characteristics of original bills, except that the Federal courts will take jurisdiction of them without regard to the citizenship of the parties, or the other limitations of the original Federal jurisdiction." Original bills are of two kinds: those which pray relief, and those which do not pray relief. Original bills which pray relief are said to belong to three classes: bills which pray the decree of the court concerning some right claimed by the plaintiff in opposition to some right claimed by the defendant, bills of interpleader, and bills of certiorari. Original bills not praying relief are of two kinds: bills to perpetuate the testimony of witnesses, and bills of discovery. Bills not original are bills of revivor, supplemental bills, and bills of revivor and supplement. Bills in the nature of original bills are bills in the nature of supplemental bills, bills in the nature of bills of revivor, cross-bills, bills of review, bills impeaching decrees upon the ground of fraud, bills to suspend the operation of decrees on special circumstances or to avoid them on the ground of matter subsequent, and bills partaking of the qualities of some one or more of these bills. If the court has jurisdiction of an original bill, it will take jurisdiction of bills not original, and bills in the nature of original bills growing out of the first suit, without regard to the citizenship of the parties thereto. And in certain other cases it will take jurisdiction of bills otherwise original which are so intimately connected with matters before the Federal court that it is in the interest of convenience and justice to have them disposed of before the same tribunal.8 These may be named original bills in the nature of bills not original. Such is a bill to obtain a judicial construction of previous decrees; a bill to obtain a determination of the rights of a claimant to a fund in the hands of a Federal marshal;1o a bill to stay proceedings at law;" and a bill to set 9 5 Minnesota Co. v. St. Paul Co., 2 Wall. 609; Krippendorf v. Hyde, 110 U. S. 276; Pacific R. Co. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 505; Continental Tr. Co. v. Toledo, St. L. & K. C. R. Co., 82 Fed. R. 642; supra. § 21. 6 Mitford's Pl., ch. 1, § 2; Story's Eq. Pl., §§ 16-24. 7 Clarke v. Mathewson, 12 Pet. 164; Jones v. Andrews, 10 Wall. 327, 333; 8 Minnesota Co. v. St. Paul Co., 2 10 Krippendorf v. Hyde, 110 U. S. 276; Freeman v. Howe, 24 How. 450. 11 Logan v. Patrick, 5 Cranch, 288; aside a decree.12 The peculiarities in the form and the procedure upon original bills not praying relief, bills not original, and bills in the nature of original bills, will be discussed in the latter part of this work. In this chapter, the form of original bills praying relief and, in the chapters immediately succeeding, the proceedings upon them, will be explained, beginning with the ordinary kind,- bills which seek relief concerning some right claimed by the plaintiff in opposition to one claimed by the defendant. § 65. Frame of a bill in equity.- Formerly, bills usually consisted of nine parts: the direction or address, the introduction, the premises or stating part, the common-confederacy clause, the charging part, the jurisdiction clause, the interrogating part, the prayer of relief, and the prayer of process.1 Of these, however, the common-confederacy clause, alleging that the defendant or defendants are combining and confederating with some persons to the plaintiff unknown, whose names when discovered he prays leave to insert as defendants, which owed its origin to an idea that otherwise the bill could not be amended so as to add new defendants, and its retention to the practice of taxing costs according to the length of the documents filed; the charging part, alleging the defense which it anticipated would be made by the defendant, and the reply which the plaintiff intended to make thereto; and the jurisdiction clause, alleging that the acts of the defendant which were complained of were contrary to equity, and that the plaintiff was without any remedy at law: were not even then considered necessary by the best authorities, and by the equity rules they have been expressly declared superfluous.3 § 66. The address and introduction.- In England, a bill in chancery was required to be addressed to the person having the custody of the great seal, usually either the sovereign, or the Lord Chancellor, except when the Lord Chancellor himself was the complainant, when it was addressed to the sovereign Dunn v. Clarke, 8 Pet. 1; Jones v. Andrews, 10 Wall. 327, 333; Dunlap v. Stetson, 4 Mason, 349. 2 Mitford's Pl., ch. 1, § 3; Langdell's Eq. Pl., § 55; Story's Eq. PL., §§ 29, 32, 33, 34; Comstock v. Herron, 45 12 Pacific R. Co. of Mo. v. Mo. Pac. Fed. R. 660. Ry. Co., 111 U. S. 505. 3 Rule 21. § 65. Mitford's Pl., ch. 1, § 3; Story's Eq. Pl., §§ 26-48. In the United States, as a "in his high court of chancery." great seal is not, as in England, essential to the validity of writs in equity, a bill is addressed to the judge or judges of the court where it is filed. The introduction formerly contained the names, descriptions, and residences of the complainants, together with the character in which they sued, if in a representative capacity, and such other allegations as were necessary to found the jurisdiction of the court. Sometimes the names and descriptions of the defendants were also here inserted, but it was more usual to name them in the next part of the bill. The equity rules regulate the subject as follows: "Every bill in the introductory part thereof shall contain the names, places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows: 'To the judges of the Circuit Court of the United States for the district of: A. B., of and a citizen of the State of, brings this his bill against C. D., of, and a citizen of the State of, and E. F., of and a citizen of the State of -. And thereupon your orator complains and says that,' etc."5 An allegation of residence without an allegation of citizenship is insufficient. If one of the parties is a corporation, the bill must state by or under the laws of what State it was created, and its members will then be conclusively presumed to be citizens of that State. An allegation that a corporation is a citizen of, or that it is "duly established by a law, having its principal place of business" in a specified State, is insufficient. The pleading must allege that it was created by or under the § 66. 1 Mitford's Pl., ch. 1, § 3; Story's Eq. Pl., § 26. 2 Rule 20. 6 Tug River C. & S. Co. v. Brigel, 67 Fed. R. 625; Robertson v. Cease, 97 U. S. 646; Pacific Postal Tel. Co. v. 3 Mitford's Pl., ch. 1, § 3; Story's Irvine, 49 Fed. R. 113. Eq. Pl. § 26. 4 Story's Eq. Pl., § 26. Contra, Leavenworth v. Pepper, 32 Fed. R. 718. Rule 20; U. S. v. Pratt C. & C. Co., 18 Fed. R. 708; § 69. Where there are two districts in a State the bill must show in which district a party resides. Harvey v. Richmond & M. Ry. Co., 64 Fed. R. 19. 7 Lafayette Ins. Co. v. French, 18 How. 404; Muller v. Dows, 94 U. S. 444; Steamship Co. v. Tugman, 106 U. S. 118. 8 Lonergan v. Illinois Cent. R. Co., 55 Fed. R. 550; American S. R. Co. v. Johnson, 60 Fed. R. 503; infra. § 385. 9 N. Y. & N. E. R. Co. v. Hyde (C. C. A.), 56 Fed. R. 188, 191. laws of such State,10 or at least that it was organized " under the laws thereof. If one of the parties is an alien, the bill should aver that he is "a citizen and subject of a foreign State," specifying that State's name.12 Where a bill or a common-law pleading is filed or served subsequent to the commencement of the suit, it should aver the citizenship of the parties at the time the suit was commenced as well as in the present tense.13 An allegation, that the State of which a party is a citizen is unknown, is insufficient when the jurisdiction is claimed for difference of citizenship." How advantage could be taken of an omission in the introduction of the residence of the parties, whether by demurrer or simply by a motion for security for costs, was, under the old practice, a doubtful question.15 It has been held that a bill founded on the patent laws is not demurrable for a failure to state the defendant's residence.16 The bill is certainly demurrable if enough does not appear upon its face to show the court's jurisdiction." It has been suggested that a defect in this respect in the introductory part of a bill is, it seems, not cured by an allegation in its title or caption.13 It has been said that no one can be made a defendant under a fictitious name; 19 but in an English case where the parents of an infant, who was a necessary defendant to a bill, refused to have her baptized in order to interpose difficulties in the plaintiff's way, Sir John Leach ordered that she should be described as the youngest female child of A. B. (naming her father) and C. D. (naming her mother).20 Although this part of the bill should contain the statement that the complainant sues on behalf of others as well as himself, if he intends so to do, it has 10 Lonergan v. Illinois Cent. R. Co., 55 Fed. R. 550. 17 Bingham v. Cabot, 3 Dall. 382; Jackson v. Ashton, 8 Pet. 148; U. S. 11 Ward v. Blake Mfg. Co. (C. C. A.), v. Pratt C. & C. Co., 18 Fed. R. 708; 56 Fed. R. 437. Lackey v. Newton Min. Co., 50 Fed. 12 Wilson v. City Bank, 3 Sumner, R. 634. 422. 18 Jackson v. Ashton, 8 Pet. 148. 13 Lackey v. Newton Min. Co., 56 See Sharon v. Hill, 23 Fed. R. 353; Fed. R. 628. Railway Co. v. Ramsey, 22 Wall. 322; 14 Tug River C. & S. Co. v. Brigel, Berger v. Sperry, 95 U. S. 401; Rob67 Fed. R. 625. 15 Rowley v. Eccles, 1 Sim. & S. 511; Daniell's Ch. Pr. (2d Am. ed.) 409. 16 Vermont Mach. Co. v. Gibson, 50 Fed. R. 233. ertson v. Cease, 97 U. S. 646; Gordon ▼. Third Nat. Bank, 144 U. S. 97. 19 Kentucky S. Mining Co. v. Day, 2 Sawyer C. C. 468. 20 Ely v. Broughton, 2 Sim. & S. 188. been suggested that this might not be necessary when his case is founded upon a statute "which itself gives that force and direction to the bill." 21 § 67. The narrative part of a bill.-The most important portion of a bill in equity is the narrative or stating part. This contains the plaintiff's cause of action. "It should set forth the plaintiff's case in a clear and distinct narrative, with the facts relied upon as the basis of the suit. For convenience, each paragraph should be numbered, so that the successive allegations may be readily referred to. The object of old common-law pleading was to bring the matter in controversy to certain distinct issues. In equity pleading no such attempt is made. The statement of the plaintiff's case in the bill differs little in language or form from any other statement of facts which might be drawn up for the information of third parties, say an application to a government board. The defendant's answer usually admits, or denies, or qualifies seriatim each statement in the bill; and occasionally, before proceeding to notice the statement in detail, the defendant gives a general history of the case from his own point of view. The issues, both of fact and of law, are thus often involved in large masses of statement, and have to be selected, so to speak, by the judge who tries the cause, with the assistance of the arguments of counsel. It would be difficult to imagine a less technical document than a bill in equity." The bill must contain every fact essential to the plaintiff's cause of action. For no evidence will be admitted or considered to prove any fact not alleged in it.' It must plead every fact essential to the rights of the plaintiff, and necessarily within his knowledge, positively, not upon information and belief, and with certainty. Otherwise, it is 21 Irons V. Manufacturers' Nat. son v. Ashton, 8 Pet. 148; Henry v. Bank, 17 Fed. R. 308. Suttle, 42 Fed. R. 91. See ch. XII on § 67. An omission to do this will Amendments. not be a defect in pleading. 2 Lectures before the Law School of Boston University on Equity Pleading by Judge Dwight Foster, MS. See Hayne Eq. 70. Gordon v. Gordon, 3 Swanst. 400, 472; Miller v. Cotten, 5 Ga. 341, 346; Wilson v. Stolley, 4 McLean, 275; Crocket v. Lee, 7 Wheat. 522; Jack 4 Lord Uxbridge v. Staveland, 1 Ves. Sen. 56; Egremont v. Cowell, 5 Beav. 620; Mitford's Pl. 40; Story's Eq. Pl., §§ 255, 256. 5 Harrison v. Dixon, 9 Pet. 483, 503; Wormald v. De Lisle, 3 Beav. 18; Brooks & Hardy v. O'Hara Brothers, 8 Fed. R. 529; Daniell's Ch. Pr. (2d Am. ed.) 421-425; infra, § 69. |