COMMENTARIES

ON

EQUITY PLEADINGS.

CHAPTER I.

INTRODUCTORY CHAPTER.

§ 1. HAVING in a former work treated of the nature, origin, and extent of Equity Jurisprudence, as administered in England and America, and of the principles by which the jurisdiction in Equity is governed and limited, the path is now open for us to direct our inquiries into the forms and modes, in which this remedial justice is applied to the actual business and concerns of human life, in order to protect and vindicate rights, or to prevent and redress wrongs. It is obvious, that, in every system of jurisprudence, professing to provide for the due administration of public justice, 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. And, for the sake of the despatch of business, as well as for its due arrangement with reference to the rights and convenience of all the suitors, many regulations must be adopted, to induce certainty, order, accuracy, and uniformity in these proceedings. Hence it will be found, that the jurispru

dence of every civilized country, ancient and modern, has established certain modes, in which the complaints and defences of parties are to be brought before the public tribunals; and has authorized the latter, by rules and orders, to prescribe the time, the manner, and the circumstances, in which every suit is to proceed, from its first institution to its final determination.

§ 2. This is emphatically true in the jurisprudence of England and America; and is not only exemplified in the proceedings in suits at Common Law, but in those also, which are governed by the larger and more liberal doctrines of Equity. Indeed, in the latter, as well as in the former, there are many rules altogether founded in artificial reasoning, but which, nevertheless, may be affirmed, with few exceptions, to be greatly promotive of public justice, and subservient to private convenience. If, here and there, any of them work an apparent hardship or mischief, it will, on close examination, be found, that they also accomplish much general and permanent good; and in this respect they partake only of the infirmity of all general rules, which must, in particular cases, give rise to some inequalities, and shut out some individual equities and rights.

§ 3. The design of the present Commentaries is to present a general, but, at the same time, an accurate, outline of the proceedings in Courts of Equity from the original institution of a suit to its close, and to accompany the same with such explanations and illustrations, as may serve to develope the principles, on which they are founded, and the reasons, by which they are sustained. It will not, indeed, be possible, in all cases, to ascertain these principles and reasons; for they are sometimes lost in remote antiquity, and sometimes they depend upon rules of such a purely artificial character, although arising from the exercise of

a sound discretion, as to be incapable of any very satisfactory exposition.

§ 4. The subject naturally divides itself in two great heads, the Pleadings in framing a suit in Equity, and the Practice in conducting a suit in Equity. By the Pleadings we are to understand the written allegations of the respective parties in the suit, that is to say, the written statement of the plaintiff, 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 defence of the defendant to the charges of the plaintiff, either denying them altogether, or admitting them, and relying on some other matters, as a bar to the suit, or admitting them, and insisting upon the want of title in the plaintiff to the relief sought, or to the interposition or aid of the Court; and the written reply thereto by the plaintiff. By the Practice in a suit in Equity we are to understand all the various proceedings in the suit, whether by the positive rules, or the usage of the

1 In Bacon's Abridgment, title, Pleas and Pleading, it is said, that "Pleading in general signifies the allegations of parties to suits, when they are put into a proper, legal form." And again, "Pleading, in strictness, is no more than setting forth that fact, which in law shows the justice of the demand made by the plaintiff, or the discharge and defence made by the defendant." Mr. Justice Buller has given a definition, which has equal terseness and accuracy. "Pleading," says he, "is the formal mode of alleging that on the record, which would be the support or defence of the party on evidence." Read v. Brookman, 3 T. R. 159. Each of these definitions is equally as applicable to pleadings in Equity, as to pleadings at Law. But it may serve to make the real nature of pleadings in Equity, in a technical sense, better known, to state, that they consist of the formal, written allegations or statements of the respective parties on the record to maintain the suit, or to defeat it, of which, when contested in matters of fact, they propose to offer proofs, and in matters of law to offer arguments, to the Court. In a popular sense, the oral arguments of counsel, and especially their addresses to juries or to the Court, are often called pleadings. But this is not the true, legal sense.

Court, and whether interlocutory or otherwise, which may become necessary or proper for the due conduct thereof from the beginning to the final determination thereof.

§ 5. Although, in a general sense, the distinction between the pleadings and the practice in a suit is sufficiently obvious from the foregoing description of their respective characters and objects; yet it is not easy, even if it be practicable, wholly to separate the considerations belonging to the one from those belonging to the other. The principles, which regulate the pleadings, are sometimes so intimately connected with the practice of the Court, as to the time, the manner, and the circumstances, which affect their introduction and use, that any discussion of the former without adverting to the latter would be very deficient in the appropriate details, and imperfect in the just expositions belonging to the subject. Thus, for example, it is the proper office of pleading to ascertain, what facts should be charged in the plaintiff's statement of his case; but, if the facts are imperfectly stated, the time, and manner, and circumstances, in which the plaintiff will be permitted to make a more perfect statement of his case, by way of amendment, properly belong to the practice of the Court. But a treatise, which should embrace the subject of the amendment of pleadings, without adverting to the time, the manner, and circumstances, under which such amendment could be made, would be manifestly defective in its most important details.

§ 6. In the present Commentaries, therefore, matters of practice, when mixed up with matters of pleading, will be occasionally introduced, whenever they may serve better to explain the particular topic under consideration. In other respects, these subjects will