Belknap v. Stone ( 1861 )

Chapman, J.

It is objected that the plaintiff is not.entitled to recover, because he has brought his suit by petition and not by bill. The St. of 1851, c. 206, requires that the proceeding shall be by bill. The institution of suits in equity by petition seems to have been first mentioned in the insolvency act of. 1838, c. 163. By St. 1855, c. 194, § 2, it is provided that, when relief is sought in equity, the material facts and circumstances relied on shall be stated with brevity, omitting all immaterial and irrelevant matter, either in the form of a bill or petition to the court, or in a declaration in an action of contract. By St. 1856, c. 38, this provision is repealed, and suits in equity are required to be commenced by bill or writ of attachment. It is not clear what was the distinction contemplated by the legislature between a bill and a petition. In chancery proceedings, a petition is usually an interlocutory proceeding for an order of course, or some special matter, or sometimes for a collateral purpose. The service, proceedings and orders upon it are less formal than upon a bill. On inspection of the record in this case, we find what must be regarded as a bill, though it is loose and imperfect. It is addressed to the court, and sets forth the debt of the defendant Stone; the plaintiff’s inability to find property that can be reached by process of attachment; the judgment of Stone against Perrin, and the intention of Stone to collect the judgment. It prays for relief generally; and also prays specially for an injunction, and for a decree that the amount of his debt may be paid to him. It contains the usual signature of the plaintiff and his solicitor. But the statement of the plaintiff’s case is not very explicit, and the conclusion is not such as the fourth rule of court requires. Nor is there any distinct prayer for process.

The defendants have answered to the bill, and have omitted to notice such defects of form as they might have taken advantage of on demurrer, or by answer, according to the twenty-eighth rule. And their appearance is a waiver of defects in respect to the process and the prayer for process. The bill is not so defective as to be void ; but sets forth so much that it may be amended and put in the technical form of a bill in equity, conformably to our statutes and rules of court. Upon the plaintiff’s payment of the costs of the defendant Adams to this time, he has leave to amend his bill; and he will thereupon be entitled to a decree in his favor, for the reasons stated in the ease of Rice against these defendants, ante, 566.