INTRODUCTORY NOTE The purpose of this volume is to point out through selected cases, the principal problems of civil procedure, to explain how they were approached at common law and to indicate how they are commonly dealt with in modern courts. Such a course it is believed will not only prepare the student for the more intelligent study of the procedure of the state in which he expects to practice, but will also assist him in those branches of substantive law that are rooted in procedure. It is hoped, too, that in schools where the local practice alone is taught and in the office, preceptor and student may find here material useful for comparative study. Indeed, as the practice of the law tends in this country to extend beyond state boundaries, it becomes increasingly dangerous to restrict one's information to the methods of a single locality. While one can hardly expect to become expert in the daily routine of courts other than those in which his life's work is centered, a broad comprehensive view of the more important points upon which a diversity of practice may be anticipated is an equipment not to be despised. There is another reason why the ground-work of procedure should be studied more attentively than in the past. Procedure is, today, perhaps the weakest spot in our system of jurisprudence. Developed to meet the needs of a state of society that has long since ceased to exist, amended often by careless legislation, it is a forlorn patchwork that any one can attack and few defend. Change is inevitable and it is most important that reform when it comes should be intelligently directed; that the problems of comparatively easy solution should not be confused with those that are fundamentally difficult; and that the subject be treated as a whole, with a view to the development of an orderly, practical system, as simple as is compatible with the complexity of modern civilization. In approaching the subject no theoretical notions, no doctrinal discussion can equal the study of cases in which the very points have arisen. In fact, there is no better test for determining whether any doubt or difficulty is real or purely imaginary than the crude experience of life itself. The first part of the book deals with parties to actions, and the forms of and proceedings in actions, leading up to pleading; but with the exception of a few cases on the plaintiff's statement of claim and brief mention of the motions based on the pleadings after verdict, pleading has been omitted. This is not because it is not an important part-perhaps the most important part-of procedure, but because excellent case books on that subject are available and it was thought best that the instructor be given the opportunity to choose between common law and code pleading. The cases leading up to that subject are adapted to either course. The remainder of the book deals with trials, judgments, executions, and appeals, topics greatly neglected in law courses although it is difficult to see why, since they include many stimulating problems. Perhaps the size of the subject is a deterrent. In fact, in spite of a real effort at condensation it is not probable that all the cases printed can be read in course in the number of hours that can be spared in an already crowded curriculum. The instructor, therefore, should select those best suited to his own needs, using the others for occasional reference. Even so, many points worthy of full discussion have been forced into the notes. When this course was first offered in the Law School of the University of Pennsylvania, in the fall of 1910, it was in the nature of an experiment. That it has commended itself to the Faculty who have observed the results, would indicate that a real gap in the curriculum has been filled. |