tion of insolvency in a bill that prays the appointment of a receiver.32 The bill should state facts, not evidence.33 It should not state admissions.34 "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 ments of the plaintiff's suspicions or belief. The best ings are those which state the inculpatory facts that carr them their own conviction of the fraud, and by which the doing appears, without much necessity for characterizing such." 35 stateplead with rong it as Objections to a bill for certainty should be raised by a special motion to dismiss upon that ground,36 or by a motion. further and better statement of the nature of the claim or further 32 Am. Can Co. v. Erie Preserving Co., 171 Fed. 540; Cincinnati Equipment Co. v. Degnan, C. C. A., 184 Fed. 834. 33 Eq. Rule 25. 34 This was held by Judge Story not to be the rule in this country. Smith v. Burnham, 2 Summer, C. C. 612; Jenkins v. Eldredge, 3 Story C. C. 181, 283, 284; Story's Eq. Pl., 265. By the English Chancery practice, admissions could not be put in evidence unless they had been specifically set forth in the bill. Hall v. Maltby, 6 Price, 240; Evans v. Bicknell, 6 Ves. 183; Austin v. Chalmers, 6 Cl. & Fin. 38; Story's Eq. Pl., § 265. This is no longer the practice there. Davy v. Garrett, 7 Ch. D. 473, 47 L. J. Ch. 218, 26 W. R. 225, 38 L. T. 77, (letters); Jones v. Turner, (1875) W. N. 239, (plaintiff had been in formed by the defendant'). According to Professor Langdell, "when for a and better particulars of the matter stated.37 By the former practice, when not raised by demurrer, they were ordinarily held to have been waived.38 § 138. Inconsistency and bills with a double aspect. The Equity Rules of 1912 provide: that the relief prayed "may be stated and sought in alternative forms."1 It has not yet been decided whether this changes the former practice, which was as follows: 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.3 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 exclusive license. The complainant may seek to quiet the title to lands, 37 Eq. Rule 20; infra, §§ 240-242. 38 Chicago, M. & St. P. R. Co. v. Pullman P. C. Co., 50 Fed. 24; Green v. Terwilliger, 56 Fed. 384; Thomas v. Nantahala, M. & T. Co., C. C. A., 58 Fed. 485; Rorback v. Dorsheimer, 25 N. J. Eq. 516, 518; Mason v. Daly, 117 Mass. 403. § 138. 1 Eq. Rule 25. 2 Shields v. Barow, 17 How. 130, 144, 15 L. ed. 158, 162; Halsey v. Goddard, 86 Fed. 25; Shackleton v. Baggaley, C. C. A., 170 Fed. 57, Story's Eq. Pl., § 426, note, $254. 3 Kilgour v. New Orleans Gas Light Co., 2 Woods, 144, 148. The averment "that if said intention is true, which is denied, then the 4 Black v. Henry G. Allen Co., 9 L.R.A. 433, 42 Fed. 618, 623. See Chaffin v. Hull, 39 Fed. 877. 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 an accounting thereunder directed,7 or else that it be reformed, or if that cannot March be allowed that it be cancelled, or else that a lien upon the same, in favor of the plaintiff, be foreclosed, or that the defendant either restore property obtained by fraud or else pay the value of the same.10 But, at least before the act of 3, 1915,10a not for specific performance or in the alternat i ve, for damages which might be recovered at law 11 A bill may that the defendant had actual knowledge or constructive of an essential fact.12 5 Gaines v. Chew, 2 Haw. 619, 643, 11 L. ed. 402, 411; Tully v. Triangle Film Corp., 229 Fed. 297. ac 6 Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141. But see Shields v. Barrow, 17 How. 130, 143, 15 L. ed. 158, 161; St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 33 Fed. 440, 448. But see Cella v. Brown, C. C. A., 144 Fed. 742. A bill was sustained when filed by one partner against another praying for specific per formance of a contract for the sale of land, or else for an count 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 for multifariousness, or as based on antagonistic rights, when it alleged that a mortgage debt was paid be fore the mortgage was foreclosed under a power of sale, and asked that the mortgage and deed be cancelled, and, at the same time, asked that the sale be set aside because the mortgage became the purchaser at his own sale. Dickerson v. Winslow, 97 Ala. 491; S. C., 11 S. R. 918. But see Cut allege notice ler v. Iowa Water Co., 96 Fed. 777. 7 Jackson v. Jackson, C. C. 8 Electric Goods Mfg. Co. tonski, 171 Fed. 550. 175 .Kol 9 Jones v. Missouri-Edison E1. Co., C. C. A., 144 Fed. 765. 419; Fed. 10 Hubbard v. Urton, 67 Fed. U. S. v. Debell, C. C. A., 227 760. But see Alger v. Anderson, 92 66 When the complainant alleged that a decree which he wished 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.13 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,' should charge a fraudulent simulation, and on discovery amend if necessary." 13 Brooks v. O'Hara, 8 Fed. 529; s. c., 2 McCrary, 644. But see Williams v. U. S., 138 U. S. 514, 517, 34 L. ed. 1026, 1028. 14 Pardee, J., in Socola v. Grant, 15 Fed. 487, 489. to A bill by a judgment creditor of a railroad company, against that and another railroad company, 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. I. R. Co., C. C. A., 64 Fed. 535, 550, 551, per Baker D. J.: "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 accord 14 ing to the different cases thus made. Where a bank filed a bill to fore- P a 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. 15 It was held that where a bill prayed specific performance of contract in relation to certain patents, and also contained expressions looking for relief by an injunction against an infringement of one of them, it could not be maintained for the Iatter relief as a bill with a double aspect, since the necessary parties must be different in each case.16 And that a bill could not seek a preliminary injunction to restrain infringement through sales, made by defendant, in violation of the terms of its license, where the bill also prayed for additional relief, which could only : be granted if the license was still in force.17 It was further held that a bill was bad when it contained two alternative claims each belonging to several persons, of whom one had no interest in one claim, and others had no interest in the other; 18 18 that a bill should not pray in the alternative legal and equitable re lief,19 and that a bill in equity with a double aspect must state each position separately and distinctly.20 Under the modern practice in England, it has been held that, in an action for the recovery of land, plaintiff may claim possession as the residuary Bank v. Burke, 94 Ala. 125, 10 S. 15 Clark v. Lord Rivers, L. R. 5 Eq. 91, 97. But see Kilgour v. New Orleans G. L. Co., 2 Woods, 144, 148; Brown v. Pegram, 149 Fed. 515. The plaintiff brought a bill in equity joining A and B as defendants. The bill alleged that the plaintiff owned a lot fifty feet wide, that A owned a lot on one side and B owned a lot on the other side of the plaintiff's lot, that all three claimed under a common grantor, that A and B had erected buildings on their lots, that these buildings were less than fifty feet apart, but that the plaintiff's surveyors could not agree as to which defendant was encroaching. The bill prayed for a determination of the encroachment and a decree for the removal of the encroaching building and damages, 17 Lovell-McConnell Mfg. 18 Stebbins v. St. Anne, 116 386, 29 L. ed. 667. 19 Cherokee Nation = Co. V. Hal Co. V. Fed. U. S. V. Southern Kansas Ry. Co., 135 U. S. 64 1, 651, 34 L. ed. 295, 300; Alger v. Ander son, 92 Fed. 696; Beverige V. 832. Kol V. 20 Electric Goods Mfg. Co. tonski, 171 Fed. 550; Muro Smith, 243 Fed. 654. |