a case for equitable relief, and, in particular, tending to show the necessity of an injunction being granted, were struck out as surplusage. Though admitting, that there are "actions of legal and equitable cognizance, between which, as heretofore, the constitution and the laws recognize a distinction," (on which point the case has been before cited,) the learned judge considered, nevertheless, that, as regards matters of pleading, that distinction does not exist; that, under the Code, a bare and naked statement of the facts sufficient to ground a title to relief, is all that is admissible: and that nothing more than this can be allowed, even in actions of equitable cognizance, under which head the case itself, (a suit to set aside a trust deed on the ground of fraud,) was clearly to be classified. A number of statements tending to establish such fraud on the part of the persons against whom relief was sought, were accordingly considered to be irrelevant, and an injunction was denied, upon the complaint as it then stood, on the ground that those statements could not properly stand as part of it, but must be separately brought before the court on affidavit, the pleading itself being confined to a simple statement of the facts constituting the cause of action, to the exclusion of collateral or corroborating circumstances. See, also, on this last point, Putnam v. Putnam, 2 C. R. 64. In Floyd v. Dearborn, 2 C. R. 17, a rigid view on the subject is likewise taken; and in Barton v. Sackett, 1 C. R. 96, similar principles were indirectly renounced: but the strongest authority in support of this restricted construction, in Dollner v. Gibson, 3 C. R. 153, 7 L. O. 77, a decision which, if sustained, re-establishes the old system of common law pleading in all its strictness, and sets completely at nought the abolition of the forms of that system, enacted by section 140. The opinion in this case declares, in actual words, that that abolition "in reality amounted to nothing," and lays down as a rule, that, not "the facts constituting the cause of action," as provided by section 142, as those facts actually occurred, but, on the contrary, the legal conclusions derived from those facts, form, not merely the proper, but the only admissible subjects of

averment.

The statement there drawn in question, was one to the effect that a certain sale was made by one Adam Maitland, as agent on behalf of the defendant, instead of averring the sale, as doubtless might have been done, as one to the defendant him

self: and the learned judge granted a motion to strike out all the averments in relation to or connected with Maitland's agency, as immaterial, though, by doing so, the whole cause of action was stricken out. See the same case as hereafter noticed, on the consideration of immaterial or redundant averments; and the measures to be pursued in relation thereto. N. B.-It would appear, from a paragraph in the New-York Herald of 7th March, 1852, that this decision has, in fact, been reversed by the general term; and, though not yet formally reported, it will probably be so before long. In Pattison v. Taylor, 8 Barb. S. C. R. 250, 1 C. R. (N. S.) 174, it was also held, that statements of circumstances tending to establish that a mortgage, sought to be foreclosed, had been long since paid off, were immaterial, and that payment of such mortgage ought to have been pleaded, and the circumstances stated brought forward as evidence in proof of that averment.

The cases last cited are in unquestionable conflict with those in the previous division, and it is submitted in conflict also with the general principle of the Code itself. The spirit of that measure unquestionably is to do away with all technical rules, as such--a spirit especially evidenced by sec. 159, which provides that, in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties. See also, sec. 176, to a similar effect. The measure, taken as a whole, is one of a remedial, and not of a restrictive nature, and ought to be so construed; and wherever any doubt exists as to its proper construction, the preponderance ought to be in favor of enlarging, rather than derogating from the remedial provisions it contains. Construing it in this spirit, a plaintiff or defendant ought, within reasonable limits, to be allowed the privilege of stating his case in whatever manner he may chose, provided he comply with the general requisites prescribed. So far indeed from any tendency to contract the rules of equitable pleading, and to bind down the mode of averment in equitable cases by the strict and rigid forms of the common law, being evidenced; a directly contrary spirit is manifested by the positive intention to abolish those forms altogether, as expressed in the preamble, (in which those in Equity are not even alluded to); and by the fact that, in the body of the act, the usual course of equity pleading is prescribed, and the very names of equity

pleadings adopted without alteration, except in the mere substitution of the term "complaint" for the term "bill."

The principles laid down in the four cases last cited, are unquestionably, if sustained to their full extent, a complete abolition of all equitable pleading whatever, and amount to a declaration that the most rigid rules of averment, according to the spirit of the old common law system, are still enforceable in all their pristine strictness, in all cases, whether of legal or equitable origin.

This species of interpretation, especially as carried out in the two last cases, seems also to militate irreconcilably with another important class of decisions, which lay down, in distinct terms, the principle that, under the Code, the actual facts of the case form, and form alone, the proper subjects of pleading, and that conclusions of law, as such, are not admissible at all, and, if standing alone, will neither suffice to establish a cause of action, nor to constitute a defence.

Thus in Beers v. Squire, 1 C. R. 84, a mere denial of indebtedness, equivalent to the old plea of nil debet, unaccompanied by any allegation of facts, was held to be no defence at all to an action on a promissory note, and the answer was accordingly stricken out as frivolous, and judgment awarded on a motion for that purpose. In Pierson v. Cooley, 1 C. R. 91; and McMurray v. Gifford, 5 How. 14, the same point was decided; and similar views are expressed in Mier v. Cartledge, 4 How. 115; 2 C. R. 125. In Mullen v. Kearney, 2 C. R. 18, though no facts are given, the same principle is applied to all cases, in the following words, i. e., "An answer which admits all the facts on which the plaintiff's cause of action is founded, and merely denies generally that the plaintiff has a cause of action, is frivolous, and will be stricken out."

In Bentley v. Jones, 4 How. 202, a mere denial of interest in the premises there in controversy, without stating facts to disprove specific allegations showing that such an interest existed, was again held to be bad "because it did not involve a traversable fact, but merely a conclusion of law." In Russell v. Clapp, 4 How. 347; 7 Barb. S. C. R. 482; 3 C. R. 64; Glenny v. Hitchins, 4 How. 98; Tucker v. Rushton, 2 C. R. 59; 7 L. O. 315; Neefus v. Kloppenburgh, 2 C. R. 76; Stewart v. Bouton, 6 How. 71; 9 L. O. 353; and Eno v. Woodworth, 4 Comst. 249; 1 C. R. (N. S.) 262, the same positions are fully sus

tained. The point, therefore, that mere conclusions of law are not admissible as matters of defensive pleading, appears to be unquestionably established. If not admissible as a defence, it seems to follow, as a necessary conclusion, that averments of this description, standing alone, are not sufficient for the establishment of a cause of action; and that the facts themselves of the case, as they really occurred, and not the legal conclusion to be drawn from them, ought, in all cases, to be pleaded. The circumstance that the party may be obliged, under the new system, to swear to every fact he avers in his pleading, and, though willing to swear to such fact as it actually occurred, might most conscientiously object to swear positively to the conclusion of law to be drawn from it, is also a consideration entitled to its full weight. It seems to follow as a necessary consequence from the foregoing premises, that, what is law with respect to defensive, must be law with respect to aggressive pleading, and that the principle laid down in Dollner v. Gibson, and Pattison v. Taylor, i. e., that the legal conclusion derived from the facts of the case, and not the facts themselves, on which that conclusion is founded, as those facts occurred, ought, and ought alone, to be averred in a complaint, cannot be sound. If not, then, a fortiori, the principle that such facts cannot be pleaded at all in the form in which they really happened, and, if so pleaded, will be actually struck out as irrelevant, seems incapable of standing the test of critical inquiry.

Although, then, the general doctrine of the more liberal cases on the subject of equitable averments, and particularly that laid down in the cases of The Rochester City Bank v. Suydam, Wooden v. Waffle, and Coit v. Coit, appears to be unquestionably preferable; still that doctrine must not be carried too far. A plaintiff seems doubtless at liberty to state an equitable cause of action, in substantially the same manner in which it was formerly stated in a well-drawn bill in chancery, according to the rule laid down in Howard v. Tiffany; but still he is by no means freed from the observance of all rules whatever, in relation to his averments of that cause of action; nor is he at liberty to wander into clearly irrelevant matter, or to introduce, as forming part of those averments, matters not bearing directly upon his title to relief, but merely useful as probative facts in support of that title. Though substantially preserved under the Code, the powers of the pleader in relation to equit

able averments, are not increased by it. They are, on the contrary, lessened in many respects, inasmuch as the abolition of equitable pleading as a means of obtaining discovery, of necessity narrows the field of admissible allegations, and confines them simply to those directly going to establish a cause of action, or a right to relief connected with that cause.

That the substantive facts of the case, and those only, form the only proper subject of averment in all pleading whatever, and especially in pleadings under the peculiar provisions of the Code: and that merely collateral or probative circumstances, not directly tending to establish the cause of action, in common law cases, or to bear upon or modify the relief to be granted, where that relief is equitable or special, are inadmissible in all cases whatever, whether legal or equitable, is a leading feature in every decided case upon the subject, whether taking the stricter or the more liberal view of the general question.

In Boyce v. Brown, 7 Barb. S. C. R. 80, cited at the outset of these observations, the above doctrine is broadly stated. That" issuable facts, essential to the cause of action or defence, and not the facts or circumstances which go to establish such essential facts:" that "facts only, and not the mere evidence of facts," should be stated; are the principles laid down in Shaw v. Jayne, 4 How. 119, and Knowles v. Gee, 4 How. 317. In the recent case of Williams v. Hayes, 5 How. 470, the same views, especially as they are laid down in Knowles v. Gee, are fully concurred in; and the authority of the last case is fully confirmed by The Rensselaer Plank Road Co. v. Wetsel, 6 How. 68; and Stewart v. Bouton, 6 How. 71, 9 L. O. 353. In Howard v. Tiffany, 3 Sandf. S. C. R. 695, 1 C. R. (N. S.) 99, before cited as one of the strongest cases in favor of the liberal doctrine of averment, the same view is adopted, and statements of probative circumstances were ordered to be stricken out. The same principles are' distinctly stated in Milliken v. Cary, 5 How. 272; 3 C. R. 250; Floyd v. Dearborn, 2 C. R. 17; Ingersoll v. Ingersoll, 1 C. R. 102; Dollner v. Gibson, 3 C. R. 153; 7 L. O. 77 (which, on this point, is perfectly in accordance with the other decisions); Russell v. Clapp, 4 How. 347; 7 Barb. S. C. R. 482; 3 C. R. 64; Glenny v. Hitchins, 4 How. 98; Lewis v. Kendall, 6 How, 59; Wooden v. Waffle, 6 How. 145; and numerous other authorities, in which the principle either appears in direct terms, or is collaterally referred to, or acted upon.