Jerome v. Jerome

Hosmer, Ch. J. The plaintiff’s bill must be adjudged by its conformity "to the rules and usages in chancery proceedings;" for this is the expression of the statute, p. 197. An affidavit, by our practice, is not required to be annexed to a bill in chancery, in any case. The title of the plaintiff ought to be set forth plainly, yet succinctly, and that with all necessary and convenient certainty as to the material facts, and as to the time, place, manner, and other incidents. Coop. Eq. Plead, 5, 131. Now, in this case, deficient as the bill is, in alleging the place, where the deed in question was executed, it is more strikingly so, in not having disclosed any title to the premises. The deed, it is said, conveyed a piece of land to the plaintiff, of which a life estate was leased to the grantor; but what species of estate and quantity of interest were granted? Was the deed absolute, or conditional? Did it convey an estate for life, in fee-tail, or in fee-simple? On these indispensible subjects the bill is silent ; and if the court should assume, that even an estate for life was granted, it would outrun the plaintiff’s allegations. The bill, therefore, is defective, both as to the matter of the plaintiff's title, and the manner of alleging it. It is a general rule, that a bill must show some interest in the defendant ; for otherwise, the plaintiff can have no decree against him ; and a suit making him a party is both nugatory and vexations. Coop. Eq. Plead. 177. and cases there cited. From the plaintiff’s allegations, it does not appear, that the defendants have any interest in the subject matter of his bill; and that even the party in interest is brought before the court, there no ground to affirm. That the bill is not legally sustainable, cannot be questioned, as it unites distinct subjects, which cannot be joined in the same application. It is a bill for the perpetuation of testimony and for relief. These subjects are perfectly distinct, in their features, in the grounds upon which they may be sustained, and in their final causes; and it is an unquestionable rule, that they cannot be united in the same bill. Coop. Eq. Plead. 52. Vaughan v. Fitzgerald, 1 Scho. & Lef. 316. Rose v. Gannel, 3 Atk. 439. The decree of the court below, was undoubtedly final, and [357] not interlocutory ; and against the errors committed, a writ of error is the legal and only remedy. The suggestion, that the decree cured the errors in the case, is obviously without any force ; for the defective allegations of the bill are incurable in their nature; and if otherwise, they could not be cured, by a decision legally erroneous. Peters, J., was of the same opinion, with respect to the defects in the bill ; but he doubted whether this proceeding was properly the subject of a writ of error. Brainard and Bristol, Js. concurred fully with the Chief Justice. Judgment reversed.