IN EQUITY PLEADING WITH SUMMARIES OF DOCTRINE UPON SEVERAL HEADS BY CHARLES A. KEIGWIN "Not clinging to some ancient saw, ROCHESTER, NEW YORK THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY PREFACE. The purpose of the present volume is to afford a collection of cases suitable for a short course of instruction in Equity Pleading. That term is here used in so narrow sense as to exclude divers topics often treated under this title, such as the service of process, references, accounting and like incidents of litigation, which are matters of practice as distinguished from pleading; the subject of parties also is not considered, that being conceived as a branch of substantive law. Such restriction is necessary to accomplish the brevity desired and an effective proposal of the capital concern. Even as thus limited, the material here embodied is probably more than can be made available within the time usually allotted to the subject. Unless, however, other instructors differ greatly in disposition and method from the compiler, none will complain of the eclecticism so made requisite. At any rate, it has seemed wiser to incur the reproach of occasional over-elaboration than the risk of an insufficient presentation. If any features appear to have been unduly developed, the error in respect thereof is attributable to a class-room experience which has shown those matters as offering exceptional embarrassment to the learner and demanding a degree of exposition which is possibly beyond their intrinsic importance. The cases have been freely edited. In many instances the facts are stated by the compiler in his own fashion and with reference to his own purposes, such a statement being substituted for that given by the reporter or to be found in the opinion. This has been done usually for the sake of saving space, sometimes in the hope of facilitating apprehension of the facts. Only so much of an opinion is taken as bears upon the point of pleading in contemplation, except in a few cases where the adjudication seemed of especial value for its bearing upon some subject of collateral interest to the student. Where omissions from the text break the continuity of a passage, the fact is signified by a succession of periods. The summaries which precede the cases on the various subjects do not, as will readily appear, attempt or purport to constitute a treatise on Equity Pleading. They are rather a series of lectures upon the fundamentals of that subject, the topics being those to which an instructor would feel obliged to address himself in the class room. The more important features of the course are presented in brief statement, which admits of much development, the treatment being designedly general, avoiding details, and perhaps occasionally requiring qualification. But few authorities are cited in support of the doctrines propounded, though at frequent points cases are mentioned and shortly stated as exemplifying the various principles under consideration. The endeavor has been to exhibit the pleading used in equity courts of the present time. Several cases adjudged in the year still current will attest attention to contemporary conditions. Further evidence of like effect will be found in the number of cases coming from the Federal courts within the last decade, a number which would be disproportionate but for the importance of exhibiting the operation of recent changes in the Federal Rules. In the transitive conditions of present practice, however, it is at many points difficult to distinguish between principles which have become outworn and those which are still vital, to say how far modern reforms have, universally or in a particular jurisdiction, displaced the landmarks of a prior generation. Quite often, as these cases will show, some dogma of Lord Eldon's time, which might be supposed defunct because almost disused, will crop out unexpectedly in practical application by a decision of to-day. This makes it of doubtful safety to ignore many features of our subject which seem distinctly old fashioned and occur but rarely in ordinary experience. Moreover, even one not temperamentally laudator temporis acti will perceive the impossibility of making intelligible existing institutions without occasional recurrence to the things of yesteryear. The improvements of our day cannot be appreciated except by an understanding of the modes which are superseded. It has therefore seemed necessary in the development of the subject, both in the cases and in the lectures, to start with that system of pleading which was learned by practitioners not yet beyond middle age, to assume its philosophy as still of force and its scheme as the norm to which recent reforms must be referred. The effort has been to present the theory of that system, |