Jayne, 4 How. 119; 2 C. R. 69, before cited, the mode of stating a cause of action for false imprisonment, as theretofore in use under the old practice, was held to be all that was necessary. In Dollner v. Gibson, 3 C. R. 153; 7 L. O. 77, a most decided preference is shown for the employment of the old-established form of a count for goods sold and delivered. In Leopold v. Poppenheimer, 1 C. R. 39, a complaint for breach of promise of marriage, following the old form of declaration, was declared sufficient, with some slight modifications; and, in The Stockbridge Iron Company v. Mellen, 5 How, 439, it was considered that a complaint against a common carrier, using the first of the old common law counts, would be good, although all the other counts, the pleader having employed the whole of the old form, were to be stricken out as redundant.-See also the same general principle laid down in Howard v. Tiffany, 2 Sandf. S. C. R. 695, 1 C. R. (N. S.) 99.

On the other hand, in actions of an equitable nature, a decided preference ought to be given to the forms of equity pleading, so far as they are consistent with the Code.-Coit v. Coit, 6 How. 53. Although the forms of common law pleading are expressly abolished by the preamble of that measure, those in equity are not, and it would seem that, so far as they are not inconsistent with the Code, they are not repealed.

As a general rule, however, all previous forms must be considered as abolished, according to the express provision to that effect in section 69; and the question then arises, what is now the proper form of averments of fact for the future, both generally, and with reference to the particular form of relief to be sought under different states of circumstances.

There can be no doubt but that, to a certain extent, the same principles of averment will, for the future, govern the pleadings in all actions whatever, whether of common law or equitable cognizante; and indeed such was, in many respects, the case, even under the former system, with reference to those general principles which lie at the root of all good pleading whatever, whether legal or equitable. It would be difficult to find a clearer or more accurate definition of what pleadings ought to be under the Code, and this, in all cases, and without reference to the peculiar nature of the relief sought, than that laid down in Boyce v. Brown, 7 Barb. S. C. R. 80, in the following words:"The pleader may use his own language, but the necessary

matter must be there, and be stated in an intelligible and issuable form, capable of trial. Facts must still be set forth according to their legal effect and operation, and not the mere evidence of those facts, nor arguments, nor inferences, nor matter of law only." "Nor should pleadings be hypothetical, nor alternative," and many cases under the old practice are cited. "Good pleading should be material, single, true, unambiguous, consistent, and certain to a common intent as to time, place, person, and quantity, and not redundant or argumentative." Again, "As a general rule, a pleading to be good by the settled principles of pleading as modified by the Code, must state the facts constituting a legal cause of action or ground of defence; and these should be set forth in a plain, direct, definite, certain, and traversable manner, and according to their legal effect."

To this extent, then, the pleadings in all actions, of whatsoever nature, must conform to the same general requisites; but, from this point, the question branches out into many ramifications, on which the different courts, and different branches of the same court, have held widely diverse opinions.

The grand conflict of judicial construction, has been as to whether distinctions ought or ought not to be drawn, between the mode of averment of causes of action, or grounds of defence, of a strictly legal nature on the one hand, or of one strictly equitable on the other; or whether, on the contrary, the same, and that a rigid and inflexible system of averment, essential in all, whether legal or equitable, in their nature and origin; and not only this, but some cases have gone so far as to shadow out the doctrine, that a cause of action belonging to the one class, cannot be met by a line of defence, belonging to the other, though, on a careful comparison of the whole of the reported cases, it does not appear that this view was sound, even under the Codes of 1849 and 1851; see Hill v. M'Carthy, 3 C. R. 49; Otis v. Sill, 8 Barb. S. C. R. 102. The recent amendments in secs. 150 and 167, put the point now beyond question, that such joinder is admissible, wherever appropriate. In Shaw v. Jayne, 4 How. 119, 2 C. R. 69, above cited, the more liberal view on this contested point was, for the first time, asserted, and it was held, "that the pleader should adopt the form of his statement to the class," i. e., of legal or equitable actions "to which the case belongs." See also Otis v. Sill, 8

Barb. S. C. R. 102, above noticed. In Knowles v. Gee, 4 How, 317, it was admitted that "the legislature, by adopting the forms of chancery pleadings, had given unequivocal indication of a preference for those forms," and that, in consolidating two distinct systems of jurisprudence, "it became indispensable to borrow something from each." In Linden v. Hepburn, 2 Sandf. S. C. R. 668, 5 How. 188, 3 C. R. 165, the principle that the distinction between legal and equitable remedies still subsists, is laid down in the clearest terms. In Burget v. Bissell, 5 How. 192, the general rule above referred to, i. e., that the mode of statement should be adapted to the relief claimed, is again clearly repeated, the distinction being again drawn between actions of legal and equitable cognizance, and the principle laid down, that, in cases where there was any doubt whether the action or defence was of an equitable nature, any averments adapted to the latter contingency ought to be allowed to stand; whilst, in The Rochester Bank v. Suydam, 5 How. 216, the same conclusions are enounced with the utmost clearness, and in the following terms:

"The kind of relief given by a court of equity, imperatively required a different mode of stating the case, from that adopted in the common law courts.

The decree in chancery, with all its varied provisions, its conditions and limitations, could not be ingrafted upon the record of a common law action. The two were incompatible. From the one was carefully excluded every fact not essential to enable the court to determine for which party to give judgment. The other required a consideration of all the circumstances bearing upon the nature of the judgment, and going to modify or vary its provisions."

The learned judge then summed up his argument as follows: "So long as jurisdiction in equity and law are kept distinct, and courts of justice are permitted to adapt the relief thus afforded to the facts and circumstances in one class of cases, while they are confined to a simple judgment for or against the plaintiff in all others, so long must different rules be applied to pleadings at law or in equity.

"To do this is not inconsistent with the provisions of the Code, which does not attempt to abolish the distinction between law and equity, even if the legislature had the power to do so under the constitution.-See Const. Art. 6, secs. 3 and 5.

"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."

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