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rance is insufficient. It is insufficient to allege that the defendant is a trustee, without stating the facts that show how the trust arose. An allegation that a defendant corporation is about to exceed its powers is insufficient. The bill must show what acts are threatened, and why they exceed the powers of the corporation.10 It has been said that as much certainty is required in a bill by a stockholder to enforce a corporate right as in a bill by the corporation for the same purpose." "The pleader should state the facts, and not formulate mere epithetic 'charges.' If the facts are not to be ascertained by diligence, or because of some obstruction, or if the evidence of them is in possession of the other side, this should be made to appear, with technical averments showing the necessity of discovery, when that is wanted; but a court cannot sustain a bill upon mere denunciatory statements of the plaintiff's suspicions or belief. The best pleadings are those which state the inculpatory facts that carry with them. their own conviction of the fraud, and by which the wrongdoing appears, without much necessity for characterizing it as such." 12

The bill should usually state facts and not evidence.13 The English rule was that no admissions, whether written or oral, could be given in evidence unless they had been specifically charged in the bill. In this country, however, though the point has never been decided by the Supreme Court, we have the authority of Judge Story, holding that such a practice is unnecessary. So, according to Professor Langdell, "when a bill charges a defendant with having had notice, or with having committed a fraud, or with insanity, or drunkenness, or

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10 Leo v. Union Pac. Ry. Co., 19 C. C. 181, 283, 284; Story's Eq. Pl., Fed. R. 283.

§ 265.

lewdness, or misconduct in office, if the plaintiff intends to prove specific acts of notice, or of fraud, insanity, drunkenness, lewdness, or misconduct in office, it seems that such acts should be specifically charged in the bill. But this view is not fully supported by authority. It may also be stated generally, that whenever the plaintiff has evidence which is likely to take the defendant by surprise, it is the safer course to indicate its nature in the bill, rather than to run the risk of having it objected to at the hearing." 16 But as the cases upon the authority of which he made these statements were decided when each party's evidence was unknown to the other until the hearing,—a method of taking testimony long since disused," — it is not likely that the courts would be as strict now as formerly in requiring such evidence to be pleaded. Objections to a bill for lack of certainty should be raised by demurrer, or else they will usually be held to have been waived.19

§ 70. Inconsistency and bills with a double aspect.- A bill must not state two inconsistent states of fact and ask relief in the alternative. But it may state the facts and ask relief in the alternative according to the conclusion of law that the court may draw from them, so that if one kind of relief sought be denied, another may be granted; and it may state facts of a different nature not inconsistent with each other, and equally supporting the prayer for relief. In both of these cases a bill is said to have "a double aspect." Thus, a bill may state facts constituting an attempt to form a new corporation by the consolidation of two already existing, and pray that, if the new corporation have a legal existence, the plaintiff may be declared entitled to a certain number of shares therein, otherwise to a corresponding interest in the stock of one of the old companies. The complainant may seek to quiet the title to lands,

16 Langdell's Eq. Pl., § 60. See Weston v. Empire Assurance Corporation, L. R. 6 Eq. 23; Clark v. Periam, 2 Atk. 337; Shepherd v. Morris, 4 Beav. 252.

17 See Amendments to Rule 67, and infra, chapter XIX, on Evidence.

18 See Smith v. Burnham, 2 Sumn. C. C. 612, 622; Story's Eq. Pl., § 265a. 19 Infra, § 110.

130, 144; Halsey v. Goddard, 86 Fed. R. 25; Story's Eq. Pl., § 426, note, § 254.

2 Kilgour v. New Orleans Gas-Light Co., 2 Woods, 144, 148. A bill to enjoin the infringement of a copyright may set forth an agreement between the author and the plaintiff, and then allege that if such agreement does not constitute an assignment of the copyright, it is an ex

§ 70. Shields v. Barrow, 17 How. clusive license. Black v. Henry G.

claiming either as devisee or as heir-at-law. A bill may contain a prayer that an agreement be either set aside as obtained by fraud, or else specifically enforced, or that the defendant either restore property obtained by fraud, or else pay the value of the same. When the complainant alleged that a decree which he wishes to set aside was obtained either by mistake of all the parties, or by deception practiced upon himself, or by collusion of the defendant with third parties, the bill was held to be demurrable for indefiniteness." "To allege that a sale is simulated, and if not simulated is fraudulent, meaning thereby it is a sham sale, and if not a sham then a real sale, but fraudulent, may be consistent, but it is not certain; and certainty is a requisite in equity pleading as well as consistency. It seems to me that, if there is doubt as to the nature of the transaction, the creditor, who has 'to strike in the dark,'

Allen Co., 42 Fed. R. 618, 623. See for multifariousness, or as based on Chaffin v. Hull, 39 Fed. R. 877. The averment "that if said intention is true, which is denied, then the said State law, to wit, the Act of No. 85 of 1888, is null and void, because it operates as a discrimination against the shareholders of national banks, in violation of the express terms of section 5219 of the Revised Statutes of the United States," is sufficient to raise the issue whether there is in the act any discrimination prohibited by the act of Congress. Whitney Nat. Bank v. Parker, 41 Fed. R. 402, 406.

3 Gaines v. Chew, 2 How. 619, 643. 4 Hardin v. Boyd, 113 U. S. 756. But see Shields v. Barrow, 17 How. 130, 143; St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 33 Fed. R. 440, 448. A bill was sustained when filed by one partner against another praying for specific performance of a contract for the sale of land, or else for an account of the partnership debts, and a charge of their amount upon the land as belonging to the assets of the firm. Hoxie v. Carr, 1 Sumn. 173. It was held that a bill was not demurrable

antagonistic rights, which alleged that a mortgage debt was paid before the mortgage was foreclosed under a power of sale, and asked that the mortgage and deed be canceled, and, at the same time, asked that the sale be set aside because the mortgagee became the purchaser at his own sale. Dickerson v. Winslow, 97 Ala. 491; s. C., 11 S. R. 918. But see Cutler v. Iowa Water Co., 96 Fed. R. 777. If the plaintiff wish to set aside a deed on account of fraud, imposition, and undue influence, he may allege both that the maker was insane and that he had a great imbecility of mind. Story's Eq. Pl., § 254; Bennet v. Vade, 2 Atk. 325; Colton v. Ross, 2 Paige (N. Y.), 396; Lloyd v. Brewster, 4 Paige (N. Y.), 537; Mott v. Mott, 49 N. J. Eq. 177; s. c., 22 Atl. R. 997. But see Jackson v. Rowell, 87 Ala. 685; supra, § 69.

5 Hubbard v. Urton, 67 Fed. R. 419. But see Alger v. Anderson, 92 Fed. R. 696.

6 Brooks v. O'Hara, 8 Fed. R. 529; S. C., 2 McCrary, 644. But see Will iams v. U. S., 138 U. S. 514, 517.

should charge a fraudulent simulation, and on discovery amend if necessary." It was held in England that a bill may not pray relief primarily against one of two defendants, and, in case the court should hold him free from liability, then against the other. A bill is bad when it contains two alternative claims each belonging to several persons, of whom one has no interest in one claim, and others have no interest in the other.9 A bill should not pray in the alternative legal and equitable re

7 Pardee, J., in Socola v. Grant, 15 close a mortgage and to restrain a Fed. R. 487. 489.

A bill by a judgment creditor of a railroad company, against that and another railroad company, to redeem property in the possession of the latter company as mortgagee, on the ground that such possession was fraudulently acquired, and also to subject to the payment of the judgment.certain bonds about to be issued by the latter, to the officers of the former company, in order to confirm the title to such property, was held to be bad as multifarious. Merriman v. Chicago & E. L. R. Co. (C. C. A.), 64 Fed. R. 535, 550, 551, per Baker, D. J.

The court said: "If the appellant's case was solely that the Eastern Illinois Company has no title to the property of the Danville Company, they might pray for various forms of alternative relief consistent with that case; but they cannot in the same bill make a case that it has no title, and also a case that it has a title, and then ask for inconsistent relief according to the different cases thus made. Such course of procedure we do not understand is warranted by the doctrine of alternative relief. Such are alternative cases, and not cases of alternative relief. They are inconsistent, for a decree of one of those forms of relief would proceed upon a theory fatal to the other form of relief."

Where a bank filed a bill to fore

sale of the mortgaged property to satisfy a judgment obtained against it by another, and the holder of the judgment thereupon filed an answer and cross-bill alleging that the mortgage had been withheld from record in fraud of creditors, and praying that the property be sold to satisfy the judgment, and the complainants filed an amendment alleging that, previous to the recovery of the said judgment, they themselves had recovered a judgment upon an indebtedness separate and distinct from the mortgage indebtedness, and that if their mortgage was invalid they had a prior lien under this judgment; it was held that the bill was demurrable for multifariousness. Mobile Savings Bank v. Burke (Ala.), 10 S. R. 328.

Where a bill prayed specific performance of a contract in relation to certain patents, and also contained expressions looking for relief by an injunction against an infringement of a patent, it was held that it could not be maintained for the latter relief as a bill with a double aspect, since the necessary parties must be different in each case. Am. Box Mach. Co. v. Crosman, 57 Fed. R. 1021. See Magic R. Co. v. Elm City Co., 13 Blatch. 151; Halsey v. Goddard, 86 Fed. R. 25.

8 Clark v. Lord Rivers, L. R. 5 Eq. 91, 97. But see Kilgour v. New Orleans G. L. Co., 2 Woods, 144, 148.

9 Stebbins v. St. Anne, 116 U. S. 386.

lief.10 "When the pleadings are so framed as to rest the claim for relief solely on the ground of fraud, it is not open to the plaintiff, if he fails in establishing the fraud, to pick out from the allegations of the bill facts which might, if not put forward as proofs of fraud, have yet warranted the plaintiff in asking for relief. A defendant in answering a case not founded on fraud is not bound to do more than answer the case in the mode in which it is put forward. If, indeed, relief is asked alternatively, either on the ground of fraud, or, failing on that ground, on some other equity, a plaintiff failing on the first may succeed on the latter alternative. But then the attention of the defendant has been distinctly called to it, and he has been called upon to answer the case according to both alternatives. If is the duty of the judge to determine whether the two are so interwoven with each other that, on the failure of proof of fraud, it is impossible to treat the facts as separate allegations, justifying a separate mode of dealing with them." "1 This objection cannot be raised for the first time upon an appeal. When a bill alleges both fraud and mistake, if the latter alone is proved the bill will be sustained.13

12

8 71. Multifariousness in general.-A bill must not be multifarious. Multifariousness consists in the joinder of two or more distinct and unconnected grounds for equitable relief, each of which might be the foundation for a separate bill. This may occur in three ways,- by a misjoinder of plaintiffs, by a misjoinder of defendants, and by a misjoinder of grounds for equitable relief held by and against the same parties.' "To lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition, is, upon the authorities, utterly impossible. The cases upon the sub

10 Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641, 651; Alger v. Anderson, 92 Fed. R. 696.

11 Dwight Foster's Lectures on Equity Pleading, MS.; Eyre v. Potter, 15 How. 42, 56; Britton v. Brewster, 2 Fed. R. 160; French v. Shoemaker, 14 Wall. 314, 335; Fisher v. Boody, 1 Curt. 206; Hoyt v. Hoyt, 27 N. J. Eq. 399; Wilde v. Gibson, 1 H. of L. Cases, 605; Hickson v. Lombard, L. R. 1 H. of L. 326; Thomson v. East

wood, L. R. 2 App. Cases, 215; Price v. Berrington, 2 Macn. & G. 486, 498; Dashiell v. Grosvenor (C. C. A.), 66 Fed. R. 334; Grosvenor v. Dashiell, 62 Fed. R. 584; Brown v. Davis (C. C. A.), 62 Fed. R. 519.

12 Wasatch Min. Co. v. Creston Min. Co., 148 U. S. 283.

13 Williams v. U. S., 138 U. S. 514, 517.

$ 71. 1 Calvert on Parties, Book I, ch. vii.

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