§ 1285. Prayer.- Under the general prayer in a bill in chancery, other relief than that particularly prayed for may be granted, if agreeable to the case made by the bill, but not otherwise. English v. Foxhall, 2 Pet., 595.

§ 1286. Under a prayer for general relief in a bill in chancery, the court will grant such relief only as the case stated in the bill and the proof justify. Hobson v. M'Arthur, 16 Pet., 182. § 1287. No relief can be granted under a general prayer except such as is agreeable to the case made by the bill; but if the objects of the bill can be seen, relief will be granted under such prayer in spite of a want of absolute directness and distinctness in the allegations and interrogatories. Texas v. Hardenberg, 10 Wall., 68.

§ 1288. A prayer for general relief is a prayer for any relief the court can give, except injunction, upon the facts averred in the bill. Railroad Co. v. Macomb, 2 Fed: R., 18.

§ 1289. If the plaintiff mistakes the relief to which he is entitled in his special prayer, the court may yet afford him the relief to which he has a right under the prayer of general relief, provided it is such relief as is agreeable to the case made by the bill. ell, 2 Woods, 483.

Moore v. Mitch

§ 1290. Where the bill seeks to correct a mistake and reform an instrument the allegations must be most particular, and the bill must conclude with a prayer for a correction of the mistake and a decree according to the reformed instrument. United States v. Munroe, 5 Mason, 572.

§ 1291. An account of profits may be decreed to the owner of a copyright as incidental to the relief by injunction, but it must be prayed for in the bill. Stevens v. Cady, 2 Curt., 200. § 1292. A court of equity cannot act on a case which is not fairly made out by the bill and answer. But it is not necessary that these should point out in detail the means which the court shall adopt in giving relief. Under the general prayer for relief the court will often extend relief beyond the specific prayer, and not exactly in accordance with it. Walden v. Bodley, 14 Pet., 156.

§ 1293. Interrogatories.

Under the fortieth rule of the federal practice the defendant is not bound to answer unless special interrogatories be put in the bill. Such a bill is clearly demurrable. Treadwell v. Cleaveland, 3 McL., 283.

§ 1294. A bill requiring an answer must, under the rules of the United States supreme court, contain interrogatories. Wilson v. Stolley, 4 McL., 272.

§ 1295. Where discovery is the object, or the principal object, distinct interrogatories should be affixed to the bill. Parsons v. Cumming,* 1 Woods, 463.

§ 1296. Under the ninety-third equity rule, rendering it unnecessary to interrogate a defendant specially to obtain a discovery, a bill may be a bill for a discovery without an allegation that a discovery is necessary, or special interrogatories, and complainant may have an answer under oath under his prayer. Perry v. Corning, 6 Blatch., 134.

§ 1297. Interrogatories by plaintiff are not framed upon the theory that everything appearing in the bill is true, strictly and in detail. The possibility of plaintiff's misinformation may be taken into account. Interrogatories are proper if they touch with sufficient directness the subject-matter of the suit. Railroad Co. v. Macomb, 2 Fed. R., 18.

§ 1298. Where the question of notice is material, and the bill charges the defendant with notice, he is bound to answer without a special interrogatory. He is not bound to answer irrelevant interrogatories. Mechanics' Bank of Alexandria v. Lynn, 1 Pet., 376.

1299. Laches.-A complainant seeking to enforce a stale claim in equity should set forth in his bill what were the impediments to an earlier prosecution of his claim; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill. Badger v. Badger, 2 Wall., 87. See LIMITATIONS.

§ 1300. A bill for an account, after a great lapse of time, should state the reason why it was not brought sooner, so as to repel the presumption of laches. If the case turns upon fraud, mistake or concealment, it should be stated what this was, and how brought about. The charges must be reasonable, definite and certain as to time and occasion and subject-matter. Especially must there be distinct averments as to when and how the fraud, etc., was discovered; for if by ordinary diligence the discovery might have been before made, the bill has no standing on account of laches. Stearns v. Page,* 1 Story, 204.

§ 1301. The question whether or not a bill is bad for laches depends upon the circumstances of the case. A bill is not defective in this respect which charges a fraud committed ten years previously, but only discovered by plaintiff within a year. Forbes v. Overby,* 4 Hughes,

441.

§ 1302. A delay of five years in bringing a bill to vacate a decree in a former suit on account of fraud must be satisfactorily explained, and the time when knowledge of the fraud was discovered set forth. Harwood v. Railroad Co., 17 Wall., 78.

§ 1303. If a bill to rescind a deed is filed after a considerable lapse of time, and the exer

cise by the plaintiff of the powers of an owner over the property, so as to change its character or value materially, the bill must state sufficient reasons for the delay, and those reasons must be made out in the proof. Fisher v. Boody, 1 Curt., 206.

§ 1304. Though lapse of time be not pleaded as a bar, the judgment of the court will be influenced by delay, not accounted for, when the bill seeks to rescind a sale. Ibid.

§ 1305. Multifariousness. A bill cannot be sustained in equity which is multifarious and embraces distinct matters, affecting distinct parties, who have no common interest in the distinct matters. West v. Randall, 2 Mason, 181.

§ 1306. By multifariousness is meant improperly joining in one bill independent matters and thereby confounding them, as by uniting distinct and unconnected matters against one defendant, or by demanding several such matters against several defendants in the same bill. A prayer for alternative relief, however, never makes a bill multifarious. Kilgour v. New Orleans Gas Light Co., 2 Woods, 144; Haines v. Carpenter, 1 Woods, 262.

§ 1307. A bill is not multifarious where it does not unite titles which have no analogy to each other, whereby the defendant's litigation and costs are increased. Turner v. The American Baptist Missionary Union, 5 McL., 344.

§ 1308. Two inconsistent causes for relief must not be united in a single bill, although a bill may be framed with a double aspect and alternative relief be demanded, if neither relief is inconsistent with a state of facts conceded by the bill. Wilkinson v. Dobbie, 12 Blatch., 298. § 1309. Equity permits the joinder of several causes of action in one bill, provided such joinder does not embarrass the defendant or introduce unnecessary confusion into the cause. Herman Patent Mfg. Co. v. Brooklyn City R. R. Co., 15 Blatch., 444.

§ 1310. There is no absolute rule on the subject of multifariousness of a bill in equity. The decisions are contradictory, and each case depends chiefly on its own facts. M'Lean v. Lafayette Bank, 3 McL., 415.

§ 1311. Courts of equity do not allow a multifarious bill as a remedy for a multiplicity of suits, and a bill which unites a controversy as to the validity of certain bequests in a will with a claim of the heirs of the husband of the testatrix to the property as not passing by the will, and with a suit of a creditor of the succession to recover judgment against the estate, and with a demand for an executor's account, is multifarious. Haines v. Carpenter, 1 Woods, 262. § 1312. A bill which by the accepted canons of equity pleading would be bad on demurrer for multifariousness, both as to subjects and parties, cannot be objected to on that account, if these defects arise from conformity with an act of congress directing such a bill to be filed in a federal court. United States v. Union Pacific R. Co., 8 Otto, 569.

§ 1313. Several defendants who have no connection with each other in interest, in estate or in contract, and against whom, jointly, the plaintiffs have no cause of suit, either at law or in equity, cannot be joined in one bill. United States v. Alexander, 4 Cr. C. C., 311.

§ 1314. A bill which seeks to have the purchase by which the defendant became possessed of an estate per autre vie set aside, and also to have him charged with certain taxes on the estate, is not multifarious, but alternative, and is an ordinary form of pleading necessary for economy in litigation. Elliot v. Lamon,* 1 MacArth., 647.

§ 1315. Bill in equity by several distributees against administrator to enforce foreign decree for their several shares is not multifarious. Shields v. Thomas, 18 How., 253.

§ 1316. A bill filed against the executors of an estate and all those who purchased from them is not, upon that ground alone, multifarious. Gaines v. Chew, 2 How., 619.

§ 1317. A bill in equity to adjudge the plaintiff to have the equitable title to certain land, and also that a certain person in possession of the land be made party defendant to the bill, be compelled to disclose the nature of his claim to such land, and to account for the rents and profits thereof, is multifarious. Coper v. Flesher, 1 Bond, 440.

§ 1318. A bill by a railroad, joining the various counties through which the road runs as parties defendant, to restrain them from selling, for non-payment of taxes, certain land claimed by the complainant, is not multifarious if the question on which the case turns is common to all, and the counties are in fact the agencies of the state as to that part of the taxes which they must pay into the state treasury. Union Pac. R. Co. v. McShane, 3 Dill., 303.

§ 1319. Where a suit in equity was brought against a company which was alleged to be the fraudulent transferee of another company, on the property of which the plaintiff claimed a lien, joining such transferring company and asking for a decree to establish such lien, for an injunction against further sale, and for a moneyed judgment, it was held that the president of the transferring company was not a proper party, and that the bill as against the two companies was not multifarious. Hibernia Ins. Co. v. St. Louis, etc., Co., 10 Fed. R., 596. § 1320. When a bill sets out one general conspiracy to defraud the complainant it is not multifarious because it charges numerous distinct transactions, if each of these is embraced in the general scope of the conspiracy. Northern Pacific R. R. Co. v. Kindred, 3 McC., 627. § 1321. Where certain land is held by numerous defendants, claiming distinct and sepa

rate parcels by a similar title, and threatening distinct actions for injuries to their respective parcels, a bill brought against such numerous defendants to quiet title, being in the nature of a bill of peace, is not multifarious on account of the joinder of such defendants. Central Pacific R. R. Co. v. Dyer, 1 Saw., 641.

§ 1322. A bill to restrain infringement of a patent is not bad for multifariousness because the article made by the defendants infringes two patents of the plaintiffs, if both are used in the manufacture of one thing, nor because the plaintiff is assignee of both patents, and one patent is assigned for the Pacific coast and the other for the state of California only. Gillespie v. Cummings, 3 Saw., 259.

§ 1323. A bill against an administrator charging fraud, and seeking among other things to open settlements with the probate court, and also to cancel a receipt given by the complainant to the defendant, is not multifarious, if the only object of the bill is to determine the condition of an estate and compel an account by the administrator. Payne v. Hook, 7 Wall., 425.

§ 1324. A bill to collect assessments, charged upon land by the front foot and against the same defendant, is not multifarious because brought to enforce the lien against several lots. Fitch v. Creighton, 24 How., 159.

§ 1325. A bill may be demurred to for multifariousness, both for misjoinder of parties and causes, when one complainant has no standing in court, and the causes are antagonistic because in one, one set of parties are interested, in another, another set. Walker v. Powers, 14 Otto, 245.

§ 1326. A bill founded upon several patents for improvement in reaping machines, intended for use in all such machines, and not necessarily connected, is not multifarious when the machine upon which the suit is brought contains all the improvements. Nourse v. Allen, 4 Blatch., 376.

§ 1327. A bill in equity was held not to be multifarious, which was brought to set aside conveyances of land, against several different defendants, holding different tracts under different purchases, on the ground that the main defense, the validity of a certain will, was common to all the defendants, and though details of the various purchases might be different, yet they might be ascertained without inconvenience to co-defendants. The bill avoided multiplicity of suits, without subjecting defendants to unreasonable expense or inconvenience. It was not important that a separate bill might have been brought against each defendant. Gaines v. Mausseaux,* 1 Woods, 118.

§ 1328. A bill to set aside an insurance policy is not rendered multifarious by joining a prayer to restrain one of the defendants from further prosecuting a suit at law to recover premiums paid. Equitable Life Ass. Soc. v. Patterson, 1 Fed. R., 126.

§ 1329. A count upon a promise to pay in consideration that the plaintiff, who had arrested the other partner upon a ca. sa., would, at the present defendant's request, forbear to prosecute that other partner upon the ca. sa,, and would not trouble him, but let him go out of custody of the marshal, and in further consideration that the debt was a partnership debt for which the present defendant was equally liable with the other partner, and which he had promised that other partner to pay, is not double or multifarious, and is even good upon special demurrer. Rice v. Barry, 2 Cr. C. C., 447.

§ 1330. The objection of multifariousness in a bill must be made before answer; it cannot be made after; and can be tested only by the structure of the bill itself. Nelson v. Hill, 5 How., 127.

§ 1331. The objection of multifariousness can be taken by a party to the bill only by demurrer, or plea, or answer, and cannot be taken at the hearing of the cause. But the court itself may take the objection at any time at the hearing or otherwise. The objection cannot be taken by a party in the appellate court. Oliver v. Piatt, 3 How., 333.

§ 1332. Certain timber land was purchased by A. of X. and Z., A. agreeing to pay therefor at the rate of $1 per thousand feet for all the good pine timber, to be ascertained by certain persons appointed by all parties, who were accordingly appointed and made estimate. A. subsequently conveyed a portion to D., D. agreeing with X. and Z. to pay therefor onefourth in money and the remainder in notes, and they giving a bond to convey him the land on full payment of the notes. D. died insolvent and A. became his administrator, and agreed with X. and Z. in his behalf to surrender the bonds for the notes, which was done. The present bill was afterwards brought by A., as administrator of D., and charged that there was a gross error in the original appraisement, unknown to him, A., by which D. had been induced to make the said bargain, and prayed that the bargain should be set aside, and the purchase money paid by D. should be refunded. But A. made no personal claim for relief. Held, (1) that the bill was objectionable for multifariousness in mixing up the independent claims which A. had personally and which he had as administrator; (2) that it set forth no case for canceling the original agreement; (3) that even if it had, it was too defective and

loose to support such a claim, in not bringing the proper parties before the court, and in alleging a mere mistake without fraud as a ground of relief, which, under the circumstances, was not sufficient. Carter v. Treadwell, 3 Story, 25.

§ 1333. Cross-bill.— A cross-bill is a mere auxiliary suit, and may be brought by a defendant against the plaintiff or against other defendants, or against both, but it must be touching the matters in question in the bill, and must not introduce a new controversy not necessary to be decided in order to have a final decree on the original bill. Cross v. De Valle, 1 Wall., 5.

§ 1334. A bill which brings up new matter not touched by the original parties is no proper cross-bill. Hence, when the original bill asked nothing about future rights in an estate devised, nor sought to avoid anything as tending to a perpetuity, these matters could not be brought up by cross-bill. Ibid.

§ 1335. In a cross-bill brought for relief as well as defense, necessary parties may be joined who were not parties to the original bill. Brandon Manuf. Co. v. Prime, 14 Blatch., 371.

§ 1336. A cross-bill goes no further than to give the party filing it the reciprocal right enjoyed by the complainant in the original bill, in respect to their mutual title or interest in the subject-matter of the suit; and if, in a patent suit, the cross-bill is one of discovery, it must rest on a title in the party filing it either in common with or hostile to the patentee. Young v. Colt, 2 Blatch., 373.

§ 1337. A defendant cannot file a cross-bill until the original bill is answered. Allen v. Allen, Hemp., 58

§ 1338. If a controversy between co-defendants does not affect the rights of the complainant, or qualify the decree in his favor, it is not properly the subject of a cross-bill. To allow a cross-bill to lie, the settlement of the controversy embraced by it must be necessary for a complete decree upon the subject-matter of the original bill. Weaver v. Alter, 3 Woods, 152. § 1339. Any affirmative relief sought by a defendant in equity must be by cross-bill, and can never be granted upon the facts stated in the answer. Chapin v. Walker, 6 Fed. R., 794. § 1340. When a lien on a bond is set up in answer to a bill brought to remove the defendant from trusteeship under a deed to secure payment of the bond to the complainant, and to compel the defendant to deliver up the bond, a cross-bill should be filed to enforce the lien, but if none is filed, still the court will take the lien, if deemed valid, into consideration in making its decree, although no affirmative remedy to enforce it can be given. McPherson v. Cox, 6 Otto, 404.

§ 1311. A cross-bill cannot be filed after leave to file it has been asked of the court and refused. Bronson v. La Crosse R. Co., 2 Wall., 283.

§ 1342. Where several plaintiffs have brought a bill and obtained a decree against defendants for the infringement of a patent, the latter cannot maintain, as a cross-bill, a bill to compel the former plaintiffs to disclose in what proportions they claimed payment of the amount of the judgment, so that the present plaintiffs might set off a judgment obtained by them against one of the former plaintiffs. Rubber Co. v. Goodyear, 9 Wall., 807.

§ 1343. Unless there has been fraud or mistake a party is bound by a cross-bill filed by his solicitor; and the fact that he never saw the cross-bill or read it will not allow him to repu diate it. Putnam v. Day, 22 Wall., 60.

66

§ 1344. The equity practice of the United States courts recognizes no such pleading, as an answer in the nature of a cross-bill" authorized by the code of Georgia. Hicks v. Jennings, 4 Fed. R., 855.

2. Demurrer.

SUMMARY-Demurrer to part, certainty, § 1345.-Demurrer not to rely upon answer, § 1346.— Demurrer to interrogatories, § 1347.- Demurrer waived by answer, § 1348.- Laches, § 1349.- Demurrer to cross-bill, § 1350.— Demurrer to whole bill, § 1351.— Demurrer for unnecessary parties, § 1352.— Demurrer to cross-bill, § 1353.— Demurrer ore tenus, § 1354. § 1345. A demurrer to a part of a bill must point out with certainty the part demurred to. Though this be done properly, the addition of the words "or elsewhere" will be sufficient to vitiate the demurrer by rendering it uncertain. Railroad Co. v. Macomb, §§ 1355–60.

§ 1346. A demurrer to the bill must depend solely upon what appears in the bill and not at all upon the answer. Ibid.

§ 1347. It is no function of a demurrer to interrogatories to raise the question whether the party demurring has sufficiently answered the interrogatories. Ibid.

§ 1348. By putting in an answer to the whole bill a defendant waives a previous demurrer to the whole bill. If, however, he be allowed to elect between them and elect to rely on his demurrer, he will probably be held to waive thereby his right to answer. Adams v. Howard, § 1361.

§ 1349. A defense grounded upon laches or staleness of the claim presented may be raised by demurrer. Landsdale v. Smith, §§ 1362–63.

§ 1350. A demurrer to a cross-bill, on the ground that another court has prior jurisdiction, cannot be sustained. Brandon Manuf. Co. v. Prime, §§ 1364-67.

§ 1351. A demurrer to the whole bill will be overruled if any part be good. Ibid.

§ 1352. Defendants properly joined cannot demur on the ground that others are improperly joined. Ibid.

§ 1353. A cross-bill, for relief as well as for defense, is not subject to demurrer on the ground that it adds parties not joined in the original bill, provided these parties are necessary to the cross-bill. Ibid.

§ 1354. A demurrer ore tenus should be co-extensive with the demurrer on record. Equitable Life Ass. Soc. v. Patterson, § 1368-71.

[NOTES.- See §§ 1372-1420.]

CHICAGO, ST. LOUIS & NEW ORLEANS RAILROAD COMPANY v. MACOMB.

(Circuit Court for New York: 2 Federal Reporter, 18-23. 1880.)

Opinion by CHOATE, J.

STATEMENT OF FACTS.-The complainant, claiming to have succeeded to the rights of purchasers under a foreclosure sale in a certain railroad, has brought this bill for discovery and relief, in respect to certain bonds issued or alleged to have been issued under two earlier mortgages on parts of the road, praying, among other things, that certain of said earlier mortgage bonds, in the possession of the defendants, be delivered up to be canceled. The bill also contains a prayer for general relief.

The defendant Macomb has filed an answer, in which he has answered part of the bill. He has also filed thirty-two demurrers to different parts of the bill, and the demurrers have been argued.

The first demurrer is to "so much and such part of said bill as in the fourth, fifth, sixteenth, eighteenth, twenty-first, twenty-third, twenty-fourth, twenty fifth, twenty-sixth, twenty-seventh and twenty-eighth interrogatories, or elsewhere, seeks that this defendant may answer and set forth the matters as to which he is thereby interrogated of and concerning said first mortgage bonds, etc., not therein and thereby referred to as having been issued without the consent of the trustees in said mortgage, or without the certificate of such trustees." And the special cause of demurrer alleged is that the plaintiff has not stated such a case as entitles it to such discovery.

An objection is taken to this demurrer that, even without the addition of the words "or elsewhere," the demurrer would be sufficiently certain, yet those words make the demurrer bad because it does not point out with certainty the parts of the bills demurred to.

§ 1355. Demurrer to part of a bill must point out with certainty what part.

The rule undoubtedly is that a special demurrer to part of a bill must point out with certainty the part demurred to. This is not only necessary for reasons of convenience, but, unless the demurrer has this precision, there must be great uncertainty in the judgment, if a judgment is entered, sustaining the demurrer. Atwill v. Ferrett, 2 Blatch., 39. The defendant's counsel relies, however, on the case of Claridge v. Hoar, 14 Ves. Jr., 65, as an authority for rejecting the words "or elsewhere" as surplusage. That was not a case of a demurrer, but of a plea, and I think it has no relevancy to this question.

It would seem that if the demurrer is sustained it must be sustained as a whole. And if that is so the judgment would evidently be uncertain as to what parts of the bill under the judgment on the demurrer the defendant