to in but few instances. The early announced intention of our Supreme Court to regard the decisions of no other State as authority upon matters of practice, has been very closely adhered to, and the result is, that the North Carolina practitioner is almost without a guide in such matters, unless the very point in question can be found in the volumes of our Reports. It is in a clear and distinct arrangement of the law, specific reference to the amending statutes and the means it affords for an easy and exhaustive consideration of the authorities bearing upon each section which has been adjudicated, that the chief value of the work will be found to lie. Great care has been taken to secure fullness and accuracy in citation. A few errors have been discovered in citation, and one or two unimportant ones in the phraseology of amending laws. There are some typographical errors, which will not be likely to mislead the reader, though they are somewhat annoying to the writer, as our own short-comings usually are. The list of cases is believed to be entirely accurate, and any error of citation which may be found in the body of the work, may be easily remedied by reference thereto. As the decisions affecting the Code are all contained in the numbered volumes of the Reports, the abbbreviations "N. C. R." have been omitted and only the number of the volume given both in the citations and the list. Special Proceedings-except Divorce, which I think has quite lost that specific character and become a civil action, pure and simple-are included as being so intimately connected with the practice controlled by the Code and its amendatory legislation, that any work which sought to present the one, would be fatally defective unless accompanied by the other. To this has been added also, the rules of the Supreme Court since 1868, many of which are of very great importance in the practice, and worthy of far more careful consideration than they have generally received from the profession. A collection of decisions affecting the various sections of the Constitution of 1868, with a brief statement of the subject of each section is also appended. This collection is not claimed to be absolutely complete, though it is thought very few cases bearing upon constitutional questions will be found which are not there cited. It had been found of great convenience in my own practice, and was published at the earnest request of friends who had observed its advantages. The index is to the text alone, and no pains have been spared to make it full and complete. Every section has been thoroughly cross-indexed, and, as far as possible, re-reference avoided. Convenience, readiness and certainty in the use of the volume as a means of ascertaining what is the law, have been kept constantly in view, and all other considerations have been steadily subordinated to them. I desire to express my thanks to the publisher for the care which he has taken to give the volume a becoming appearance, and the patience with which he has submitted to the numerous changes, which a desire for exhaustive accuracy prompted. That the Code system, as it is termed, is to be the procedure of the future, there is no doubt. Both reason and experience point to that result. That there are evils attending the abandonment of the old system and the adoption of the new, no one can doubt. That the circumstances under which it was adopted in this State have placed it under the interdict of prejudice from the outset, every one will admit, and it must also, I think, be admitted that even under this great disadvantage, it has secured a permanent foothold not to be disturbed either by legislation or construction. Its clear, distinct and logical system of pleading, the abolition of feigned issues and the abolition of the distinctions between actions at law and suits in equity, appeal too strongly to common reason not to receive the hearty endorsement of a people very much inclined to think for themselves, in matters affecting their personal interest. It is believed that the Code, also, is fast overcoming the prejudice with which it was at first received by the profession, as its merits and advantages are more fully apprehended and better appreciated by them. My thanks are due for the kindly co-operation and encouragement of many of the members of the bar in the preparation of this work. It is my hope that they may not be disappointed in the prognostications they have made in regard to its usefulness, but that it may prove to be of value to the profession of the State, and lead to a closer study and better appreciation of that system which now prevails in a majority of the States and Territories of this Union, and which has recently dispossessed the Common Law procedure in the English Courts, where it was cradled. Raleigh, N. C., Feb. 25, 1878. ALBION W. TOURGEE. IX. Of Provisional Remedies in Civil Actions,. 132 Den, Keener v., 73-132,. De Rossett, Von Glahn v., 76-292, Devereux, Hyman v., 63-624,. 334 62, 94, 103 Devereux, Hyman v., 65-588,. Edwards v. Jarvis, 74-315,. Elliott, Felton v., 66-195,.. Eubanks v. Mitchell, 67-34,. Evans, Jackson v., 73-128,. Fairley, Wall v., 73-464,..... Faison v. McIlwaine, 72—312,. Falkner v. Hunt, 68-475,.. Falls v. Gamble, 66-455,. Farmer v. Willard, 75-401, Farmer's Bank, Glenn v., 72-626,.. 94, 317 159, 245 283 153 65 268 123, 257 250 124 95 281 154 253 194 125, 252 82, 89 323 93, 95, 104, 121, 179, 181, 182 98, 99, 242 242 240 .202, 203, 201 116, 199 330 ..105, 297 95 241 ..95, 114 252 .12, 91, 104, 108, 110, 117 .268, 271, 315 100 16 240 95 3, 320, 329 242 16 ...57, 95 194 .100, 104, 116, 182, 189, 288 201 282 95 16, 51 157, 161, 287 252, 253, 266 61 258 95 100, 104 3, 320, 329 183, 189, 199 Farmer's & Merchant's Bank v. City of Charlotte, 75-45,.. Felton v. Elliott, 66-195, Finger, Keener v., 70-35,.. |