The Practice at Law

general; its origin and history; of the practice at law prior to 1846; of the practice in equity prior to 1846; of the old practice, and how much of it has been retained; of the present practice, and upon what it is founded.

Part 4, Commencement of Actions. Treating of the summons, its requisites and forms; of its service and return; of the proof of service; of appearance; and of all the proceedings taken in the commencement of an action down to service of the pleadings.

Part 5, Provisional Remedies. Treating of 1, Arrest and Bail ; 2, Replevin, or Claim and Delivery; 3, Injunction; 4, Attachment; 5, Receivers; 6, Ne Exeat. These subjects are all very fully discussed, and include all the forms required in actual practice.

Part 6, Pleadings. This is not a work in which the subject of pleadings is expected to be treated of with great fullness of detail, and yet the principal general rules of pleadings have been given, as well as those relating to complaints, answers, replies or demurrers. The prac tice in relation to pleading has been minutely explained in this part of the work.

Part 7, Proceedings between pleading and trial. These proceedings are very numerous and important, and they have been very fully and carefully detailed.

Part 8, Trials, and new trials. The entire subject of trials has been discussed in a most exhaustive manner, treating of trials by jury, by the courts and by referees. The subjects of interlocutory decrees, judgments and orders form a part of this branch of the work.

The mode of obtaining new trials, on motion or by appeal, including the entire practice which is to be followed, has been very fully presented.

The practice in relation to the trial of causes has been illustrated and fortified by very numerous and important cases, which meet nearly every question that arises upon the trial of a cause.

The preparation for trial, including the mode of procuring the attendance of witnesses, or of securing their evidence on commission, is very fully set forth, as well as the mode of procuring documentary ⚫evidence.

Part 9, Costs. The cases upon this subject are numerous, and they

have been carefully collected and arranged for examination. In no other work have the New York decisions been so fully and accurately given.

Part 10, Judgment. Treating of the nature of judgments and decrees in general; of judgments in legal actions; in equitable suits; in litigated actions; by default; by confession; on offer; on interlocutory orders or decrees; of the mode of entering; of amending or vacating them; of the lien of; satisfaction or discharge, and of their revival. The extent of this subject forbids more than a mere mention of some of the divisions of it. But it is intended that the practitioner and the student shall find here any information desired upon this branch of the practice.

Part 11, Enforcement of judgments, decrees or orders. As this is an extensive field, it will suffice to say that it treats of executions against the person, or personal or real property; of supplementary proceedings; of process of contempt; of the writ of assistance; of injunction; of sequestration; of receivers; of precepts for costs, etc.,

etc.

Part 12, Appeals. Treating of appeals in general; when an appeal lies, and when not; in favor of whom; of appeals to the court of appeals; to the general term of the Supreme Court; to the general term of other courts; of appeals from inferior courts to the Supreme Court, or other appropriate appellate court; and from inferior courts to the county courts, etc.

Part 13, Motions and orders. The need of full and accurate information upon this subject is familiar to every practitioner and student; and it is here supplied.

Part 14, Miscellaneous proceedings. In this part will be included those matters which cannot very well be limited to any one particular part of the work.

Part 15, Actions or proceedings relating to real estate. This part of the work is quite extensive, and includes a discussion of the practice as to actions of ejectment, for dower, partition, foreclosure, waste, nuisance, etc., etc.

Part 16, Actions and proceedings of a special nature, whether legal or equitable. This part treats of such proceedings as certiorari, whether

at common law or by statutes; habeas corpus; mandamus; prohibition quo warranto, and the like making more than twenty chapters.

Part 17, Actions and proceedings in particular characters, or by and against particular persons. Such as actions by and against corporations, joint-stock companies, public bodies, public officers, partners, husband and wife, infants, etc., etc., making some twenty chapters.

Part 18, Forms of practice. This part will include such practice forms as may be deemed useful, and such as are not inserted in the text of the work.

Part 19, Forms of pleadings. Including such forms as may be desirable in a work on practice, and such as have not been given in the previous parts of the work.

Part 20, Surrogate's practice. This part will give the full practice in these courts, but it does not discuss the law as to wills, executors,

etc.

Part 21, The Code and the rules. In this part a complete Code, and a set of the Rules of the courts, will be given as they are in force, at the time of publication. From this brief sketch it will be easy to see what may be expected from this work.

And now a few words as to the citation of authorities and statutes. The court of appeals reports are cited by both the number of the New York series, and by the abbreviated name of the reporter. The Revised Statutes are cited from Edmond's second edition, and the original paging of the first edition. The Session Laws are cited by the year, chapter and section, and by a reference to them in Edmond's General Statutes. In preparing this work, most of the English works on practice have been consulted, as well as many of the American works upon the subject. In all of them there have been found valuable suggestions, and they have all been used as digests in referring to the decisions or the statutes. To mention those works which have been deemed most useful would seem like expressing an undue preference, or exhibiting some partiality, and for that reason no works however much esteemed will be mentioned by name.

In selecting the materials for this work, the reports and statutes have been mainly relied on. As the author's set of New York reports is so completely annotated that every case has a note referring to every sub

sequent case in which it is mentioned in an opinion, the number of references will be seen to be almost unlimited. The invariable rule has been to state the rule from the latest and most authoritative decisions, and to cite just sufficient cases to establish the rule, leaving the reader to consult the digests or codes for a collection of all the authorities.

In selecting the forms of practice, those prepared by N. C. Moak, Esq., were examined, and some of them have been used. The legal learning and the accuracy of Mr. Moak adds to the reliability of these forms.

In preparing the text of the work, I have been assisted by some gentlemen of learning and industry, and I cannot let this occasion pass without mentioning their names. Mr. Edwin Baylies, Mr. C. Theodore Boone, and Mr. Clayton M. Parke, counselors at law, have materially aided in collecting and preparing the materials for the work.

The amount of labor bestowed upon the preparation of these volumes will not be appreciated by any one except those who have performed a similar task. But, if it shall prove a safe guide for the student, a ready hand-book for the profession, and a convenient and useful assistant to the judges, the author will have achieved all that he attempted.

Should any member of the bench or the bar discover omissions or inaccuracies in the work, a mention of the fact will be most welcome, and in a second edition will be carefully carried out, with all other possible improvements.

ALBANY, June 30, 1872.

WILLIAM WAIT.

TABLE OF CONTENTS.

PART I. Actions. In which actions are considered generally, and in their

relations to remedies, whether legal or equitable.