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“My conclusion therefore, is, that the statement of facts in a complaint should be in conformity with the nature of the action. If the case, and the relief sought, be of an equitable nature, then the rules of chancery pleading are to be applied ; otherwise those of the common law.”

The motion to strike out the averments there complained of, though embracing much circumstantial detail, and apparently many matters of mere evidence, was accordingly denied, " for the reason that the convenience of a court of equity is promoted, by having as many of the circumstances appear in the pleadings, and as few in the proofs, as possible, and for the other reasons already given."

In Wooden v. Waffle, 6 How. 145, the reasoning in the foregoing cases is reiterated by the same learned judge at great length, in consequence of the adverse opinions in Milliken v. Carey, and Williams v. Hayes, hereafter noticed! The distinction between the necessary allegations in common law and equity pleadings is thus drawn: “ The allegations in a pleading at law, consist of a chain of facts all tending to establish some definite legal right. An equity pleading, on the contrary, frequently, if not generally, consists of an accumulation of facts and circumstances without logical dependency, but the accumulated weight of which is claimed to be sufficient to raise or defeat an equity. If a single link be destroyed in the former, the whole conclusion falls; but, if you abstract a fact from the latter, you have not of necessity broken the chain, but only diminished the weight of the whole.” After drawing a similar distinction between what are really material issues, in legal and equitable actions, and defining the latter as “an issue upon a fact which has some bearing upon the equity, and ought to be established," but not a mere matter of evidence; and stating as one of the reasons why chancery pleading was made more in detail, that its purpose was “to put the court in possession of all the facts going to show both the plaintiff's right to relief, and what that relief should be ;" the learned judge proceeds to lay down, that this reason is in no way affected by any provision of the Code. Equity jurisdiction is maintained. It is exercised upon the same principles, and to the same extent, as heretofore. The mode of trial is the same. The relief is adapted to the circumstances of the case. Every reason, therefore, which ever existed for a full statement of the case, exists now."


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In Howard v. Tiffany, 3 Sandf. S. C. R. 695, 1 C. R. (N. S.) 99, it is also laid down that, where a portion of the relief sought is of an equitable nature, it will be often indispensable to set forth facts, which need not be stated in respect of the other relief, “and as much at large as was formerly done in a welldrawn bill in chancery;" and also, that the “facts constituting a cause of action, include not merely the facts upon which the plaintiff's right to relief is founded,” but also “all such facts as are necessary to found the particular relief demanded, and to enable the court to give the proper judgment in the action.”

In Minor v. Terry, 6 How. 208, similar principles are sustained in relation to pleading under the Code generally considered, and it is laid down that, since the abolition of forms, every action is analogous to an action on the case, under the old practice, in which the pleader was accustomed to set forth the facts of his case particularly and at large.

The Rule with reference to the particular subject of injunction is thus laid down: “So, in a complaint in equity, in most cases, where an injunction is prayed for, it is competent to set out the facts which constitute the foundation of the right with particularity and minuteness."

Coit v. Coit, 6 How. 53, before cited, is likewise a strong authority in favor of the doctrine, that, in equitable actions, the former practice and forms in equity are decidedly to be preferred.

Such then is the view taken on the one side of the question, which holds that, for practical purposes, a distinction still exists between the pleadings, in actions of a purely legal or purely equitable nature; that, in actions by which general or special relief is sought, as distinguished from those for the simple recovery of money or of damages, a greater latitude of averment will be permitted; and that, wherever the case is one of doubtful cognizance, the courts will be rather disposed to allow doubtful averments to stand, than to strike them out, at the risk of striking out a portion of what the party himself considers to be his case, and, on the statement of which, some species of relief might possibly be grounded at the hearing.

In Milliken v. Carey, 5 How. 272, 3 C. R. 250, principles in direct opposition to the above, and, in particular, in direct opposition to those in Howard v. Tiffany, above cited, are enounced; and a number of averments, tending to strengthen

a case for equitable relief, and, in particular, tending to show the necessity of an injunction being granted, were struck out as surplusage. Though admitting, that there are "actions of legal and equitable cognizance, between which, as heretofore, the constitution and the laws recognize a distinction,” (on which point the case has been before cited,) the learned judge considered, nevertheless, that, as regards matters of pleading, that distinction does not exist ; that, under the Code, a bare and naked statement of the facts sufficient to ground a title to relief, is all that is admissible: and that nothing more than this can be allowed, even in actions of equitable cognizance, under which head the case itself, (a suit to set aside a trust deed on the ground of fraud,) was clearly to be classified.

classified. A number of statements tending to establish such fraud on the part of the persons against whom relief was sought, were accordingly considered to be irrelevant, and an injunction was denied, upon the complaint as it then stood, on the ground that those statements could not properly stand as part of it, but must be separately brought before the court on affidavit, the pleading itself being confined to a simple statement of the facts constituting the cause of action, to the exclusion of collateral or corroborating circumstances. See, also, on this last point, Putnam v. Putnam, 2 C. R. 64. In Floyd v. Dearborn, 2 C. R. 17, a rigid view on the subject is likewise taken; and in Barton v. Sackett, 1 C. R. 96, similar principles were indirectly renounced: but the strongest authority in support of this restricted construction, in Dollner v. Gibson, 3 C. R. 153, 7 L. 0. 77, a decision which, if sustained, re-establishes the old system of common law pleading in all its strictness, and sets completely at nought the abolition of the forms of that system, enacted by section 140. The opinion in this case declares, in actual words, that that abolition“ in reality amounted to nothing," and lays down as a rule, that, not “ the facts constituting the cause of action,” as provided by section 142, as those facts actually occurred, but, on the contrary, the legal conclusions derived from those facts, form, not merely the proper, but the only admissible subjects of averment.

The statement there drawn in question, was one to the effect that a certain sale was made by one Adam Maitland, as agent on behalf of the defendant, instead of averring the sale, as doubtless might have been done, as one to the defendant himself: and the learned judge granted a motion to strike out all the averments in relation to or connected with Maitland's agency, as immaterial, though, by doing so, the whole cause of action was stricken out. See the same case as hereafter noticed, on the consideration of immaterial or redundant averments, and the measures to be pursued in relation thereto. N. B.-It would appear, from a paragraph in the New York Herald of 7th March, 1852, that this decision has, in fact, been reversed by the general term ; and, though not yet formally reported, it will probably be so before long. In Pattison v. Taylor, 8 Barb. S. C. R. 250, 1 C. R. (N. S.) 174, it was also held, that statements of circumstances tending to establish that a mortgage, sought to be foreclosed, had been long since paid off, were immaterial, and that payment of such mortgage ought to have been pleaded, and the circumstances stated brought forward as evidence in proof of that averment.

The cases last cited are in unquestionable conflict with those in the previous division, and it is submitted in conflict also with the general principle of the Code itself. The spirit of that measure unquestionably is to do away with all technical rules, as such--a spirit especially evidenced by sec. 159, which provides that, in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties. See also, sec. 176, to a similar effect. The measure, taken as a whole, is one of a remedial, and not of a restrictive nature, and ought to be so construed ; and wherever any doubt exists as to its proper construction, the preponderance ought to be in favor of enlarging, rather than derogating from the remedial provisions it contains. Construing it in this spirit, a plaintiff or defendant ought, within reasonable limits, to be allowed the privilege of stating his case in whatever manner he may chose, provided he comply with the general requisites prescribed. So far indeed from any tendency to contract the rules of equitable pleading, and to bind down the mode of averment in equitable cases by the strict and rigid forms of the common law, being evidenced; a directly contrary spirit is manifested by the positive intention to abolish those forms altogether, as expressed in the preamble, (in which those in Equity are not even alluded to); and by the fact that, in the body of the act, the usual course of equity pleading is prescribed, and the very names of equity pleadings adopted without alteration, except in the mere substitution of the term "complaint " for the term “bill.”

The principles laid down in the four cases last cited, are unquestionably, if sustained to their full extent, a complete abolition of all equitable pleading whatever, and amount to a declaration that the most rigid rules of averment, according to the spirit of the old common law system, are still enforceable in all their pristine strictness, in all cases, whether of legal or equitable origin.

This species of interpretation, especially as carried out in the two last cases, seems also to militate irreconcilably with another important class of decisions, which lay down, in distinct terms, the principle that, under the Code, the actual facts of the case form, and form alone, the proper subjects of pleading, and that conclusions of law, as such, are not admissible at all, and, if standing alone, will neither suffice to establish a cause of action, nor to constitute a defence.

Thus in Beers v. Squire, 1 C.R. 84, a mere denial of indebtedness, equivalent to the old plea of nil debet, unaccompanied by any allegation of facts, was held to be no defence at all to an action on a promissory note, and the answer was accordingly stricken out as frivolous, and judgment awarded on a motion for that purpose. In Pierson v. Cooley, 1 C. R. 91; and McMurray v. Gifford, 5 How. 14, the same point was decided ; and similar views are expressed in Mier v. Cartledge, 4 How. 115; 2 C. R. 125. In Mullen v. Kearney, 2 C. R. 18, though no facts are given, the same principle is applied to all cases, in the following words, i. e., " An answer which admits all the facts on which the plaintiff's cause of action is founded, and merely denies generally that the plaintiff has a cause of action, is frivolous, and will be stricken out.”

In Bentley v. Jones, 4 How. 202, a mere denial of interest in the premises there in controversy, without stating facts to disprove specific allegations showing that such an interest existed, was again held to be bad“ because it did not involve a traversable fact, but merely a conclusion of law.” In Russell v. Clapp, 4 How. 347; 7 Barb. S. C. R. 482 ; 3 C. R. 64; Glenny v. Hitchins, 4 How. 98; Tucker v. Rushton, 2 C. R. 59; 7 L. 0. 315; Neefus v. Kloppenburgh, 2 C. R. 76 ; Stewart v. Bouton, 6 How. 71; 9 L. 0. 353; and Eno v. Woodworth, 4 Comst. 249 ; 1 C. R. (N. S.) 262, the same positions are fully sus

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