SUPPLEMENT TO PRACTICE AND PLEADING, UNDER THE CODES. ORIGINAL AND AMENDED. BY HENRY WHITTAKER. EMBRACING THE RECENT REVISION OF THE RULES OF THE SUPREME COURT. [For distribution, gratis, to subscribers and purchasers of the first edition of that work I THE biennial revision of the General Rules of 1849, prescribed by sec. 470 of the Code, having now taken place; the author of "Practice and Pleadings under the Codes" has felt it but due to himself, and due also to the profession, as some slight acknowledgment for the support they have so liberally extended, to render that work, as far as practicable, a complete synopsis, not merely of the past, but of the present practice, as now settled by the Rules in question. With this view, and in order to place the holders of the first edition on an equal footing with the purchasers of any works hereafter issued, embracing the changes effected on the revision in question, the author has prepared, for gratuitous distribution to such holders, a series of paragraphs directed to that express object, and so printed and arranged as to be capable of insertion in the volume as already published. The author trusts that the issue of this supplement may be accepted by the public, as an evidence of his earnest wish to render the work in question as complete and as available as lies in his power. 30 Wall-street, August, 1852. N.B. The following paragraphs to be separately cut out, and pasted on the inner margin of the different pages of the volume as already published, according to the directions subjoined, but not so as to efface the original text. INTRODUCTION. A PERIOD approaching to four years has now elapsed since the original passage of the measure styled the Code of Procedure; but a Book of Practice under it. keeping pace with its various amendments and with the various phases of its judicial interpretation, seems yet to be wanting. The work of M. Monell, directed to this object, has become in a great measure obsolete, for want of a recent revision; whilst the annotated Code of 1851, though available for that particular purpose, amounts to little, if anything, more than a mere digest of reported cases, differing in form only from those previously published; the absence of practical directions and of the condensation of information upon any given point, rendering it comparatively inefficient for other purposes. To supply the void thus existing, is the attempt proposed in the compilation of the present work, in which the objects of a Commentary and of a Book of Practice are sought to be combined, in a practical spirit and with practical views throughout. All mere discussion has accordingly been studiously avoided from first to last, so far as was possible, consistent with a due investig on into the various difficulties which have from time to time been raised as to the interpretation of the measure. That sp. little of insoluble difficulty should have arisen, forms the best eulogium upon the Code itself, effecting, as it unquestionably has effected, a revolution in the previous system which for extent and boldness stands unparalleled in the annals of legal reform. The scope of the work may be thus briefly stated: A sketch of the different tribunals of Civil Jurisdiction, is first given. The general prerequisites to the assertion of remedies in those tribunals, is next considered. The progress of an ordinary suit in the higher courts is then taken up, and practical directions given for its conduct and management by both parties, from its first outset to its final result. This important subject having been fully considered in all its branches, the nature and characteristics of special proceedings are shortly adverted to, and the work concludes with a brief notice of the retrospective effect of the Code, and an appendix of Forms. In treating of these subjects, the enouncement of any proposition unsupported by positive authority, has been carefully avoided; and, where the decisions on any given point have been conflicting, the author has stated those on both sides as impartially as lay in his power, whilst drawing his own conclusion. He has, too, adopted the principle of confining himself to the citation of decisions pronounced under the actual operation of the Code, to the exclusion of cases decided before its passage, or by the English tribunals. Though concurrent on many points, and consistent on more, on others the old and new systems are at absolute and irreconcileable variance with each other, on many and those most important points, and à fortiori is this the fact with respect to English authorities. Their applicability is at the best illustrative; it cannot be held to be direct under any circumstances. The general tenor of the work pre-supposes likewise an acquaintance on the part of the student with the elementary and other works in relation to the practice under the old system. For some time to come, this will remain a matter, not of choice, but of necessity, though that necessity will lessen in degree with every recurring year. All details of proceedings governed exclusively by the old system will therefore be rigidly excluded, whilst indicating, the sources whence those details may be gathered; and the present work will be strictly and professedly confined to the new, as contradistinguished from the old practice. The authorities on which the different positions advanced throughout the volume are grounded, are as follows: Comstock's Reports, 4 volumes, cited as Comst. Howard's Practice Reports, vols. 3, 4, 5, and part of 6, cited as How. Barbour's Supreme Court Reports, vols. 2 to 8 inclusive, cited as Barb. S. C. R. Sandford's Superior Court Reports, 3 volumes, cited as Sandf. S. C. R. The Code Reporter, 3 volumes, cited as C. R. 66 66 66 cited as C. R., (N. S.) (New Series,) part of vol. 1, |