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16. To complaint in common law action, specifying wherein facts
set forth are insufficient to constitute cause of action,....

17. Same, to complaint in equitable action,.

18. Demurrer to one of several defences, constituting defensive

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PRECEDENTS OF PLEADING BEFORE THE CODE IN EQUITY, AND COMMON LAW CASES, AND PRECEDENTS OF ADMIRALTY PLEADING.

(No. 1.)

Form of an original bill in equity, in a suit brought to charge lands purchased from a judgment debtor, with an equitable lien or trust in favor of the judgment creditor, for the payment of the judgment. The parts italicised are such as would be omitted under the present practice, leaving so much of the bill only as constituted what is called the Stating Part and Prayer for Relief, which, with the title of the action, would form, under the Code, a perfect complaint for the same cause of

action embraced in the bill.

To the Chancellor of the State of New-York:

Humbly complaining, sheweth unto your honor, your orators

1 The case is reported under the title of Haverly v. Becker, 4 Com., 169. The Supreme Court sustained the bill and made a decree declaring the judgment to be an equitable lien on the land, and directing a sale of the premises, which decree was affirmed by the Court of Appeals.

2 The bill in equity consisted of nine parts, all of which will be found in this precedent. The first of these parts is the Direction or

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Jacob Haverly, of the town of Middleburgh, county of Schoharie, and John Allen, Jr., of Knox, in the county of Albany.1 That on and previous to the 6th day of December, in the year 1942, one Abraham L. Dietz, of the town of Schoharie, in the county of Schoharie, was indebted to your orators in the sum of about $374.45.

address of the bill to the court as above. (Story Eq. Pl., § 20.) This address is not usual under the present practice, its place being supplied by the title of the cause, which is required to specify "the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant." (Code, § 142, sub. 1.) The old bill in equity was without any title.

1 This second part of the bill is called the Introduction. It contained the names, places of residence, &c., of the parties, exhibiting the bil and sometimes, though not usually, the names of the defendants' Under the Code the commencement or introduction of the complaint need not be in any particular form. "The plaintiff complains that the defendant," &c., is the simplest, and may very properly be used; although some prefer the more formal style, as for example: "The above named plaintiff, A. B., of, &c., complains of the above named defendant, C. D., of, &c., and shows to the court that," &c. For the sake of uniformity, I have usually adopted, in practice, substantially the words used in the Code (§ 142, sub. 2), as the commencement of the complaint: "The plaintiff complains of the defendant and alleges the following facts, constituting his cause of action, that, &c.

2 Here commences the third and most important part of the bill in equity called the Stating Part. It contains a narrative of the facts and circumstances of the plaintiff's case, and of the wrong or grievance of which he complains, and of the names of the persons by whom done, and against whom he seeks redress, and constitutes, in fact, the real substance of the bill. (Story Eq. Pl., § 27.) The statement of the allegations which form this part of the bill, was in all respects the same as the statement of similar facts, is required to be in an action under the Code; and very little of the old equity bill remains under our present system, except this Stating Part and the Prayer for Relief hereafter noticed. [See remarks on this subject, V. S. Plead., pp. 50 to 53.],

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And your orators further show, that the said Abraham L. Dietz, on the said 6th day of December, 1842, was the owner of a certain piece or parcel of land, situate in the towns of Knox and Berne, in the county of Albany, of the value of about fifteen hundred dollars, and which is described as follows: [Inserting a description of the premises.]

And your orators further show, that for the purpose of securing the payment of the said debt so due from the said Abraham L. Dietz to your orators as aforesaid, by making the same a lien upon the said piece or parcel of land, he, the said Abraham L. Dietz, executed a bond and warrant of attorney, for the confession of a judgment in favor of your orators, bearing date the 3d day of December, A. D., 1842, and that on the 6th day of December, A. D., 1842, a judgment was duly perfected in the Supreme Court of this State, upon and by virtue of the said bond and warrant of attorney, for the sum of $748.90 of debt, and $10 damages and costs, as by the record of the said judgment now remaining in the office of the clerk of the said Supreme Court, in the city of Albany, and to which your orators pray leave to refer, will more fully appear.

And your orators further show, that Peter Decker, Esq., the attorney for your orators, in entering up said judgment on said bond and warrant of attorney, neglected to file and docket a transcript of said judgment with the clerk of the city and county of Albany, so as to make such judgment a lien upon the aforesaid described lands and premises; but it was understood by your orators, and also "by the said Abraham L. Dietz, that such judgment was a lien, and that it was stated by your orators, at the time said bond and warrant of attorney was executed, that the

'These several repetitions should, of course, all be omitted.

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