Hood v. Inman

The Chancellor.

1. It was not necessary to set forth the power of attorney in kcec verba, in the answer. The substance of it was accurately stated in the bill, and to give it at length in the answer, was impertinent. Impertinence consists (1 Harr. Pr. 101. 303.) in setting forth what is not necessary to be set forth, as where the pleading'^ are stuffed with long recitals, or with long digressions of matters of fact which are totally immaterial. An .answer, or a bill, ought not, ordinarily, to set forth deeds in kcec Verba; and if the pleader sets forth only so much thereof as is material to the point in question, i/As sufficient. They evidence to be showri at large, at the hearing. In Alsager v. Johnson, (4 Ves. 217.) a bill of costs was given at large in the schedule to the answer, when a reference to the bill of costs delivered would have fully angwered the purpose, and it was deemed impertinent. The present case is not an instance of gross abuse of this rule of pleading; but I am glad to see the exception taken, and the point brought up, for the opportunity it affords of laying down the rule. I have frequently perceived the pleadings, and particularly the bill, incumbered with a recital, in Jicec verba, of deeds, mortgages, and other documents, which, unless checked, will lead to great oppression of the suitor, and to the reproach of the Court. Whenever a proper case arises, I shall certainly mark it with animadversion; and shall endeavour to enforce, by all suitable means, precision and brevity in pleading. The objection to unnecessary may be taken on the taxation of costs.

The ancient rules and orders of the English Court of Chancery, are very explicit, and powerfully monitory this subject.

If any pleading should be found, of an immoderate length, Lord Bacon declared, that both the party and the counsel under whose hand it passed, should be fined. And Lord Keeper Coventry, with ¿he advice of Sir Julius Casar, the Master of the Broils, in 1635, ordained, that bills, answers, &c. “ should,-hot be stuffed with the repetitions of deeds or writings inf hac verba, but the effect and substance of so much of,-them only as was pertinent and material to be set down, Ejind that in brief and effectual terms, &c., and upon any dic'ault therein, the party and counsel under whose hand 'it passed, should pay the charge of the copy, and be furt ?.ier punished as the case should merit.’’

T'he same rule was, afterwards, adopted, or re-enacted, y by/ the Lords Commissioners in 1649, and in Lord Clarendu,ii!s Digest or System of Rules, (Beame’s Orders, 25. 165.

Eat we have a domestic precedent on this point, which ■Is too interesting to be unnoticed.

1In 1727, Governor Burnet, of the colony of New-York, n'ercising, in council, the powers of a Court of Chancery, appointed five of the most distinguished counsel of the Court, as a committee, “ to consider and report on the fees and dilatory proceedings in the Court of Chancery, as true and great grievances.” This committee, consisting of Archibald Kennedy, Rip Van Dam, Cadwallader Colden, James Alexander, and Abraham Van Horn, reported to the council a number of abuses in the practice of the Court of Chancery, and the remedy. This report, which is inserted at the end of jBradford’s edition of the Colony Laws, is a curious and instructive document; but my concern, at present, is only with what is termed the first abuse and remedy. " It declares, “ as an abuse, the inserting, at too much length, in bills, matters of inducement only. Thus, if A. has been entitled to the thing in question, who conveyed it to B., who conveyed it to C., who conveyed it to the plaintiff; after the thing is certainly set forth in A., it is enough to say, he conveyed it to B., and he. to C., and he to the plaintiff, as by the .deeds ready to be produced, will appear.” JVb counsel, say they, ought to set their'hands to any bill that is unduly long, and if he does, he ought tc\pay all the charges arising from such needless length. \

The exception to the Master’s Report, allowing this first exception, is overruled. \

2. The same objection applies to the matter forming the ground of the second exception. It was matter argumentative, rhetorical, irrelative, and, consequently, impertinent. Pleadings should consist of averments, or allegations off fact, and not of inference and argument. X

The exception to the report is, also, overruled; and as the fault of the pleader was of a venial character, I am content that the costs of the exceptions, in this particular case, shomld abide the event of the suit. Í

Order accordingly. |