17 15 the defendants." 14 An amendment adding such an averment will be allowed upon a demurrer. A charge of infringement, and a prayer for an injunction and accounting accordingly, may be joined with a charge of interference and a prayer for relief, under section 4918 of the Revised Statutes.16 A bill seeking an injunction with damages against the infringement of a patent, and an injunction with damages against the publication of libelous circulars affecting plaintiff's patent, has been held multifarious. A bill seeking an injunction against the infringement of a patent and the infringement of a trade-mark was held not multifarious when the allegations as to both related to the same subject-matter.18 And so was a bill to set aside a contract for a partnership in royalties, which also prayed an account of matters collected under a verbal understanding before the date of the contract.19 Where a bill set out a contract relating to certain patents, and asked specific performance thereof against several parties, but also contained expressions looking to relief, as in a suit for infringement, it was held that it could not be sustained as a bill with a double aspect, because the determination of who are proper parties must be made from different standpoints in the two kinds of bills. 20 Persons who are acting in concert as employees of the same corporation in the infringement of a patent may be joined as defendants to the same bill. An objection that defendants were improperly joined should be raised by demurrer when it appears on the face of the bill.22 14 Gamewell F. A. Tel. Co. v. Chillicothe, 7 Fed. R. 351; Nellis v. McLanahan, 6 Fisher's Pat. Cas. 286. 15 Union L. & S. Co. v. Philadelphia R. Co., 68 Fed. R. 914. 16 Leach v. Chandler, 18 Fed. R. 202; Holiday v. Pickhardt, 29 Fed. R. 853; Swift v. Jenks, 29 Fed. R. 642; American Roll Paper Co. v. Knopp, 44 Fed. R. 609, 612; Stonemetz P. M. Co. v. Brown F. M. Co., 46 Fed. R. 72. 17 Fougeres v. Murbarger, 44 Fed. R. 292. See International T. C. Co. v. Carmichael, 44 Fed. R. 349. 18 Jaros H. U. Co. v. Fleece H. U. Co., 60 Fed. R. 622. But the joinder of allegations concerning unfair trade in the patented article before the issue of the patent with infringement since the issue was held to constitute multifariousness. Ball & S. F. Co. v. Cohen, 90 Fed. R. 664. 19 Patton v. Glantz, 56 Fed. R. 367. A bill for an infringement is not made multifarious by also pleading a contract in which it is alleged defendants have agreed not to contest the validity of the patent. Dunham v. Bent, 72 Fed. R. 60. 20 American Box Mach. Co. v. Crosman (C. C. A.), 61 Fed. R. 888; s. C., 57 Fed. R. 1021. 21 Poppenhusen v. Falke, 4 Blatchf. 493. 22 Putnam v. Hollander, 6 Fed. R. 882. See §§ 75, 110. § 78. General rules of equity pleading. Otherwise, the rules regulating the frame of a bill and, with the exceptions subsequently given, of other pleadings in equity are substantially the same as those of pleading at common law; but more liberality is used in their construction,' and the use of technical expressions is never necessary. An allegation that the plaintiff is seized in fee simple is equivalent to an allegation that he is in possession. If the plaintiff claim under a derivative title, he must show the steps by which it has come into existence.* Where, however, there is an existing privity between the plaintiff and defendant, independently of the plaintiff's title, which § 78. 1 Daniell's Ch. Pr. (2d Am. ed.), so doing the necessity of future 413. amendments will be avoided, and the progress and dispatch of the case promoted." A demurrer to a bill for a lack of certainty in this respect was sustained. Goldsmith v. Gilliland, 22 Fed. R. 865. But see Thomas v. Nantahala M. & T. Co., 58 Fed. R. 485. On the foreclosure of a mortgage for default in payment of interest coupons, an allegation that they are due and wholly unpaid "to your orator and other holders of said bonds" was held a sufficient allegation of ownership. Toler v. East Tennessee, V. & A. Ry. Co. (C. C. A.), 67 Fed. R. 168. 2 Daniell's Ch. Pr. (2d Am. ed.), 414. 3 Gage v. Kaufman, 133 U. S. 471. A plea which simply alleged that the defendant was "the sole owner in fee simple" of the property in question was held to be bad as a conclusion of law. McCloskey v. Barr, 38 Fed. R. 165. It was said: that, in a suit to remove a cloud from the title of land, generally, "it will be found sufficient for the plaintiff to allege his possession, and interest or estate in the land, as that he is the owner thereof in fee for life or for years, and that he claims the same by a regular chain of conveyances from some recognized and undisputed source of title, as, the United States, or its donee under the donation act of September 27, 1850, without setting out such conveyances or stating them in detail. But when there is reason to believe, as in this case and many others, that the rightfulness of the defendant's claim depends on the validity or legal effect of some link or links in the conveyances under which the plaintiff claims title, it is very convenient, if not necessary, that the statement of the plaintiff's case should contain the facts fully and in detail at that point in the chain of his title where it conflicts with the claim of the defendant. By 4 Lord Digby v. Meech, Bunb. 195; Humphreys v. Tate, 4 Iredell's Eq. (N. C.) 220; Marshall v. Turnbull, 34 Fed. R. 827; Daniell's Ch. Pr. (2d Am. ed.) 369, 370. For a case upon the sufficiency of allegations in a bill that complainants comprise all the heirs and next of kin of deceased, as showing complainant's title, the bill also containing the decree of distribution, see Hubbard v. Urton, 67 Fed. R. 419. "It is not necessary, when all the legal and equitable owners are joined, to state the formalities or the mode of conveyance by which the equitable interests became vested in the co-complainants." Shipman, J., in Black v. Henry G. Allen Co., 42 Fed. R. 618, 623. gives the plaintiff a right to maintain the suit; as, for example, if they are landlord and tenant, or mortgagor and mortgagee, then it is not necessary to state the plaintiff's title fully in the bill. If the plaintiff's title would be incomplete without the performance of some preliminary act, such as the statutory requirements for a copyright, then a performance must be alleged, and a mere statement that the title is complete is insufficient." In a bill filed by an executor or an administrator, it seems to be sufficient to state that the will has been proved, or letters of administration taken out, "in the proper court," without naming it. If, however, the plaintiff undertake to name the court, and it be an improper or insufficient one, the bill is demurrable. An allegation that the defendant is a trustee is insufficient without a statement of the facts which make him a trustee. When the nature of the conveyance through which the plaintiff claims is such that by common law, independent of a statute, as the statute of frauds, for example, no deed, writing 871. Daniell's Ch. Pr. (2d Am. ed.) 370, directors, and signed an instrument "Walburn v. Ingilby, 1 M. & K. 61; Daniell's Ch. Pr. (2d Am. ed.) 369; Story's Eq. Pl., §§ 257, 257a, 258. An allegation that the complainant acquired the title by purchase from the assignee in bankruptcy of the original owner was held sufficient, although it did not state that the assignee in bankruptcy obtained an order from the court authorizing him to make the sale. Amory v. Lawrence, 3 Cliff. 523. Where the plaintiff sued as a shareholder of a joint-stock company, and merely alleged in his bill "that he purchased for valuable considerations divers shares, upon which the instalment of five per cent. had been paid, and that he ever since has been, and now is, the holder of such shares; " while in another part of the bill it was alleged "that by the rules of the association, as set forth in the prospectus, no transfer of shares would be valid in law or equity, unless the purchaser was approved by a board of binding him to observe the regulations," it was held, on demurrer, that such action on the part of the board and the purchaser was a 'condition precedent to the transfer of the title to a share of stock; and that the bill was defective for not alleg. ing such action. Walburn v. Ingilby, 1 M. & K. 61. A complainant who rests his title upon a tax deed must plead performance of the prerequisites to the validity of the deed. Greenwalt v. Duncan, 16 Fed. R. 35. 7 Humphreys v. Ingledon, 1 P. Wms. 752; Black v. Henry G. Allen Co., 42 Fed. R. 618, 623. The averment that the complainant was duly "appointed "administrator was held insufficient; the issue of letters of administration must be alleged. Otto v. Regina M. B. Co., 87 Fed. R. 510. 8 Tourton v. Flower, 3 P. Wms. 369; Black v. Henry G. Allen Co., 42 Fed. R. 618, 624; Daniell's Ch. Pr. (2d Am. ed.) 264. 9 Evan v. Avon, 29 Beav. 144. or other formality was essential to its validity, the English rule was that compliance with such formality need not be alleged.10 In this respect equity followed the rule at common law, that such statutory regulations did not alter the form of pleadings." If, however, it appeared upon the face of the bill that compliance had not been made with such a formality, the bill was demurrable upon that ground."2 But when a right has been originally created by statute, as a right to land by devise, or in this country a patent or copyright, a compliance with the statutory requirements has to be alleged by one claiming under it.13 It has been held that an estoppel in pais must be pleaded by the party who seeks to avail himself of the same.14 "The rule in equity is that it is not sufficient to charge a fraud simply, but you must charge also some injury as the result of the fraud." 15 Where a bill shows apparent laches, it should set forth the impediments to an earlier suit, the cause of the complainant's previous ignorance, if any, of his rights, and when he first knew of them." 16 17 In construing this, as well as all other parts of pleadings, every doubt is against the pleader; " but contracts by corporations are presumed to be within their charters until the contrary is shown.18 When the bill contains general and specific allegations as to the same matter, the general allegations will be referred to those which are specific.19 Exhibits attached to the bill, and therein referred to, are considered as à part of the same.20 "As to exhibits, they are a mere matter of indulgence. In good pleading, strictly, the bill should give the requisite full information of itself; but indulgence to loose practice and 10 Daniell's Ch. Pr. (2d Am. ed.) 416; Harrison v. Hogg, 2 Ves. Jr. 327. 11 Daniell's Ch. Pr. (2d Am. ed.) 416; Stephen on Pleading, 313. 12 Randall v. Howard, 2 Black, 585, 589; Daniell's Ch. Pr. (2d Am. ed.) 417; Redding v. Wilkes, 3 Brown, C. C. 401. 13 Daniell's Ch. Pr. (2d Am. ed.) 419: Sullivan v. Redfield, 1 Paine, 441; Atwill v. Ferrett, 2 Blatch. C. C. 39. 14 Maybury v. Louisville & J. F. Co., 60 Fed. R. 645. 15 Linn v. Green, 17 Fed. R. 407. 16 Badger v. Badger, 2 Wall. 87; Richards v. Mackall, 124 U. S. 183; Gandy v. Marble, 122 U. S. 432; Wollensak v. Reiher, 115 U. S. 96. 17 Phelps v. McDonald, 99 U. S. 298, 305. 18 Express Co. v. Railroad Co., 99 U. S. 191, 199. 19 Ellis v. Colman, 25 Beav. 662; Lumley v. Wabash Ry. Co., 71 Fed. R. 21; Story's Eq. Pl., § 37a. 20 Black v. Henry G. Allen Co., 42 Fed. R. 618, 625; infra, § 106. 21 convenience has allowed exhibits with explicit reference to them in the bill, and they may be referred to in aid of the bill; but they may not be omitted altogether, as here, and the pleader content himself with a naked reference by its date to some document of record in a far-away place." "Good pleading requires that everything that is material to the case should be set forth in the pleading itself by proper averments. This may be done in general terms, and the exhibit may be referred to for greater certainty as to particular details, but the pleading ought to contain the substance of the case." Where the plaintiff's title is intelligibly shown, there is no need of profert of the documents upon which it is founded.23 § 79. The common confederacy clause.-The confederacy part, which came next in order, is now expressly declared unnecessary by the equity rules. It is still, however, inserted by some practitioners. The old form was substantially as follows: "But now it is, may it please your honor, that the said A. B., combining and confederating with divers persons," or, if there are several defendants, "combining and confederating with the said C. D. and E. F., and with divers other persons, at present unknown to your orator, whose names when discovered your orator prays he may be at liberty to insert herein, with apt words to charge them as the parties defendant hereto, and, contriving how to wrong and injure your orator in the premises, he the said A. B. at times pretends that." "This practice is said to have arisen from the idea that without such a charge parties could not be added to the bill by amendment, and in some cases, perhaps, the charge has been inserted with a view to give the court jurisdiction." It is mere surplusage, 21 Hammond, J., in Electrolibration Co. v. Jackson, 52 Fed. R. 773, 776. 22 Chancellor Ellett in Harvey v. Kelly, 41 Miss. 490. 23 La Republique Francaise v. Schultz, 57 Fed. R. 379. "The demurrer says that the bill should make 'profert' of the letters patent, and the plaintiff replies that 'profert' is unknown to equity pleadings. Technically this may be so, but the equivalent of 'profert' is known; and whenever the law pleading must make 'profert,' the equity pleading must allege and prove with fullness enough to give all the benefit that 'profert' would give, and under a rule the production of the document would be compelled." Hammond, J., in Electrolibration Co. v. Jackson, 52 Fed. R. 773, 776. See supra, § 77, note 6; infra, § 206. $79. Equity Rule 21. 2 Story's Eq. Pl., § 29, note 2. |