and being a conclusion of law, when inserted need not be answered." §80. The charging part.-Next followed formerly the charging part of the bill, which also has been declared unnecessary by the equity rules,' but is occasionally used. "It usually consists of some allegation or allegations which set forth the matters of defense or excuse which it is supposed the defendant intends or pretends to set up to justify his non-compliance with the plaintiff's right or claim, and then charges other matters, which disprove or avoid the supposed defense or excuse. It is sometimes also used for the purpose of obtaining a discovery of the nature of the defendant's case, or to put in issue some matter which it is not for the interest of the plaintiff to admit; for which purpose the charge of the pretense of the defendant is held to be sufficient." An example of such a case is the estoppel of the defendant to plead in defense. If such averments are considered necessary now, the proper method of pleading is to include them in the narrative part of the bill. § 81. The jurisdiction clause.-Then came the jurisdiction clause. This ran substantially as follows: "All which actings, doings, and pretenses of the said confederates are contrary to equity and good conscience, and tend to the manifest wrong, injury, and oppression of your orator in the premises. In tender consideration whereof, and forasmuch as your orator is entirely remediless by the strict rules of the common law, and can only have relief in a court of equity where matters of this nature are properly cognizable; to the end, therefore,"1 etc. It is still the common usage to insert a short clause of this character, although it has been declared by the equity rules unnecessary.2 § 82. The interrogatory clause.- The interrogatory clause which followed was of much more importance formerly, when parties to a suit could not testify in actions at common law, than it is at the present time. Yet, in addition to the inclu 4Story's Eq. Pl., § 29; Lewin v. Welsbach Light Co., 81 Fed. R. 904. § 80. Equity Rule 21. Pl., § 31; Southern Pac. R. Co. v. U. S., 4 Equity Rule 21; Partridge v. Hay 2 Story's Eq. Pl., § 31. See Mitford's craft, 11 Ves. 574. See § 67. Pl., ch. 1, § 3. Hill v. Hite (C. C. A.), 85 Fed. R. 268. But see Woodward v. Boston L. M. Co., 63 Fed. R. 609; Story's Eq. § 81. Story's Eq. Pl., § 34, and notes. 2 Rule 21. See Ely v. New Mexico & A. R. Co., 129 U. S. 291. sion in the prayer for relief of a request that the defendants be compelled to answer the bill, it is still not unusual to require them to answer specific interrogatories. The equity rules provide as follows: "The interrogatories contained in the interrogating part of the bill must be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3, etc.; and the interrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form to the effect following, that is to say: 'The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3, etc.""1 "The note at the foot of the bill, specifying the interrogatories which each defendant is required to answer, shall be considered and treated as part of the bill; and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment to the bill."2 "Instead of the words of the bill now in use preceding the interrogatory part thereof, and beginning with the words 'to the end, therefore,' there shall hereafter be used words in the form or to the effect following: 'To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several corporate oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to each of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer; that is to say, No interrogatory need be answered or will be sustained which does not refer to some matter alleged in the narrative part of the bill, but a number of interrogatories may be founded upon a single allegation. The criterion of immateriality of interrogatories is not whether an affirmative answer will prove an allegation in a bill, but whether it will tend to prove the bill. Interrogatories which sought a disclosure of the defendant's title, and which asked for copies of correspondence by the defendants with strangers to the suit for the purpose of proving their system of loaning money, were held to be impertinent. The defendant need not answer an interrogatory if by so doing he would subject himself to a penalty, or a forfeiture, or to punishment for a crime.10 When there are no specific interrogatories the defendants are still bound to answer, either admitting or denying every part of the bill, as if they had been specifically interrogated thereabout." An answer under oath to the whole of the bill, or to all but certain specified interrogatories, may be expressly waived by the plaintiff. Such waiver is usually inserted in the prayer for relief or for pro cess. § 83. The prayer for relief.-"The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief. And if an injunction, or a writ of ne exeat regno, or any other special order pending the suit is required, it shall also be spe statement of the reasons for the use of specific interrogatories, see Report of Chancery. Commissioners, 9th March, 1826, Appendix, pp. 1, 2; Story's Eq. Pl., § 38, note 3. 5 Attorney-General v. Whorwood, 1 Ves. 534; Daniell's Ch. Pr. (2d Am. ed.), 422, 433; Fuller v. Knapp. 24 Fed. R. 100; Gormully & J. Mfg. Co. v. Bretz, 64 Fed. R. 612. 6 Faulder v. Stuart, 11 Ves. 296; Bullock v. Richardson, 11 Ves. 375; Story's Eq. Pl., § 37. 7 Uhlmann v. Arnholt & Schaeffer Brewing Co., 41 Fed. R. 369. 8 Kelley v. Boettcher, 85 Fed. R. 55, 60. 9 Alexander v. Mortgage Co., 47 Fed. R. 131. So in a patent case, the complainant was not allowed a discovery of the number of articles that the defendant had sold before a decree for an accounting. Keller v. Strauss, 88 Fed. R. 517. But see National H. B. B. Co. v. Interchangeable B. Co., 83 Fed. R. 26. 10 Stewart v. Drasha, 4 McLean, 563; Atwill v. Ferrett, 2 Blatchf C. C. 39; U. S. v. White, 17 Fed. R. 561, 565; infra, § 109. 11 Amendment of 1850 to Rule 40; McClaskey v. Barr, 40 Fed. R. 559. 12 Amendment of 1851 to Rule 41. cially asked for." Under the prayer for general relief the court will usually grant any relief2 other than an interlocutory order, which is consistent with, and a ground for which is included in, the allegations of the bill, and not inconsistent with the prayer for special relief or with the case made by the bill. It seems that if there be no objection to the specific relief prayed for, the plaintiff cannot at the hearing abandon that and obtain a decree for different relief." It has been held in England, that, in some cases of fraud, where no other relief can be given against a party deeply involved in the fraud § 83. Rule 21. Compare Bloomfield v. Eyre, 8 Beav. 250, 259. 2 Tayloe v. Merchants' Fire Ins. Co., 9 How. 390; Stewart v. Chesapeake & Ohio Canal Co., 1 Fed. R. 361; County of Mobile v. Kimball, 102 U. S. 691; Chicago, St. L. & N. O. R. Co. v. Macomb, 2 Fed. R. 18; Adams v. Kehlor Milling Co., 36 Fed. R. 212. English v. Foxall, 2 Pet. 595; Curry v. Lloyd, 22 Fed. R. 258, 265; Mackall v. Casilear, 187 U. S. 556, 564. 4 Hiern v. Mill, 13 Ves. 118; Soden v. Soden, there cited; Grimes v. French, 2 Atk. 141; Curry v. Lloyd, 22 Fed. R. 258, 265. In a suit upon a bill praying an injunction against the erection and operation of coke ovens on a certain street, and for general relief, the appellate court modified the decree by striking out so much thereof as granted an injunction against the operation of coke ovens so near the plaintiff's premises as to injure them by the exhalations therefrom, on the ground that this was not agreeable to the case made by the bill. Rainey v. Herbert (C. C. A.), 55 Fed. R. 443. Under a bill which prayed an injunction against the pollution of a spring and general relief, a Vermont court granted a decree confirming the complainant's title to the spring and enjoining interference with the same. Coffain v. Cole, 67 Vt. 226. Under a com plaint for the rescission of a sale of land to a minor and for general relief, a Texas court decreed the foreclosure of a lien for the purchasemoney. Morris v. Holland, 10 Tex. Civ. App. 474; s. c., 31 S. W. R. 690. And in Michigan a bill which alleged that the defendant had levied as sheriff was held to support an injunction against him in his official capacity although the prayer for relief did not describe him as sheriff. Wight v. Roethlisberger, 116 Mich. 41; s. c., 74 N. W. R. 474. Where the bill prayed merely a perpetual and not an interlocutory injunction against the construction of a street railway, and the facts proved upon the final hearing showed that an injunction then would not be justified, the Supreme Court held that the bill was properly dismissed, although it contained a prayer for general relief and averments supported by the evidence which showed that the complainant might be entitled to damages in the suit; since the averments were not introduced for that purpose and the complainant at the hearing disclaimed any desire for such relief. Osborne v. Missouri Pac. Ry. Co., 147 U. S. 248, 260. 5 Allen v. Coffman, 1 Bibb (Ky.), 469; Pillow v. Pillow, 5 Yerg. (Tenn.) 420. charged by the bill, the payment of the costs of the suit by that party ought to form the subject of a specific prayer, and that otherwise his demurrer to the bill will be sustained. In a case where the bill contained allegations showing threatened injury to rights of property, not however mentioned as an independent ground of relief, while it was mainly occupied with complaints of a threatened invasion of rights of a political nature, as the specific prayers for relief were confined to the protection of the political rights, although the bill contained a general prayer for relief, the court refused to consider the allegations concerning the threatened injury to property. A bill may pray relief in the alternative, when it is said to have a double aspect. The prayer for general relief, Mr. Robbins, "an eminent counsel," used to say, was "the best prayer after the Lord's Prayer." It is usually in one of the two following forms: "And that your orator shall have such other or further, or other and further, relief in the premises as to this court shall seem meet;" or "that your orator may be further and otherwise relieved in the premises according to equity and good conscience." If a different state of facts, under which the complainant is entitled to relief, appears upon the hearing, the court may allow the case to stand over, and give the plaintiff leave to amend his bill in conformity with them, and then obtain relief.10 And if the complainant be an infant or the representative of a charity, it would formerly grant relief without regard to the allegations in the bill." § 84. Waivers and offers. It is customary to insert in the prayer for relief any waiver or offer which the plaintiff wishes. to make;1 although there is no reason why that should not be set forth in the narrative part of the bill. "If the complainant in his bill shall waive an answer in the oath, or shall only 6 Le Texier v. The Margravine of Anspach, 15 Ves. 159, 164; Daniell's Ch. Pr. (2d Am. ed.) 441. 7 Georgia v. Stanton, 6 Wall. 50. 8 Shields v. Barrow, 17 How. 130, 144; Kilgour v. New Orleans GasLight Co., 2 Woods, 144, 148; Gaines v. Chew, 2 How. 619, 643. See supra, $ 70. Mansaton v. Molesworth, 1 Eden, 26, note b; Dormer v. Fortescue, 3 Atk. 124; Story's Eq. Pl., § 41, n. 1. 10 Beaumont v. Boultbee, 5 Ves. 485; Palk v. Lord Clinton, 12 Ves. 63; Daniell's Ch. Pr. (2d Am. ed.), 439, 440. 11 Stapilton v. Stapilton, 1 Atk. 2; Attorney-General v. Jeanes, 1 Atk. 355; Story's Eq. Pl., § 40, note. § 84. 1 Daniell's Ch. Pr. (2d Am. ed.) 443. |