civil law, nor in chancery, in all of which the courts ascertained the questions at issue from all the pleadings in the case. Pleadings in equity were based upon the civil law. The early chancellors were generally dignitaries in the church, and hence, familiar with the Roman or civil law. Originally the petition or bill concisely stated the facts on which the petitioner based his right of recovery, and prayed for the relief sought. As wealth increased among the people and new questions arose, changes in pleading occurred, and more technical modes of stating a cause of action came into use. The fact that there was but one court of chancery in England, naturally restricted the practice in that court to a few solicitors, whose interest it was to render pleadings as complex and technical as possible. There was only one form of bill, however, whatever the relief sought. This will be particularly described hereafter, but it contained the names of the plaintiff and defendant, stated the facts on which the plaintiff sought redress, together with an appropriate prayer for relief and for a subpœna. Bills of discovery. As under the common law a person who had an interest in the matter in controversy could not testify as a witness in the case, it became necessary, in order to prevent a failure of justice, in many cases, to require the defendant to answer certain questions under oath, hence an important branch of equity practice was to obtain a discovery of evidence. To effect this purpose the plaintiff was permitted to state not only the facts constituting his cause of action, but the evidence and circumstances tending to establish the same. Questions were put in every conceivable form, so that there should be no evasion in the answers. Thus, the pleadings necessarily contained a statement of the complainant's cause of action and the defense of the defendant, and also the proof to establish or disprove the charge; hence the importance of a sworn answer. An answer which is responsive to the allegations and charges made in the bill, and contains clear and positive denials thereof must prevail, unless it is overcome by the testimony of two witnesses to the substantial facts, or at least one witness and other attendant circumstances which supply the want of another witness, and thus destroy the statements of the answer or demonstrate its incredibility or insufficiency as evidence. 1 Subject to demurrer. If the bill was defective in its frame or a statement of the cause of action was not sufficient to give the court jurisdiction or to entitle the complainant to the relief sought, the defendant might demur for the particular defect complained of. If the objection did not appear on the face of the bill, then it was the right of the defendant to point it out, in either a plea or answer. Plea available. If the objection consisted of but a a single point, as for want of proper parties, plaintiff or defendant, or to the jurisdiction of the court, then a plea was available, 2 otherwise an answer was filed. Answer in chancery. In the answer the defendant either confessed and avoided or denied the several parts of the bill, or stated facts which constituted a defense. In the answer the defendant might interpose any number of defenses, the only condition being that they should be consistent with each other. 8 The answer was required to be full and perfect to all the material allegations of the bill. It must confess, avoid, deny or traverse all the material parts of the bill. It must state facts and not arguments. It was not sufficient that it contained a general denial of the matters charged, but there must be an answer to the sifting inquiries upon the general subject. It must also be certain in its allegations, as far as possible. To so much of the bill as it was necessary and material for the defendant to answer, he was required to speak directly and without evasion.4 13 Greenl. Ev. § 289; Daniel v. Mitchell, Story, 172; Lenox v. Prout, 3 Wheat. 520. Under the code the verification of a pleading adds no weight to it as evidence, and as the parties to the suit may be sworn and examined as witnesses a bill of discovery is ordinarily unnecessary. 21 Dan. Ch. Pr. (4th ed.) 603; 1 Barb. Ch. Pr. 114. 3 Dan. Ch. Pr. (4th ed.) 713; I Barb. Ch. Pr. 130; Sto. Eq. Pl. § 851. 4 Sto. Eq. Pl. § 851. The neces. sity for this strictness in answering questions is seen in Hepburn v. Durand, I Bro. Ch. 503, where Durand in his answers swore that he had not received any money whatever, except as set forth in the schedule attached to his answer, which did not contain the item complained of. On exceptions being sustained to his answer, and a more definite statement required, Durand admitted that he had received the sums claimed. Answer in support of plea In some cases the defendant found it necessary to answer in support of a plea, as where it was doubtful whether a plea alone would be sustained, or the defense consisted of a variety of circumstances which, taken together, would bar the suit or protect the defendant. In such cases the defendant in connection with his plea, could set forth the whole matter of defense in an answer.1 Replication. The last pleading of the complainant was the replication to the defendant's answer or plea. It was the plaintiff's plea in avoidance or denial of the answer or defense and in the maintenance of the bill to draw the matter to a direct issue. After the plaintiff had replied to the defendant's answer or plea, he could not then go back to except to it for insufficiency, because by filing the replication he had admitted the plea or answer to be sufficient, however imperfect it might be, 2 The late practice, however, seems to be to permit the plaintiff in certain cases to withdraw his replication upon paying costs. which have been incurred. 3 Judge Story, after referring to the simplicity of early bills in chancery, says: "Equity pleading has, indeed, now become a science of great complexity, and a very refined species of logic, which it requires great talents to master in all its various distinctions and subtle contrivances, and to apply it, with sound discretion and judgment, to all the diversities of professional practice. The ability to understand what is the appropriate remedy and relief for the case; to shape the bill fully, accurately and neatly, without deforming it by loose and immaterial allegations or loading it with superfluous details, and to decide who are the proper and necessary parties to the suit -the ability to do all this requires various talents, long experience, vast learning and a clearness and, acuteness of perception which belong only to very gifted minds. "Without these, diligence and industry will not always insure success; although it may be as truly said that, without 1 Sto. Eq. Pl. § 851. * Coop. Eq. Pl. 328–9; Sto. Eq. PL § 877. 3 Sto. Eq. Pl. § 877. Coop. Eq. Pl. 528-9. See Coop. Eq. PL 4. the latter also, genius, however high, will find itself outstripped in the race, and be compelled to pay homage to inferior minds, who may win an easy triumph by steady perseverance against the bold, but irregular, sallies of less wary adversaries." 1 1 Sto. Eq. Pl. § 13. CHAPTER II. GENERAL CHANGES MADE BY THE CODE. Distinctions abolished. Section 69 of the code of New York declared that "The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished, and there shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." This provision has been substantially adopted in all the code states, although in Arkansas, Iowa, Kentucky and Oregon proceedings in equity are kept distinct from actions at law. 1 The same form of allegation. The New York Commissioners, in their report on the code, say in regard to the change: "We propose to reduce the system of pleading to one of allegation merely, without reference to discovery, in the mode which will presently be suggested, so that the same form of allegation may be adapted to cases which have heretofore been distinguished as legal and equitable. "2 A uniform system. The object was to provide a uniform system, and to furnish one set of rules to govern every class of actions, or, as was said by Judge Gardener: "The legislature sought to accomplish the object indicated in the preamble by abolishing the formal distinctions between law and equity. They were to be blended and formed into a single system which should combine the principles peculiar to each, and be administered thereafter through the same forms and under the same appellation." Legal and equitable remedies but one form of action. The code has abolished the distinction between suits in 1 Bliss Code Pl. § 4, 5. 'Moak Van S. Pl. 28. 3 Giles v. Lyon, 4 N. Y. 600. 1 |