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PRECEDENTS OF PLEADING BEFORE THE CODE IN
EQUITY, AND COMMON LAW CASES, AND PRECE-
( 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, wilh 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
· The case is reported ander 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
Jacob Haverly, of the town of Middleburgh, county of Schoharie, and John Allen, Jr., of Knox, in the county of Albany."
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 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.
· This second part of the bill is called the Introduction. It contained the names, places of residence, &c., of the parties, exhibiting the bill 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, fc., complains of the above named defendant, C. D., of, fc., 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.
? 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.),
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 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.
object of obtaining such judgment. by your orators was, that the said debt might be made secure by being made a lien by said judgment upon the said farm and real estate, and it was so understood by the said Abraham L. Dietz.
And your orators further show unto your honor, that afterwards, and on the 9th day of February, A. D., 1843, the said Abraham L. Dietz sold and conveyed the aforesaid lands and premises by deed, bearing date the day and year last aforesaid, to Gideon Becker, of the town of Schoharie, in the county of Schoharie, as by the record of the said deed of conveyance, now remaining in the clerk's office of Albany county, reference being thereto had, will more fully appear.
And your orators further show unto your honor, that as they are informed and believe, that at the time of the sale and conveyance aforesaid, by the said Abraham L. Dietz to the said Gideon Becker, of the farm and premises aforesaid, the said Gideon Becker was informed by the said Abraham L. Dietz, and knew of the judgment of your orators aforesaid, and the said Gideon Becker as well as the said Abraham L. Dietz and your orators, supposed and believed and understood said judgment to be a lien on the said premises and real estate, sold and conveyed by the said Abraham L. Dietz to the said Gideon Becker as aforesaid.
And your orators further show unto your honor, that at the time of such sale and conveyance as aforesaid, it was agreed between said Abraham L. Dietz and the said Gideon Becker, that the said Gideon Becker should purchase the said farm and premises from said Abraham L. Dietz, subject to the lien of the judgment of your orators, and that he, the said Gideon Becker, should pay, satisfy and discharge the said judgment of your orators.
And your orators further show unto your honor, that the said Abraham L. Dietz sold and conveyed the said farm, lands and premises to the said Gideon Becker, subject to the lien of the judgmeat of your orators thereon; and that an amount equal to the amount of said judgment of your orators was, by agreement between the said Abraham L. Dietz and said Gideon Becker, retained by said Gideon Becker, out of the purchase money for said lands and premises, and was not and has not been paid to the said Abraham L. Dietz, as your orators have been informed and believes.
And your orators further show unto your honor, that they have been informed and believe, that the said Gideon Becker executed a paper writing, and delivered the same 80 executed, to the said Abraham L. Dietz, showing that the deed of conveyance was taken and received by the said Gideon Becker, subject to the lien of the judgment of your orators on the said farm and premises, and that he the said Gideon Becker would pay said judgment to your orators in lieu of the amount of such judgment to the said Abraham L. Dietz, toward the purchase money for said farm and premises, and that your orators have been informed and believe, that said agreement in writing has been lost, he, the said Dietz, having made diligent search for said writing or agreement, and has been unable to find the same, and therefore your orators are unable to state the contents of said agreement more particularly.
And your orators further show unto your honor, that after the promises to your orators as aforesaid, the said Gideon Becker heard or discovered that a transcript of the judgment of your orators had not been filed and docketed as required by law, in the clerk's office of the city and county of Albany, and that since such discovery, the said Gideon Becker has wholly refused, and still doth refuse to acknowledge the lien of your orators said judgment upon the aforesaid described land and premises, and utterly refuses