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to pay to your orators their said judgment, or any part thereof,
And your orators further show unto your honor, that they were not informed and did not know that a transcript had not been filed as required by law in the clerk's office of the county of Albany, until on or about the 20th day of December last, but on the contrary, always suppose that all legal and necessary steps had been taken to make said judgment a lien upon said premises.
And your orators further show unto your honor, that as they are informed and believe, the said Abraham L. Dietz, the defendant in said judgment, is wholly insolvent and unable to pay his debts, and that unless the judgment of your orators shall be declared a lien upon said farm and premises, your orators will lose their said debt.
And your orators further show, that said judgment remains unpaid and unsatisfied, and as your orators believe unreversed, and that the whole amount of said judgment is now equitably due to your orators from the said Gideon Becker. And
your orators further show that they are informed and believe that the said Gideon Becker is now the owner of the aforesaid described farm and premises.
And your orators further show that they are informed and believe that the said Gideon Becker threatens to sell and convey the said farm and premises, and by that means deprive your orators of all equitable lien of their said judgment upon the said farm and premises, and so avoid the payment to your orators of the amount of their said judgment, as by said agreement with the said Abraham L. Deitz, and the premises to your orators, before he had discovered the said judgment was not a legal lien upon said farm and premises, he was in duty and equity bound to do.
And your orators had well hoped that the said Gideon Becker would have paid the judgment of your orators, as by his said agreement and promises, in equity and good conscience, he ought to have done. But now so it is, may it please your honor, that the said Gideon Becker, combining and confederating with divers persons, whose names are at present unknown to your orators, but which when discovered they pray leave to udd as parties to this, their bill of complaint, with apt words, to charge them in the premises, contriving how to injure and aggrieve your orators in this behulf, has altogether neglected and declined to pay your orators’ aforesaid just demunds against him, alleging divers unfounded objections and pretences in that behalf.
Sometimes? the said Gideon Becker pretends that although he bought the said farm, subject to the lien of the judgment
* This part of the bill is called the Confederating part. It was usually, but not invariably, inserted in bills, and was never necessary ; and, indeed, was generally treated as surplusage, so much so, that it was not considered necessary to respond to it in the answer. (Story Eq. Pl., § 29.) Such allegations in a complaint under the Code would be clearly redundant, and would be liable to be expunged on motion.
2 Here follows what is called the Charging part, being the fifth part of an equity bill. It sets forth the matters of defence or excuse which it is supposed the defendant intends or pretends to set up to justify his non-compliance with the plaintiff's claim, and then charges other matters which disprove or avoid the supposed defence or excuse. It contained in general but little more than an enlargement of the plaintiff's statement, as set forth in the stating part of the bill; and was often omitted; and, indeed, was not considered indispensible in any case. (Story Eq. Pl., $$ 31, 33.) Allegations of this description are not only unnecessary, but are not allowed in a pleading under the Code. In Clark v. Harwood (8 How., 470), Justice HARRIS, in striking out as irrelevant certain allegations of this description from a complaint, remarks: “We have in this extract a very fair specimen of the system of pretence and charge which prevailed so extensively in Chancery pleading. The replication being general, the plaintiff of your orators thereon, which was considered by the said Abraham L. Deitz and the said Gideon Becker, as so much towards the purchase money of said farm and premises; and that he would have paid the amount of the said judgment of your orators in addition thereto, had not said judgment been considered a part of the consideration towards the purchase of said farm, yet he pretends that your orators having neglected to docket said judgment in the ofice of the clerk of Albany county, until after the said Gideon Becker became the purchaser and owner thereof, the said farm was thereby free and clear from the lien of said judgment and the said Gideon Becker from the payment of the same, notwithstanding the promises of the said Gideon Becker to pay your orators before he had discovered thé said judgment had not been docketed according to law. The contrary whereof your orators charge to be the fact, that the said sale and conveyance of the said farm by said Abraham L. Dietz to said Gideon Becker, and the deduction of the amount of said judgment from the purchase money, and the agreement to pay the same to the said Abraham L. Dietz, and subsequently to your orators, or one of them, renders the suid Gideon Becker as liable in equity as he would have been in law, if
undertook to anticipate in his bill the matters which might be brought forward in the answer by way of defence. These he set forth as pretences on the part of the defendant, and as a kind of replication in advance, and to meet and avoid such matters, if they should be set up in the answer, he proceeded to allege in the form of charges, certain other matters. Such charges the defendant was required to answer, and thus the plaintiff obtained the benefit of an examination of the defendant upon all the matters embraced in the charging part of the bill. I need scarcely say that nothing of this kind is allowable under the Code. Although it has been strenuously contended that the principles of equity pleading are still retained; yet, certainly, 80 far as it relates to pretences and charges, they are no longer allowable. The plaintiff is to state the facts which constitute his cause of action, and nothing more.”
said judgment had been regularly docketed in the Albany county clerk's office, to pay the same. All of which actings and doings and practices of the said Gideon Becker and his confederates, are contrary to equity and good conscience, and tend to your orators' manifest wrong and injury.
In tender consideration whereof, and forasmuch as your oralors are remediless in the premises at common law, and cannot have adequate relief except by the aid and interference of this honorable court, where matters of this nature are properly cognizable and relievable.1
To the end, therefore, that the said Gideon Becker, and his confederates when discovered, may full, true, direct and perfect answer make, your orators hereby waiving the necessity of such answer being made on the oath of the said Gideon Becker, according to the best of his and their knowledge, information, recollection or belief, to all and singular the matters in this your orators' bill of complaint contained; and that as fully and at large, parugragh by paragraph, as if the same were here again repeated, and he thereunto interrogated ; and especially that the said Gideon Becker and his confederates shall set forth and discover, whether the said Gideon Becker on or about the 8th day af February, in the year 1843, did not purchase from the said Abraham L. Dietz, the farm and premises hereinbefore described, and that whether on such sale and
This constitutes what is called the Jurisdiction clause, the sixth part of an equity bill, intended to give jurisdiction of the suit to the court, by a general averment that the acts are contrary to equity, and the plaintiffs have not an adequate remedy at law. It was wholly unnecessary, for it would not of itself have given jurisdiction, and unless the case made by the bill otherwise clearly showed jurisdiction, it would be dismissed notwithstanding the averment; and the bill clearly showed a case of equitable jurisdiction, it would be sustained although the clause was omitted. (Story Eq. Pl., § 34.) In a pleading under the Code such averments are not only unnecessary, but are mere surplusage and should never be inserted.
conveyance it was not distinctly stated and made known to the said Gideon Becker, by the said Abraham L. Dietz, that your orators had a judgment against him, the said Abraham L. Dietz, which was a lien upon said farm and premises, amounting to the sum of $748.90 , and costs, or thereabouts ; and whether it was not agreed by the said Abraham to sell, and by the said Gideon to buy said farm from him, the said Abraham, subject to the lien of said judgment of your orators on said farm and premises; and whether he, the said Gideon Becker, did not believe that said judgment, at the time of the sale and conveyance of said farm and premises aforesaid was a valid lien and incumbrunce upon said farm to the amount thereof. And whether, after he, the said Gideon Becker purchased the farm and premises aforesaid, he did not promise your orators, or one of them, that he would puy to your orators the amount of their said judgment, and whether he ever refused to acknowledge the lien of said judgment upon said farm and premises, or pay the same until after he ascertained that said judgment had not been docketed in the Albany County Clerk's office, and consequently was not a lien upon said farm and premises; and whether he, the said Gideon Becker, had not threatened to sell and convey said farm to avoid the equitable lien of the said judgment of your orators upon said farm and premises, and thereby deprive your orators of all remedy for the recovery of the amount of said judgment "
1 The foregoing constitutes the seventh part of an equity bill, and is called the Interrogatory part. This was a very important part of an equity pleading, its object being to prevent evasion, and compel a full answer and discovery from the defendant. (Story's Eq. Pl., $$ 35 to 40.) Indeed the ordinary chancery bill always had a double object in view, namely: first, as a pleading governed in all respects by the principles which regulated the mode of stating a declaration in an action at law, as we have seen above in the stating part of the bill; and second, as an examination regulated exclusively by rules of