PREFACE.

In 1846 the state of New York adopted a new constitution, which contained a provision for the appointment of three commissioners, "whose duty it shall be to revise, reform, simplify and abridge the rules and practice of the courts of record of this state, and report them to the Legislature," etc.

The commissioners appointed were learned men in the broad sense of the term; David Dudley Field, then as now a great lawyer, was a prominent member of that commission.

The Code prepared by them was adopted by the Legislature of New York in 1848. Its beneficient effects were felt at once in the administration of justice, and, notwithstanding the opposition of the older members of the bar, who were wedded to the common law and chancery practice, the Code has been adopted by more than twenty-five of the states. Texas is not nominally a Code state, but the mode of pleading is so near that of the Code that Judge Bliss was inclined to classify it as a Code state.

Some others also approximate to Code procedure.

In its essential features the Code was adopted in 1873 by the British Parliament, and thereby, in the home of the common law, has displaced the common law and chancery practice. It has also been adopted in India and many of the British colonies.

These Codes in some respects differ slightly, yet in all essential provisions they are alike. In all the civil action" is the efficient means by which wrongs are redressed and rights asserted. This is accomplished by requiring the plaintiff to state nothing but the facts constituting his cause of action, and it is made the duty of the court to apply the law to such facts. The same rules are applied in favor of the defendant, so that the needless verbiage of common law and chancery plead

ing is discarded, and only the substantive facts upon which the cause of action or defense is predicated need be stated.

This made it possible and expedient to abolish the distinction between actions at law and suits in equity and to administer, both legal and equitable remedies in favor of either or both parties in the same action.

The Code has not attempted to change principles.

A petition or complaint under the Code, to be sufficient, must show a liability of the defendant to the plaintiff, and the same rule prevails when the defendant seeks affirmative relief against the plaintiff.

The design is that all matters in controversy between the parties shall, as far as possible, be determined in one action, and appropriate relief, either legal or equitable, or both, as the justice of the case may require, be applied in each case.

The Code system is comparatively new.

Necessarily it has been administered by judges, some of whom were unfriendly to it, and sought to apply common law rules in construing it.

Other judges have been more or less liberal in construing its provisions. The result has been to produce considerable uncertainty, not only as to what is required in a pleading, but in the mode of obtaining relief.

The author has endeavored to obviate these difficulties and to reduce pleading under the new procedure to a system. He studied law and was admitted to the bar in a common law state, but for more than thirty years has been a resident of a Code state and for twenty years a judge of its court of last resort. These facts are mentioned simply to show his opportunities for acquiring a knowledge of both the common law and the Code.

The theory of pleading under the Code and the pleadings themselves should go hand-in-hand. This is true, whether in

the lecture room or law office.

No general directions can be made to apply to every case. The author, to obviate this difficulty, has devoted considerable space to the consideration of particular causes of action and particular defenses.

These cover a broad range, and it is

believed the forms given will cover almost every case that will arise either at law or in equity.

The forms here given have been prepared by the writer, many of them from the reports, and he believes that they will be found reliable.

In 1880 the author published a work on Pleading and Practice. It was well received, and has already passed through 'several editions. It was mainly a work on Practice, and will be revised solely as such.

This work is now submitted to the profession in the hope that it may aid in administering the Code in its true spirit, and thus, as far as possible, prevent errors and mistakes, and secure the rights of litigants.

FREMONT, April 15th, 1892.

SAMUEL MAXWELL.