a bill which seeks an account of a trust held by all of the defendants, and also to set aside the effects of a distinct and independent fraud upon the trustor committed by only one of them; a bill asking for a discovery by the defendant of an application for a policy of insurance, and for the specific performance of an agreement to issue the policy sought in the application; and a bill praying the cancellation of a policy together with the perpetuation of testimony concerning the circumstances of its issue. It is not multifarious to seek in 5 injury to the corporation by fraud, Holton v. Wallace, 66 Fed. R. 409; or with a claim for property conveyed to the defendant stockholder by the corporation in fraud of its creditors, First Nat. Bank v. Peavey, 75 Fed. R. 154; or with a claim for damages for false representations as to the company's financial condition, First Nat. Bank v. Peavey, 75 Fed. R. 154; and a bill against a corporation and its officers for a restoration to plaintiff of stock exchanged by him for trust certificates, on the false representation of the officers, and also to enjoin them from executing a mortgage on the corporate property, Schubart v. Chicago Gaslight & Coke Co., 41 Ill. App. 181. But not, it has been said, a bill combining claims for liability against the same person for his acts and omissions as a director and as a stockholder. First Nat. Bank v. Peavy, 75 Fed. R. 154. But see Von Auw v. Chicago T. & F. G. Co., 70 Fed. R. 939; Cambridge Water-works v. Somerville D. & B. Co., 14 Gray (Mass.), 193; Pope v. Leonard, 115 Mass. 286; supra, § 73, note. Nor, it has been held, a bill by depositors against the directors and officers of a bank for negligence in the discharge of their official duties, and for fraudulent representations which induced plaintiff's deposits. Foster v. Bank of Abingdon, 88 Fed. R. 604; Solomon v. Bates (N. C.), 24 S. E. R. 478. Nor a bill to dissolve a partner ship, which alleges that complainant was induced by fraud to enter into the agreement of partnership, that the defendant partner wilfully neglects to comply with the agreement, and that the business is being conducted at a loss. Rosenstein v. Burns, 41 Fed. R. 841. But see Behlow v. Fischer, 102 Cal. 208. Nor a bill filed by one railway company against another to compel an accounting as to the disposition and proceeds of bonds issued by the former to the latter, and the payment of the damages resulting from the foreclosure of the mortgage given to secure those bonds, and to recover the rents due under a lease of the plaintiff's road, when the execution of this lease and the issue of these bonds were parts of the same transaction. Pacific R. Co. of Missouri v. Atlantic & Pac. R. Co., 20 Fed. R. 277. It has been said that a bill is multifarious which prays an injunction against the building of a railroad, or in the alternative an award of damages or compensation for land proposed to be taken by the railroad company. Cherokee Nation v. Southern Kan. Ry. Co., 135 U. S. 641, 651. But see s. c., 135 U. S. 651, 652, cited infra, § 123; Townsend v. Vandernecker, 160 U. S. 171. 4 West v. Randall, 2 Mason, 181. But see Mills v. Hurd, 32 Fed. R. 127. 5 Markey v. Mutual Ben. L. Ins. Co., 6 Ins. L. J. 537. 6 Etna L. Ins. Co. v. Smith, 73 Fed. R. 318. But bills were held not to be the same bill to reform a written agreement on account of a mistake, and to enforce its performance as reformed. Nor is a bill multifarious when brought against a single defendant to collect assessments on account of the same improvement made against several different lots owned by him which do not join each other; nor a bill which seeks an injunction against the infringement in a single publication of four separate copyrights and a right to the title of a fifth book." 8 10 11 Multifariousness in bills to enjoin the infringement of patents is discussed in a subsequent section. A bill is not multifarious when filed by the United States to set aside a land-patent for fraud, obtain an accounting of the rents and profits of the land, and recover damage for waste; or to set aside two patents for inventions used jointly by the same defendant.1 It has been held that a bill will not be dismissed as multifarious because the complaint, in addition to praying for the relief appropriate to the only cause of action supported by the facts pleaded in the bill, has also asked for other relief to which he is not entitled; 13 nor because the plaintiff seeks relief, which multifarious when filed to set aside and cancel an insurance policy and enjoin the further prosecution of an action to recover premiums paid upon it, Eq. Life Ass. Soc. v. Patterson, 1 Fed. R. 126; and to compel the issue of such a policy, and at the same time to collect the same, Hebert v. Mutual L. Ins. Co., 12 Fed. R. 807; Brugger v. State Inv. Ins. Co., 5 Sawyer, 304. Zinc Stove Co. v. N. J. Z. & I. Co., 43 Fed. R. 545. A bill to determine conflicting legal claims to land, and also asking for a partition of the land after the title should be determined, has been held multifarious. Chapin v. Sears, 18 Fed. R. 814. But see supra, § 73. 9 Harper v. Holman, 84 Fed. R. 222. Nor a bill to enjoin the infringement of thirty separate copyrights which 7 Gillespie v. Moon, 2 J. Ch. (N. Y.) covered different parts of the same 585. 8 Fitch v. Creighton, 24 How. 159. But a bill was held to be worthless which alleged that complainant's title to certain property had been so thoroughly established by adjudication that further litigation would be vexatious, prayed that defendant might be enjoined from any further litigation affecting the same, and also claimed the enforcement of a statutory right to require the defendant's claim of title to be now set up, tried and determined. Lehigh publication. Amberg F. & L. Co. v. Shea, 82 Fed. R. 314 (C. C. A.). 10 Infra, § 77. 11 U. S. v. Pratt C. & C. Co., 18 Fed. R. 708. 12 U. S. v. Am. Bell Tel. Co., 128 U. S. 315. 13 De Neufville v. N. Y. & N. Ry. Co., 81 Fed. R. 10; Brown v. Guarantee T. & S. D. Co., 128 U. S. 403, 412; Lehigh Zinc & I. Co. v. N. Y. Z. & I. Co., 43 Fed. R. 545. But see Carmichael v. Texarkana, 94 Fed. R. 561. is not inconsistent, both for himself alone and for himself and others of the same class,14 or for himself both individually and as trustee.15 4 § 75. Objections for multifariousness. An objection to a bill as multifarious should be raised by demurrer. If not apparent upon the face of the bill, it is doubtful whether it can be raised by plea or answer. If it is shown by the bill, it can never be taken for the first time at the hearing or upon appeal; but the court may, of its own motion, dismiss a bill for multifariousness at any time;" and perhaps the objection that the rights of the complainants are inconsistent can be raised at the hearing. The objection cannot be taken by a defendant who is not injured by it. The misjoinder of a defendant against whom the bill states no ground for relief is not a cause for a demurrer by the other defendants. Multifariousness as to subjects or parties does not render a decree void, so that it can be treated as a nullity in a collateral action. It has been held that a bill is not multifarious which joins an 14 Foster v. Bank of Abingdon, 88 Fed. R. 604. Contra, as to a bill by a stockholder both to enforce an individual right and for relief for the common benefit of himself and the other stockholders. Church v. Citizens' St. R. Co., 78 Fed. R. 526. 15 Metropolitan Tr. Co. v. Columbus S. & H. R. Co., 93 Fed. R. 689. § 75. Nelson v. Hill, 5 How. 127. 2 Benson v. Hadfield, 4 Hare, 32; Greenwood v. Churchill, 1 M. & K. 559; Gibbs v. Clagett, 2 Gill & J. (Md.) 14; Putnam v. Hollander, 6 Fed. R. 882. See $$ 77, 110; Story's Eq. Pl., $747; Beames on Pleas, 157, 158. But see Coe v. Turner, 5 Conn. 86. 3 Greenwood v. Churchill, 1 M. & K. 559; Oliver v. Piatt, 3 How. 333, 412; Nelson v. Hill, 5 How. 127; Bowman's Devisees v. Wathen, 2 McLean, 376. But see Coe v. Turner, 5 Conn. 37. 4 Oliver v. Piatt, 3 How. 333, 412; Barney v. Latham, 103 U. S. 205, 215; Converse v. Michigan Dairy Co., 45 Fed. R. 18. Oliver v. Piatt, 3 How. 333, 412; Nelson v. Hill, 5 How. 127, 132; Greenwood v. Churchill, 1 M. & K. 559; Ohio v. Ellis, 10 Ohio, 456. 6 Davies v. Quarterman, 4 Y. & Coll. 257. 7 Buerk v. Imhaeuser, 8 Fed. R. 457. Where a contractor had agreed to pay an employee a percentage of the profits of contracts with different municipalities, it was held that a bill by the employee, joining the municipalities as co-defendants with the contractor, for an accounting, though said to be subject to dismissal for multifariousness at the instance of one of the municipalities, was not so at that of the contractor. Olds v. Regan (N. J. Ch.), 32 Atl. R. 827. See also Couse v. Columbia Power Mfg. Co. (N. J. Ch.), 33 Atl. R. 331. 8 Warthen v. Brantley, 5 Ga. 571; Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106; Miller v. Jamison, 9 C. E. Green (N. J.), 41; Story's Eq. Pl., § 544. 9 Hefner v. Northwestern Life Ins. Co., 123 U. S. 747. insufficient with a good case for equitable relief, when there is no misjoinder of parties, and that the proper course of the defendant is to demur to so much of the bill as is insufficient; 10 but a bill is multifarious which joins two inconsistent complaints by different plaintiffs," although the case shown by the principal plaintiff is insufficient. It is within the constitutional power of Congress to pass a law allowing, in a single specified suit against a corporation chartered by it, matters and defendants to be joined in a manner that would otherwise constitute multifariousness.12 The question in each instance where it arises calls for the exercise of the discretion of the court, regard being had to considerations of convenience and the substantial rights of the parties. Multifariousness depends so much upon the discretion of the courts of first instance, that a decision overruling an objection upon that ground would not be reviewed upon appeal," except under very extraordinary circumstances. When an objection for multifariousness is sustained, the complainant will always be allowed, if he asks leave to do so, to amend upon payment of costs.15 In general, it may be remarked that multifariousness is an objection much more often taken than sustained. § 76. Special provisions of the Federal equity rules and practice." The plaintiff may in the stating or narrative part of his bill state, and avoid, by counter-averments at his option, any matter or thing which he supposes will be insisted upon by the defendant by way of defense or excuse to the case made by the plaintiff for relief." Such matter was formerly included in a separate part called the charging part of the bill, which, however, was never indispensable. It is often important for the plaintiff to thus meet a defense which he antici 1 10 McCabe v. Bellows, 1 Allen (Mass.), 269; Snavely v. Harkrader, 29 Gratt. (Va.) 112; Story's Eq. Pl., $283. See Brown v. Guarantee Trust Co., 128 U. S. 403. 11 Walker v. Powers, 104 U. S. 245, 249. 12 U. S. v. Union Pac. R. Co., 98 U. S. 569. 14 See Gaines v. Chew, 2 How. 619; Oliver v. Piatt, 3 How. 333; Barney v. Latham, 103 U. S. 205; Sheldon v. Keokuk N. L. Packet Co., 8 Fed. R. 769; Daniell's Ch. Pr. 335, note 2. 15 Walker v. Powers, 104 U. S. 245, 249; Price v. Coleman, 21 Fed. R. 357. § 76. Equity Rule 21. 2 Story's Eq. PL., § 33; Langdell's 13 Weir v. Bay State Gas Co., 91 Eq. PL., § 55. Fed. R. 940, per Dallas, J. pates. For as special replications are not allowed, he may thus save the delay of an enforced amendment of his bill, in order to plead new matter as a reply to a defense in the answer. "If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to other parties." "Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains; or that his share had devolved on him since by operation of law; and that the suit is not a collusive one to confer on the court of the United States jurisdiction of a case of which it would not otherwise have cognizance.3 It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action." " This rule does not apply to suits brought by the stockholders of a corporation after its dissolution. But it applies after the Equity Rule 23; supra, § 52. 5 The allegation "that this suit is brought in good faith, and for the collection of, and to compel the collection of, what your orator believes to be a meritorious claim," is not equivalent to the allegation "that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance." Quincy v. Steel, 120 U. S. 241, 246, 247. For cases where refusals to sue were held not to be collusive, see Bowdoin College v. Merritt, 65 Fed. R. 213; Towl v. Am. Bl. & I Co., 60 Fed. R. 131. Cf. Ball v. Rutland R. Co., 93 Fed. R. 513. 6 Rule 94. See also Hawes v. Oakland, 104 U. S. 450; Huntington v. Palmer, 104 U. S. 482; Dodge v. Woolsey, 18 How. 331; Greenwood v. Freight Co., 105 U. S. 13, 16; Detroit v. Dean, 106 U. S. 537, 542; County of Tazewell v. Farmers' L. & T. Co., 12 Fed. R. 752; Dimpfell v. Ohio & Miss. R. Co., 110 U. S. 209; Quincy v. Steel, 120 U. S. 241; §§ 12, 87, 207; Whitney v. Fairbanks, 54 Fed. R. 985. 7 Lafayette Co. v. Neely, 21 Fed. R. 738. A stockholder may file a bill to enforce a cause of action belonging to an insolvent corporation when its |