law,10 that when a state of facts is relied upon, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it or the evidence sustaining the allegation. Documents need not be set forth at length provided their execution and import are properly pleaded; 11 but particular clauses, upon the construction of which the case depends, should be copied in full into the bill.12 Letters which show an excuse for not proceeding with more diligence may properly be included.13 When the complainant needs to plead a lengthy document, it is the better practice to annex a copy to the bill as an exhibit and to state in the body of the pleading that it is referred to, designating the same by a letter or number by which it is marked, with the same effect as if set forth specifically and at length.14 Where the pleader wished to include in his bill a judgment of a State court, it was held to be sufficient for him to describe the suit and the issues therein, to set forth the date of the judgment and the volume and page of the official reports where it could be found.15 Facts not necessarily in the complainant's knowledge he may allege "as your orator is informed and believes, and therefore avers, "16 or "your orator avers upon information and belief." 17 Or "your orator further shows on information and belief." 18 An allegation "as your orator is informed and believes" was said to be bad.19 So was an allegation upon belief.20 It is the safer practice to set forth in

10 Williams v. Wilcox, 8 A. & E. 314, 331, per Denman, C. J. See Steuart v. Gladstone, 10 Ch. D. 644. 11 St. Louis Car Co. v. J. G. Brill Co., 249 Fed. 502.

12 United States v. United Shoe Machinery Co., 234 Fed. 127; Foster v. Callaghan & Co., 248 Fed. 944, in which the author was counsel.

13 Foster v. Callaghan & Co., 248 Fed. 944.

14 Everglades D. League v. Broward D. Dist., 253 Fed. 246. See infra, $$ 365, 366.

15 Hewitt v. Great Western Beet Sugar Co., C. C. A., 230 Fed. 394.

16 Coryell v. Klehn, 157 Ill. 462; S. C., 41 N. E. 64; Wyckoff v. Wagner T. Co., 88 Fed. 515. Murray v. Continental Gin Co., 126 Fed. 533,

534; Helmet Co. v. Wililam Wrig ley, Jr., Co., C. C. A., 245 Fed. 824.

17 Helmet Co. v. William Wrigley, Jr., Co., C. C. A, 245 Fed. 824.

18 Elliott & Hatch Book-Typewriter Co. v. Fisher Typewriter Co., 109 Fed. 330; Murray Co. v. Continental Gin Co., 126 Fed. 533, a charge of the infringement of a patent. See Boyd v. Thayer, 143 U. S. 135, 36 L. ed. 103.

19 Wyckoff v. Wagner Typewriter Co., 88 Fed. 515; Dupree v. Leggette, 140 Fed. 776.

20 Rubber T. Co. v. Davie, 100 Fed. 85. But see Leavenworth v. Pepper, 32 Fed. 718; Kelley v. Boettcher, C. C. A., 85 Fed. 553; Curran v. Campion, 85 Fed. 67.

the bill any facts which justify delay in the commencement of the suit or which would take the case out of the bar of the statute of limitations, if that might otherwise apply.21 Under the former practice, where the complainant anticipated a defense which could only properly be met by pleading new matter, it was necessary to set up the same by way of confession and avoidance in his bill.22 This was originally inserted in the charging part. "It usually consists of some allegation or allegations which set forth the matters of a defense or excuse which it is supposed the defendant intends or pretends to set up to justify his noncompliance 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." 23 This was more recently, when considered to be necessary, inserted in the narrative part of the bill.24 Illustrations of such cases are: a prior patent; and, it seems, an estoppel; 26 but not ordinarily ultra vires.27 The practice under the new rules has not been decided. In England, it is well settled that this should not be done; 28 but there the plaintiff has the right to reply, by way of confession and

21 Edison El. Light Co. v. Equitable Life Assur. Soc. of U. S., 55 Fed. 478. But see Brush El. Co. v. Ball El. Light Co., 43 Fed. 899.

22 Curtain Supply Co. v. Nat. Lock Washer Co., 174 Fed. 45.

23 Story's Eq. Pl., § 31. See Mitford's Pl., ch. 1, § 3.

24 Equity Rule 21; Partridge v. Haycraft, 11 Ves. 574.

25 Curtain Supply Co. V. Nat. Lock Washer Co., 174 Fed. 45, 50. Where the answer set up a license, complainant was not allowed to prove an abandonment thereof because the bill contained no allegation to that effect. Wilson v. Stolley, 4 McLean, 275.

26 Hill v. Hite, C. C. A., 85 Fed. 268. But see Woodward v. Boston

25

L. M. Co., 63 Fed. 609; Story's Eq.
Pl., § 31; Southern Pac. R. Co. v.
U. S., 168 U. S. 1, 42 L. ed. 355.

27 Interstate Construction Co. v.
Regents of the U. of Idaho, 199 Fed.
509.
It was held in North Caro-
lina, that, where a deed was pleaded
in the answer together with aver
ments of the facts upon which its
validity depended, no amendment of
the bill was needed to enable the
plaintiff to attack the validity of
the deed. Boyd v. Hawkins, 2 Dev.
Eq. (N. C.) 195, 215.

28 Hall v. Eve, 4 Ch. D. 341, 345; per James, L. J.: "It is no part of the statement of claim to anticipate the defence, and to state what the plaintiff would have to say in an swer to it."

Whether

avoidance or otherwise, to any defense in answer.29 that is so under the new Federal Equity Rules is unsettled.30 Under the New York Code of Civil Procedure, a defense in an answer may be met by confession and avoidance without any reply or reference to the same in the complaint or other pleading by the plaintiff, unless a reply is ordered.31

§ 137. Certainty. A bill must state the plaintiff's case with sufficient certainty.1

29 Ibid.

30 See 88 195, 203, infra.

31 Welsh

V. German-American Bank, 42 N. Y. Superior Ct. 462, errors in accounts stated; Freund v. Paten, 10 Abb. N. C. 311, fraud in a discharge in bankruptcy.

$137. 1 Thus it was held that a bill by a receiver of a national bank to recover for the loss caused to it by the negligence of its directors, which prays relief against the persons who acted as directors during various periods of time, together with the representatives of such as are dead, must "state the dates of the losses sustained by the corporation and the dates of the acts or omissions contributing to those losses, with sufficient certainty to inform each of the defendants with which and how many of the losses it is sought to charge him.'' Price v. Coleman, 21 Fed. 357. But a late decision holds that upon such a bill it is unnecessary to allege the exact amount of the loss arising from each transaction, where that was not yet known but that the acts of the defendants, which were charged to constitute negligence or misconduct, must be set forth with particularity, and the details of the several transactions should be given with as much fullness as could be done by the complainant.

The

Allen v. Luke, 141 Fed. 694. following allegations were held to have sufficient certainty: that the defendants "suffered and permitted the said reports," which were alleged to be false, "to be placed on file in the Department of the Comptroller of the Currency; that the said directors utterly failed and neglected to perform their aforesaid official duties, and each and every of them; and that for a considerable period of time prior to said November 13th, 1902, as herein before and hereinafter set forth, failed to give any adequate attention to the affairs of said bank, and allowed the said bank to be improvidently

and

"" recklessly managed; and that the defendants "wholly failed and neglected to make personal examinations into the conduct and management of its affairs and into the condition of its accounts.''

Ibid. For an insufficent allegation that plaintiff was a bona fide purchaser of a note before its maturity, see Caesar v. Capell, 83 Fed. 409. For a lack of certainty in allegations concerning the assignment of a patent, see Jaros H. U. Co. v. Fleece H. U. Co., 60 Fed. 622. A bill to enjoin the enforcement as a lien upon land of a judgment entered a few days after complainant had begun to erect a

The same precision of statement required in pleadings at law is not necessary. Less certainty is required concerning facts of which a discovery is sought from the defendant.3

An allegation that an event occurred on or about a certain specified day is, however, sufficient. An allegation that an event happened before a specified date, without averring the day of the event, may be the subject of a motion for a bill of particulars, but it seems that it is not a ground for dismissing the whole bill.5 The bill must state facts, not conclusions of law which will be disregarded by the court. Thus the averment of irreparable injury will be disregarded in the absence of allegations of facts from which the court can see that irremediable mischief may be apprehended from the threatened wrong. An allegation that a decree was null, void and inoperative, is insufficient without a specification of the defects in the same. An allegation, that an act complained of was not a judicial act, and was done without the jurisdiction of a judge, is a mere conclusion of law. An averment that acts were done in pursuance of a conspiracy does

building upon such land under a contract which he claimed gave him priority under a mechanic's lien, was held demurrable for lack of certainty because it failed to set forth the actual dates at which he commenced, carried on, and finished work and labor, and the actual dates on which he furnished materials," in order that the court might determine the validity and extent and right to priority of the lien he claimed. McKee v. Travelers' Ins. Co., 41 Fed. 117, 119. An allegation that a song formed a material part of a dramatic composition was held fatally indefinite because it failed to say whether the pleader intended merely the words of the song, which were set out in the bill, or also the music to which they were sung. Henderson V. Thompkins, 60 Fed. 758, 765. It has been held: that a bill to restrain the wrongful diversion of water from a street is not demurrable

for failure to allege the particular point of the diversion, and the means and methods used therein. Miller v. Rickey, 127 Fed. 573.

2 Prindle v. Brown, C. C. A., 155 Fed. 531, 533; Daniel's Ch. Pr., 1st Am. ed. 421; Storey's Eq. Pl., § 253. See Droullard v. Baxter, 1 Scam. 192.

3 Towle v. Pierce, 12 Met. (Mass.) 329, 332, 46 Am. Dec. 679; Lafay ette Co. v. Neely, 21 Fed. 738.

4 Richards v. Evans, 1 Ves. Sen. 39; Roberts v. Williams, 12 East. 33, 37; Leigh v. Leigh, Daniell's Ch. Pr. 369.

5 Prindle v. Brown, C. C. A., 155 Fed. 531, 533. See § 242, infra. 6 Harper v. Hill, 35 Miss. 63. 7 Indian Land & Trust Co. v. Schoenfelt, C. C. A., 135 Fed. 484. 8 Flannigan v. Chapman & Dewey Land Co., C. C. A., 144 Fed. 371. See U. S. v. Norsch, 42 Fed. 417. 9 O'Connell v. Mason, 132 Fed. 245.

not change the nature of a civil action or add anything
legal force and effect.10 A general charge of fraud is not
cient, but it must allege the specific acts or language which con-
stitute the fraud." All the evidence of the fraud need not be
pleaded.12 It is sufficient if the main facts or incidents

1