ing that change to the existing practice in which the profession is already grounded. In so far as the new makes no departure from the old, emphatic demonstration to that effect is mandatory. In those respects wherein the old is modified, attention should be focused upon the old as the new is studied, for only in this way can the legal mind, schooled in existing methods, be led to a true appraisal of innovation. To accomplish these purposes has been the author's outstanding concern in the preparation of these volumes.

Concretely, the present work is based upon a presentation in degree exhaustive within reasonable space limitations of the various statutory and rules provisions which have served as the basis for the Rules of Civil Procedure for the District Courts of the United States. This might have been done (1) by merely citing these provisions, or (2) by statement of the author's conclusion as to the relationship between the provisions cited and the Rule involved. In instances where the Rule under consideration is based upon some State provision, lawyers of that particular State might have been served fairly well by the first method, but it would have offered no practical assistance to those of other States having no such provisions and without ready access to foreign statutes. Nor would the first method have satisfied lawyers interested in studying the content of possibly identical or similar provisions of sister States and without convenient access to the statutes thereof. The second method in all propriety would not have satisfied the thorough lawyer who desires to do his own studying and draw his own conclusions. The author, therefore, has actually set out in the notes the basic sources of the several Rules, to permit the word-by-word comparison which alone makes possible a satisfactory constructive deduction. Where similar source provisions are found in many codes, an attempt has been made to present sufficient material and comment regarding each to enable the user to draw an accurate conclusion as to the relationship with the Rule in question. The scope of this matter may be seen at a glance by reference to the tables just preceding the Index in Volume 2. Necessarily, court decisions interpreting existing provisions will in many connections have pertinent if not decisive bearing upon the new Rules, and the aim has been to present such authorities in quantity and variety sufficient to give satisfactory leads for research purposes. Federal decisions have, as a rule, been presented in their entirety in all pertinent connections.

In short, the author's purpose has been to place before the eyes of the lawyers of "code" States material indicating how their knowledge of "code" practice can start them confidently on their way in dealing with the new Rules of Civil Procedure for the District Courts of the United States; to give lawyers of "non-code" States material which will enable them to understand quickly how provisions similar to the new Rules have been handled in actual practice; and to enable all who have practiced under the former Federal Equity Rules to see the exact relationship of those former Rules to the present Rules of Civil Procedure.

In a number of connections not only members of the Advisory Committee but other outstanding lawyers and judges who have studied the several drafts leading up to the Rules in their present form have publicly discussed them. These comments are invaluable to a thorough understanding of the subject matter, and not only have the periodical references where they may be found in entirety been cited but portions of their comments have often been quoted herein, the better to indicate the scope of their discussion. The author has also made comments of his own where they appeared to be in order.

To co-ordinate this diverse material to best advantage the plan was adopted of separating the notes to the several Rules and subdivisions thereof into two divisions, the first under the head of "Comment" embodying material particularly suggested by that topic, and the second under the head of "Source Authorities" embodying the source materials. Out of deference to the fundamental importance of English source matter it has, where pertinent, been placed first, followed by that from the United States statutes and former Federal Equity Rules, with the material from the States concluding in alphabetical sequence. It is believed that by numbering the notes and providing the user with an outline thereof, immediately after the text of each Rule, all of this material has been made readily available.

In view of the distinct impression that at least some members of the Advisory Committee hold to a belief that differences between law and equity should be regarded as eliminated and that pleading as a basic element of procedure has had "its day," the point of view of such members in framing the present Rules having been to set up a system in which the importance of pleading may be held to be minimized, the author may have laid himself open to adverse comment from

some quarters by making so liberal a presentation of note material under Rules 2 and 8. From what he conceives to be a practical point of view, however, he could not to himself justify any treatment of these particular Rules which would not take into account the underlying importance of their predecessors in the past. That the inherent distinctions between law and equity cannot be eliminated by a breath is best realized by reference to the universal difficulties which courts have long had with the problem. If absolute leaping over of the barriers is the present desideratum, tripping can be best avoided by careful delineation of the barriers before the leap is made. In so far as pleading is concerned, the Advisory Committee did well, perhaps, to eliminate from the Rule dealing therewith phraseology which in the past furnished ground for judicial confusion. But if the intention was to relax the requirements of what lawyers know and recognize as good pleading, which is one and the same thing under all systems and regardless of terminological differences in codes or rules provisions, the conclusion may be hazarded that there will be a forceful dissent from a representative portion of the bench and bar. Bad pleading has done much to hamper the administration of justice. Even with such beneficent supplements as are provided by the present Rules that quality of pleading will continue to be an irritating drag. It is inconceivable that it is to be encouraged or even condoned. On the other hand, good pleading has been the strongest feature of a procedure which has oftentimes performed well, even without the additional adjuncts which the so-called "reformed procedure" has imported. The author believes he will be amply seconded in the suggestion that in the future nothing in all the Rules of Civil Procedure for the District Courts of the United States will do more to expedite the course of civil justice than pleadings drawn with care in accordance with a sound theory arrived at after the due factual investigation and deliberation over the law which any lawyer owes to his client and the public before he invokes the processes of the courts.

One problem which will arise in practice under the new Rules is their effect upon existing Federal statutes. Comment in this regard will be found in many appropriate connections throughout, and the tables preceding the Index in Volume 2 will lead the user to note material dealing with the problem presented by particular statutes.

Many of the present Rules of Civil Procedure embody matter having its source in code sections which contain not only the source material for the Rule in question, but other matter foreign to its immediate content. Manifestly, the other matter is of no concern in such a connection; its presence would only be confusing. Hence in citing the source statute only the material bearing upon the Rule in question has been set out. The user will of course understand that in consequence statutory sections may at times embody other matter in addition to that actually mentioned.

The author would not close this preface without paying a sincere tribute to the achievement of the Advisory Committee. Not only did it prepare preliminary drafts which in main content have been vindicated by survival in the present form of the Rules, but it succeeded in commanding the suggestions and co-operation of thousands of lawyers in an enterprise the like of which has never before been noted in judicial history. The result, strengthened by the final modifications of the Supreme Court itself, cannot be said to be the handiwork of one man or even one group of men; it is the product of the American Bar, and is a fitting monument to the profession as a whole. Nevertheless, the inspiration came initially from the Committee. The notes which it prepared and appended to its drafts provided a natural starting point for everyone undertaking to analyze the present Rules, and the author of this work is no exception. He is deeply grateful for the assistance received therefrom.

Appreciation is also due Messrs. J. C. Cahill, Basil Jones and J. M. Henderson, upon whose knowledge of procedure the author has freely drawn, and to Mr. Walter F. Dodd, of the Chicago Bar, for helpful suggestions made.

Chicago, Illinois

June, 1938

PALMER D. EDMUNDS