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And that the said Gideon Becker may be decreed to pay the amount of said judgment of your orators to your orators, or in default thereof that the said judgment of your orators be declared a lien upon the said farm and premises hereinbefore described; and that your orators may have such further relief, or may have such other relief as the nature of their case may require, and shall be agreeable to equity.
May it please your honor, the premises considered, to grant unto your orators the people's writ of subpoena, to be issued out of and under the seal of this honorable court, to be directed to the said Gideon Becker and his confederates, when discovered, therein and thereby commanding him and them, on a certain day and under a certain penalty therein to be specified, personally to be and appear before the Vice Chancellor of the third circuit in the Court of Chancery, and to answer all and singular the premises, and further, to stand to, abide by and perform such order, direction and decree in the pre
equity practice, unknown to the common as in the foregoing Interrogatory part. This latter, it is now well settled, has no place whatever under the Code, the entire system being reduced to “one of allegation merely, without reference to discovery." That important function of an equity pleading, viz: the obtaining a discovery from, or making for examination of, the defendant is now performed in the more direct and simple manner of producing him upon the stand as a witness on the trial. (See on this subject Plead., 49 to 52, 70 to 75; see also Wooden v. Waffle, 6 How., 145.) Every allegation, therefore, introduced in a bill, by way of interrogatory, or for the purpose a mere examination of the defendant, will be struck out as redundant.
2 This is the Prayer for Relief, which composed the eighth part of the equity bill. It is entirely similar in its uses to the demand for relief which the complaint is required to contain under the Code. (See Plead, pp. 360–369.)
mises, as shall be made therein. And your orators will ever
Dated Albany, March 8th, 1845.
JOHN ALLEN, JR.
Form of a common law declaration in case, in
an action by the holder of a mortgage on lands, against a purchaser from the mortgagor of the equity of redemption, for acts of waste committed after a decree of foreclosure and before sale, with a knowledge that the value of the security will be injured thereby. The parts italicised are such as may be omitted or less formally stated in a pleading for a similar cause of action under the Code.
The Prayer for process is the ninth and last part of an equity bill. The above is the ordinary prayer for process of subpoena to compel the defendant to appear and answer. If a writ of injunction or other process were desired, it was included both in the prayer for relief and the prayer for process. Care was required to include all the parties intended to be made defendants in the prayer for process, as it was a general rule that none were parties, although named in the bill, against whom process was not prayed. (Story Eq. Pl., § 44.) The prayer for process, it is evident, has no place in a pleading under the Code, the action being commenced by summons, in which the parties defendants are named, and by the service of which they are brought into court.
The case is reported under the title of Van Pelt v. McGraw, et. al. (4 Comst., 110.) The mortgaged premises were scanty security for the debt and the defendant, who had purchased under the mortgagor, tonk
TOMPKINS COUNTY, ss. Lorenzo D. Van Pelt, plaintiff in this suit, by Walbridge & Ferris, his attorneys, complains
away the fences and cut down and carried away valuable timber, with a knowledge of the existence of the mortgage and of the insolvency of the mortgagor. The Court of Appeals held that an action on the case would lie against him in favor of the holder of the mortgage, for the injury done to the security; and further, that in order to sustain the action, it was not necessary to show that the primary motive of the defendant, in committing the wrongful acts, was to injure the plaintiff's security ; it was enough that the acts were done by the defendant, with a full knowledge of the circumstances, although done primarily with a view to his own emolument.
The circumstances of this case are somewhat peculiar and novel, and I have, therefore, selected it as a case well calculated to show the analogies that exist between the pleading proper—that is the Stating Part—of an equity bill, as in the last precedent, and the allegations in our common law action on the case, and the mode which the Code prescribes for the statement of facts in a complaint_analogies that have not been lost sight of by our courts, in establishing the present system. (See Minor v. Terry, 6 How., 208; Field v. Stone, 7 How., 12, in which it is said that “every action is now an action on the case.")
In his opinion delivered in this case, at general term (3 Barb., S. C. R., 347), Justice Mason alludes to the defendant's argument, that the plaintiff's remedy was not in a court of law, but in a court of equity, on an application to stay waste, and remarks: "And the argument is not very strong against this action, that the books do not furnish a precedent for the action in this particular case. It was very properly said by the author of Cowen's Treatise, speaking of this action, that this is a very comprehensive action to which no definite boundaries can be assigned. It embraces regions altogether unexplored by the law. And this view of the action is confirmed by going back to the origin and history of the action itself. It is said to be a junior action to debt, covenant, trespass, &c., and that it originated ex-necessitate; of John Southworth and John McGraw, defendants in this suit, by declaration and not by writ of a plea of trespass on the case, for that whereas, heretofore to wit, on the 20th day of May, in the year 1840, Almerin Bailey, and Elizabeth his wife, and William E. Bailey of the town of Dryden, in the said county, executed and delivered to Harvey A. Rice, of the said town, a mortgage on a certain lot of land in said town of Dryden, described as follows, to wit: [Here insert description of premises,] containing one hundred and seventeen acres of land, more or less, subject to the conditions, exceptions and reservations contained in the original patent from the State of New York, for said lot number sixty-six, excepting and reserving, also, all the pine timber on the above described premises – which mortgage was given to secure the payment of five hundred dollars, with
1 I omit the formal caption, stating the name of the court and the term of which the declaration is entitled. The common law declaration, like the bill in equity, had no title like the complaint under the Code.
that its origin is to be traced to the impracticability of even the most acute and sedulous jurist defining the nature of every civil wrong which one member of the community can experience from another;' and that when case arose, not provided for, by the then forms of action, the plaintiff was allowed to state such case to the court, and that the court permitted such plaintiff to have an action upon his own case ; and it is an interesting study to the student to trace the history of this action and mark its progress over so wide a field as it now occupies. And the author of Petersdorf's Abridgement of the English Common Law, in a note, has well defined the use of this action in the following words, 'hence, when neither law nor practice has expressly and in terms, defined the kind of remedy to be instituted for any injury, actions are daily brought on the case itself, that is only a legal and recognized form of statement of the injurious circumstances constituting or occasioning such claim to redress or compensation.' And it is said, Com. Dig., title, action upon the case, letter "A" that in all cases where a man has a temporal loss or damage by the wrong of another, he may have an action on the case to be repaired in damages.' There is no doubt but the general principles which govern this action are applicable to the case made by the plaintiff in the court below, and that upon the facts appearing in the case he was entitled to maintain his action."
the interest, according to the condition of a bond accompanying the same, executed by the said Almerin Bailey and William E. Bailey, and which mortgage contained the usual power authorizing the mortgagee, his heirs, executors, admisistrators or assigns, to sell the said lot of land, in case of default in payment of the said sum or any. part thereof. And whereas, afterwards, to wit: on the 10th day of August, in the year 1842, at the town of Dryden, aforesaid,' the said mortgage, with the bond accompanying the same, was duly assigned by the said Harvey A. Rice to the said plaintiff, whereby the said plaintiff, then and there became the sole owner of the said mortgage and bond. And whereas, afterwards and before the commencement of this suit, default was made in the payment of the principal and interest secured to be paid by the said mortgage, and the said plaintiff instituted proceedings to foreclose the said mortgage, in the Court of Chancery of the State of New-York, before the Vice-Chancellor of the sixth circuit, and such proceedings were therein had, that, afterwards, to wit, on the 25th day of August, in the year 1844, a decree in favor of the said plaintiff, for the sale of the said lot of land, was obtained in the said Court of Chancery, which decree was entered, as of the 13th day of May, in the year 1843, whereby, among other things, the said lot of
1 The declaration was required to state a time and place to every material traversable fact, although the omission to do so could only be reached by special demurrer. (1 Chit. Pl., 258–260.) This is no. longer necessary, and a demurrer will not lie for such an omission. A statement of time and place is required only when necessary to render the complaint definite and certain, and if not made in such cases, remedy would be by motion to correct the pleading. (See Plead., pp. 274, 287, 353.)
? This is not the allegation of a fact, but of a mere legal conclusion, and is unnecessary either in a common law declaration, or a pleading under the Code.