PLEADINGS, PRACTICE AND FORMS, ADAPTED TO ACTIONS AND SPECIAL PROCEEDINGS UNDER CODES OF CIVIL PROCEDURE. BY MORRIS M. ESTEE, COUNSELOR AT LAW. THIRD EDITION. REVISED, ENLARGED AND REWRITTEN BY CARTER P. POMEROY, COUNSELOR AT LAW. : IN THREE VOLUMES. VOL. I. SAN FRANCISCO, BANCROFT-WHITNEY CO., LAW PUBLISHERS AND LAW BOOKSELLERS. 1886. L30261 AUG 1 9 1948 Entered according to Act of Congress, in the year of our Lord one thousand eight hundred and sixty-nine, BY MORRIS M. ESTEE, In the Clerk's Office of the District Court of the United States, for the District of California. Entered according to Act of Congress, in the year 1879, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1885, In the Office of the Librarian of Congress, at Washington. PREFACE TO THIRD EDITION. In the preparation of the third edition of this standard work, while the general plan of the two former editions has been mainly followed, certain changes have been made in arrangement of the several subject-matters discussed, whenever a change seemed desirable. An effort has also been made to enlarge the original scope of the work, and enhance its usefulness, by incorporating it in a large number of new forms, adapted to the needs of the profession in all the code States and Territories. The forms so added have been carefully prepared, and have uniformly been approved by the appellate courts. Whenever necessary the forms contained in the previous editions have been revised so as to harmonize with the most recent decisions. Many new and recent authorities have also been examined and cited, from all the States which have adopted the reform procedure; and whenever a change has been made in the rules and doctrines contained in the previous editions, either by judicial decision or legislative enactment, the same has been noted, and the text modified accordingly. All the citations have been carefully compared and verified by reference to the original reports, and it is confidently hoped that they will be found substantially correct. The citations have been placed in notes at the bottom of the pages, and not embodied in the text as in previous editions. SAN FRANCISCO, October, 1884. C. P. P. (iii) PREFACE TO SECOND EDITION. THE preface to the original work states all that need be said as to its plan and scope. The great favor the work has met with from the profession, as well as its intrinsic merits, which are apparent without reference to its popularity, prohibited any change in its plan in this revision. Considerable new matter has been introduced, especially in those parts relating to parties, and to pleadings in general; while new notes and new citations of authorities have been added throughout the work wherever it seemed necessary or desirable. The original citations have also been carefully examined, and the errors incident to a new work corrected. It is impracticable, in a work of this character, to give a statement of the point decided in each case referred to; but it is believed that each citation will be found to sustain directly, or illustrate, the point or subject to which it is cited. The forms have also been carefully examined and, so far as necessary, corrected; and in the second and third volumes will be found many forms not contained in the original work. At the time the original work was written, the Practice Act was in force in California—since that time the Civil Code and the Code of Civil Procedure have been adopted. So far as these codes have changed the law or practice in that State upon subjects treated of, such changes have been stated, or reference made thereto; and wherever a code is cited without giving the name of the state, the codes of California are intended. While the code of each State having one, differs in many particulars from that of every other, yet it will be found that all are based upon common principles, and practitioners in other States will readily adapt this work to the peculiarities of their own code; and in States not having a code, the profession will find it of |