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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 orators 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, paragragh 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

1 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 if 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 incumbrance upon said farm to the amount thereof. And whether, after he, the said Gideon Becker purchased the furm and premises aforesaid, he did not promise your orators, or one of them, that he would pay 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

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

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 of 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 pray, &c.1

Dated Albany, March 8th, 1845.

JACOB HAVERLY.

JOHN ALLEN, JR.

H. WYMAN, Sol. for Comp'ts.

S. H. HAMMOND, of Counsel.

(No. 2.)

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.

1 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.

2 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, took

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;

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.

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