plaintiff of his right to the whole of the relief which he seeks to obtain; thus in the case of a single bond creditor suing for satisfaction of his debt out of the personal and real estate of his debtor, and not stating that he sues "on behalf of himself and the other specialty creditors," he can only have a decree for satisfaction out of the personal estate in a due course of administration, and not for satisfaction out of the real estate (x). And so one judgment-creditor cannot obtain a decree in a suit by himself alone, against the heir of the conusor, for a sale of more than a moiety of the estate (y), though it is otherwise where there are more judgment-creditors than one (z), or when one sues on behalf of himself and the other specialty creditors. 3. Stating Part. The third part of a bill contains the statement of the plaintiff's case. It is in general necessary that the plaintiff's equity should appear in this part, and where a bill, praying an account of the rents and profits of certain premises, merely stated the plaintiff to be entitled as heir-atlaw to a particular individual, and that the defendant was in possession, but suggested that the defendant pretended to claim under a devise, and charged that if any such existed, the testator was insane at the time, &c.; the Court of Exchequer, upon demurrer, held the bill to be bad, because the stating part showed merely a case at law, and the only equity consisted in the pretences, and charges in answer to those pretences, whereas there ought first to have been an equitable case averred, and then the pretences and charges would have been properly introduced to support it (a). With respect to the manner in which the plaintiff's case should be presented to the Court, it is to be observed, that whatever is essential to the rights of the plaintiff, and is necessarily within his knowledge, ought to be alleged posi (x) Bedford v. Leigh, 2 Dick. 708; Johnson v. Compton, 4 Sim. 47. If, however, a defect of this description appear at the hearing, the Court will allow the case to stand over, with liberty to the plaintiff to amend. Ibid. Biscoe v. Waring, Rolls, 7 Aug. 1835, MS. (y) Stileman v. Ashdown, 2 Atk. VOL. I 477, 608, 610; 1 Amb. 13; S. C. H H (z) Burroughs v. Elton, supra. Names of Stating part. Plaintiff's equity must appear in the stating part. Facts must be alleged posi tively; Stating part. unless they are which a disco very is to be sought. tively (b); and it has been determined upon demurrer, that it is not a sufficient averment of a fact, in a bill, to state that a plaintiff is so informed "(c). The claims of a defendant may be stated in general terms, those respecting and if a matter essential to the determination of the plaintiff's claim is charged to rest within the knowledge of a defendant, or must of necessity be within his knowledge, and is consequently the subject of a part of the discovery sought by the bill, a precise allegation is not required. Sufficient how ever must be averred to found a decree. How far technical expressions should be used. In general, however, a plaintiff must state upon his bill, a case upon which, if admitted by the answer, or proved at the hearing, the Court could make a decree; and therefore where a bill was filed to restrain a defendant from setting up outstanding terms in bar of the plaintiff's right at law, not stating that there were any outstanding terms or estates, but merely alleging that the defendant threatened to set up some outstanding terms, or other legal estate, the Vice-Chancellor allowed a demurrer, his Honor being of opinion that a plaintiff who seeks to restrain a defendant from setting up an outstanding term or estate, ought to state in his bill what sort of a term or estate it is (d). Although the rules of pleading in courts of equity, especially in the case of bills, are not so strict as those adopted in courts of law, yet, in framing pleadings in equity, the draftsman will do well to adhere as closely as he can to the general rules laid down in the books which treat of common law pleadings, whenever such rules are applicable to the case which he is called upon to present to the Court; "for there can be no doubt that the stated forms of description and allegation, which are adopted in pleadings at law, have all been duly debated under every possible consideration, and settled upon solemn deliberation, and that having been established by long usage, experience has shown them to be preferable to all others for conveying distinct and clear notions of the subject to be submitted to the Court," and if this be so at law, there appears to (b) Lord Red. 33. (c) Lord Uxbridge v. Staveland, 1 Ves. 56. (d) Stansbury v. Arkwright, 6 Sim. 481. Vide etiam, Jones v. Possession of a Words to enlarge meaning. be no reason why they should not be considered as equally Stating part. applicable to pleadings in courts of equity, in cases where the object of the pleader is to convey the same meaning as that affixed to the same terms in the ordinary courts. Thus as at law, Seising in fee, if a man intends to allege a title in himself to the inheritance how alleged. or freehold of lands or tenements in possession, he ought regularly to say that he is seised; or if he allege possession of a term of years, or other chattel real, that he is possessed (e); if he allege seisin of things manurable, as of lands, tenements, rents, &c. he should say that he was seised in his demesne as of fee; and if of things not manurable, as of an advowson, he should allege that he is seised as of fee and right, omitting his demesne (ƒ); so there seems to be no reason why the same forms of expression should not be equally proper in stating the same estates in equity. It is indeed the general practice in all well-drawn pleadings to insert them, although they are frequently accompanied with other words, which are sometimes added by way of enlarging their meaning and of extending them to other than mere legal estates, or for the purpose of laying the ground for interrogatories to be put to the defendant in a subsequent part of the bill. Thus in stating a seisin in fee, the ordinary legal form is generally adhered to, with the addition of the words or otherwise well entitled unto," &c. The addition of these words to the averment of an estate in fee simple, formed the subject of discussion in the case of Baring v. Nash (g). The bill there was filed for a partition, and the plaintiff claimed one undivided tenth of the property under a term of 500 years, (which had been assigned to him,) and alleged that the defendant was seised in fee simple, or otherwise well entitled to seven other tenth parts. To this bill the defendant demurred; and one of the grounds of demurrer was, that it was not stated, with sufficient certainty, what estate the defendant had in the seven tenth parts of the property, of which he was alleged in the bill to be seised in fee-simple, or otherwise well entitled unto; and although the Vice-Chancellor (Sir T. Plumer), held that the demurrer was not well (e) 1 Tidd. 41. (f) Ibid. (g) 1 V. & B. 551. Stating part. Technical expressions not absolutely necessary. Legal effect only of deeds should be stated. founded, because the plaintiff, having, as he was bound to do, stated his own interest with precision, could not be supposed so cognizant of the nature of the defendant's interest, which he stated therefore in the way he had, and called for a discovery of the extent of it;" yet the inference to be drawn from the case seems to be, that where precision is necessary in stating a seisin in fee-simple, the introduction. of the words, or otherwise well entitled unto, would render it too uncertain, unless with addition of such words as would have the effect of extending it to an estate in fee. In recommending the use, in pleadings in equity, of such technical expressions as have been adopted in pleadings at common law, it is not intended to suggest that in equity the use of any particular form of words is absolutely necessary, or that the same thing may not be expressed in any terms which the draftsman may select as proper to convey his meaning, provided they are adequate for that purpose, all that is contended for is, that notwithstanding the looseness with which pleadings in a court of equity may, consistently with the principles of those courts, be worded, yet, where it is intended to express things for which adequate legal or technical expressions have been adopted in pleadings at law, the use of such expressions will be desirable, as best conducing to that brevity and clearness which appear formerly to have belonged to pleadings in equity, and which it has been the object of several orders of the Court to restore and enforce (h). Assuming, therefore, that even in pleadings in equity the same form of words as are used in pleadings at law may generally be introduced with advantage, the readers attention will here be directed to some of the rules adopted in legal pleadings, which may with good effect be adopted in equity. Thus it is a rule in pleading at common law that the nature of a conveyance or alienation should be stated according to its legal effect, rather than its form of words (i). Therefore in plead ing a conveyance for life with livery of seisin, the proper form is to allege it as a demise for life, for such is its effect in (h) Beames's Ord. 27. 79. 166. (i) Stephen on Pleading, 311. proper legal description. So a conveyance in tail is, on the same principle, always pleaded as a gift in tail, and a conveyance of the fee with livery, is described by the word enfeoffed; and such would be the form of pleading whatever might be the words of donation used in the instrument itself, which in all the three cases are frequently the same (k). So in a conveyance by lease and release, though the words of the deel of release be" grant, bargain, sell, alien, release and confirm," yet it should be pleaded as a release only, for that is its legal effect. Likewise a surrender (whatever words are used in the instrument) must be pleaded with a sursum reddidit, which alone, in pleading, describes the operation of a conveyance as a surrender (1). Similar methods of expressing the substance of conveyances should also, whenever it is practicable, be adopted in courts of equity, and this is in substance enjoined by Lord Coventry's order (m), which orders, "that bills, answers, replications and rejoinders be not stuffed with repetitions of deeds or writings in hæc verba but the effect and substance of so much of them only as is pertinent and material to be set down, and that in brief and effectual terms." Stating part. In what cases documents may be set out in hæc verba. It may be observed, however, that although it is desirable, in stating instruments, that the above order should be adhered to, and that the substance only of such instruments as are necessary to be set out should be stated without repeating them in hæc verba, yet cases may arise in which it is convenient to state written documents in their very words. This occurs whenever any question in the cause is likely to turn upon the precise Where question words of the instrument, as in the case of bills filed for the esta- turns upon parblishment of a particular construction of a will which is informally or inartificially worded: in such bills the words, which are the subject of the discussion, ought to be accurately set out, in order more specifically to point the attention of the Court to them. Indeed, wherever informal instruments are insisted or other informal on, upon the construction of which any difficulty is likely to arise, as is frequently the case in agreements reduced into writing by persons who have not been professionally educated, (k) Stephen on Pleading, 311. (4) Ibid. (m) Beames's Ord. 78. etiam, Lord Clarendon's Orders, ibid Vide ticular words in the instrument; as in cases of wills; instruments. |