CHAPTER IV. PLEADING AND PRACTICE IN EQUITY. 61. In general. In every system of jurisprudence some forms of proceeding must be established to bring the matters in controversy between the parties who are interested therein before the tribunal by which they are to be adjudicated.1 Procedure in courts of equity is divided into two heads: (1) The pleadings in framing a suit in equity; and (2) the practice in conducting a suit in equity. Pleadings are the written allegations of the respective parties in the suit; that is to say, the written statement of the complainant, containing in a due legal form the facts of the case on which he grounds his title to relief, or to some equitable interposition or aid from the court, and the written answer or defense of the defendant to the charges of the complainant, either denying them altogether, or admitting them, and relying on some other matters, as a bar to the suit, and insisting upon the want of title in the complainant to the relief sought, or to the interposition or aid of the court, and the written reply thereto by the complainant.3 The practice in a suit in equity means all the various proceedings in the suit, whether by the positive rules or the usage of the court, and whether in 1 Story, Eq. Pl. § 1. 2 Story, Eq. Pl. § 4. Story, Eq. Pl. § 4. A court of chancery cannot obtain jurisdiction save by the filing of written pleadings, and the extent of the jurisdiction in the case under consideration is determined by the contents of the pleadings. Kerfoot v. People, 51 Ill. App. 409. A learned judge has defined pleading to be the formal mode of alleging that on the record which should be the support or defense of the party on evidence. Read v. Brookman, 3 Term R. 159. Pleadings are not, as is sometimes supposed, the oral arguments of counsel, and especially their addresses to the jury or to the court. 4 Minor, Inst. Com. & St. Law (2d Ed.) 593 (548). terlocutory or otherwise, which may become necessary or proper for the due conduct thereof, from the beginning to the final determination thereof. Pleadings in equity were probably borrowed from the civil law, or from the canon law, or from both. The early chancellors were for the most part, if not altogether, ecclesiastics, and many of them were bred up in the jurisprudence of the civil and canon law, and, in the administration of their judicial functions in the court of chancery, naturally transferred into that court the modes of procedure with which they were most familiar. Hence, coincidences between pleadings and practice in chancery and pleadings and practice in a Roman suit, and in an ecclesiastical suit, may be traced." § 62. Construction of equity pleadings. Pleadings in equity, although framed with a regard to certainty and uniformity, were always, in their style and character, of a more liberal and less technical cast than at common law. It has been said that in pleading there must be the same strictness in equity as in law. However true this may be as to pleas in equity, it is not true in the framing of bills or answers, in respect to which more liberality prevails. It is said that certainty to a common intent is the most that the rules of equity ordinarily require in pleadings, for any purpose. A bill will not be held bad on demurrer, merely because it contains many vague and irrelevant averments, if, taken as a whole, it 4 Story, Eq. Pl. § 4. Story, Eq. Pl. § 14; Cooper, Eq. Pl. 8, 9; 3 Reeve, Eng. Law, 380. • Story, Eq. Pl. § 25; Cooper, Eq. Pl. 8. 7 Story, Eq. Pl. § 240; Hartwell v. Blocker, 6 Ala. 581; Carleton v. Leighton, 3 Mer. 671; Carew v. Johnston, 2 Schoales & L. 305; Birely's Ex'r v. Staley, 5 Gill & J. (Md.) 432. For case occasioning this dispute, see Story v. Windsor, 2 Atk. 632; McCabe v. Cooney, 2 Sandf. Ch. (N. Y.) 314. In Story, Eq. Pl. § 240, certainty in pleadings at the common law is divided into three heads, applicable to different parts of the pleadings, and it is said: "The first kind is certainty to & common intent, and that is sufficient in a bar which is to defend the party and to excuse him. The second is certainty to a certain intent in general, as in counts, replications, and other pleadings of the plaintiff; that is, to convict the defendant, as in indictments, etc. The third is certainty to a certain intent in every particular, as in estoppels states facts entitling complainant to relief. It is a rule of equity, as well as in law, that, if a pleading admits equally well of either of several constructions, that construction is to be adopted which is least favorable to the pleader; that is, the allegations in the bill, when they are in any degree equivocal, must be taken in the sense most unfavorable to the party whose pleading is the subject of construction.10 Although a demurrer to a bill admits all facts which are well pleaded, yet this does not change the rule of pleading that the allegations in the bill must be taken most strongly against complainant.11 § 63. Name and nature of pleading. The nature of a pleading in equity depends on its substance, regardless of the name given it by the pleader.12 Thus, a court will look at the material averments of the bill, and from them determine its true character, and will grant the relief prayed for, if the averments show that the complainant is entitled to relief, and the prayer admits of it, notwithstanding the pleader may have given it a wrong name.13 Whether a bill be an original bill or a bill of review is to be determined by its substance—that is, by its allegations and object—rather than by the name the pleader gives it.14 which are odious in the law. It may perhaps be correctly af firmed that certainty to a common intent is the most that the rules of equity ordinarily require in pleadings for any purpose." 8 Moore v. Harper, 27 W. Va. 362. • Williams v. First Presbyterian Soc. in Cincinnati, 1 Ohio St. 478. 10 Peipho v. Peipho, 88 Ill. 438; Meanner v. Carroll, 46 Md. 193. See Lillard v. Mitchell (Tenn. Ch.) 37 S. W. 702. 11 Dunham v. Village of Hyde Park, 75 Ill. 371. An allegation in a bill which seeks relief against a judgment at law against complainant and another, as partners, "that by the records of said court there appears to have been an appearance entered by some one," must be construed to mean that the appearance was entered for both defendants. Stubbs v. Leavitt, 30 Ala. 352. 12 Sturm v. Fleming, 22 W. Va. 404; Carter v. Allan, 21 Grat. (Va.) 241; Bauer Grocer Co. v. Zelle, 172 Ill. 411, 50 N. E. 238; Pethtel v. McCullough, 49 W. Va. 520, 39 S. E. 199. 13 McConnel v. Gibson, 12 Ill. 128; Ridgely v. Bond, 18 Md. 433; Schenck v. Peay, Woolw. 175, Fed. Cas. No. 12,450. 14 Ex parte Smith, 34 Ala. 455. CHAPTER V. BILLS AND INFORMATIONS IN EQUITY. $ 64. In general. A private party commences his suit by preferring to the court having jurisdiction a written statement of his case, which is called a "bill in chancery," or a "bill in equity," which is in the nature of a petition to the court, and states therein the material facts, and concludes with a prayer for the appropriate relief, or other thing required of the court, and for the usual process against the parties against whom the relief or other thing is sought.1 In the absence of statutory enactment, the practice in the courts of chancery is to commence the suit in all cases by filing the bill of complaint of the complainant, which concludes by praying for the appropriate process, which is then issued accordingly. This is still the practice in many jurisdictions, including the federal courts. Except in some early instances, bills have always been in the English language, and a suit preferred in this manner in the court of chancery was, therefore, commonly termed in England a "suit by English bill," by way of distinction from proceedings in suits within the ordinary jurisdiction of the court, which, as also in the other courts of common law, were anciently in the French or Norman tongue, and afterwards in the Latin.* When the suit is instituted on behalf of the government, or of those who partake of its prerogative, such as idiots and luna 1 Story, Eq. Pl. § 7; Mitford, Eq. Pl. 7. 24 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116); Cooper, Eq. Pl. 17; Mitford, Eq. Pl. 6, 46. 34 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116); United States Equity Rule 11. 4 Story, Eq. Pl. § 7; Mitford, Eq. Pl. 8; 4 Minor, Inst. Com, & St. Law (2d Ed.) 1237 (1121). tics, or whose rights are under its particular protection, such as the objects of a public charity, the matter of complaint is offered to the court by way of information given by the proper officer of the government, as by the attorney general or solicitor general, and not by way of petition. When the suit immediately concerns the rights of the government alone, these officers proceed purely by way of information. When the suit does not immediately concern the rights of the government, its officers depend on the relation of some person, whose name is inserted in the information, and who is termed the "relator," and who is considered as answerable to the court and to the parties for the propriety of the suit and its conduct, and may be made responsible for costs, if the suit should appear to have been improperly instituted or conducted. If the relator has a personal ground of complaint, it is incorporated with the information, and they form together an information and bill." A relator is not indispensable. The attorney general may proceed in the suit without one. It is said that in informations on behalf of idiots and lunatics a responsible relator is necestary. Informations differ from bills little more than in form and name, and therefore the same rules are, in general, applicable to both. An exception exists with reference to informaticns respecting charities, with relation to which the court will not require the same strictness, either as to parties or as to pleadings, as is ordinarily required in bills.10 A pleading Mitford, Eq. Pl. 7, 21-23; Story, Eq. Pl. § 8; Cooper, Eq. Pl. 101107; Adams, Eq. (8th Ed. by Ralston) 538; Attorney General v. Moliter, 26 Mich. 444. Adams, Eq. (8th Ed. by Ralston) 539; Mitford, Eq. Pl. 23, 100; Cooper, Eq. Pl. 107; Attorney General v. Parker, 126 Mass. 221; Attorney General v. Central R. Co. (N. J. Eq.) 48 Atl. 347; Newark Plank Road & Ferry Co. v. Elmer, 9 N. J. Eq. 755. 7 Story, Eq. Pl. § 8; Mitford, Eq. Pl. 22, note (d). 8 Attorney General v. Tyler, 2 Eden, 230, 1 Dickens, 378; Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 33; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 14. Story, Eq. Pl. § 8; Mitford, Eq. Pl. 21-24, 100; Cooper, Eq. Pl. 101 107. 10 Story, Eq. Pl. § 8. |