Laws

(U S) 428; Pey- roux Post Date: Wed, 30 Jul 2008 11:29:07 +0000
" Weatherhead v Boyers, 7 Yerg (Tenn) 545, where it was held not necessary, in a bill for relief on the ground of usury, to charge the usury in direct terms, if the facts stated show a case of usur Y To the same point, see also Rode v Bush, 5 TB Mo N (Ky) 4 75 3 Smith v Burnham, 2 Sum N ( U S) 612; Cannon v Collins, 3 De L C H 141; Brandon v Cabiness, 10 Ala 155; Bishop v Bishop, 13 Ala 475, where it is shown that the contrary rule, which was recognized in the English Exchequer and in the Irish Chancery, has not obtained in this countr Y See also Camden, etc, RCo v Stewart, 19 N J E Q 343 4 " Such as the division of coun- ties, the recognition of foreign gov- ernments by our own, the course of practice or proceedings in the court itself, or any other facts of a like public nature which do or may con- cern the general administration of public justic e" Story E Q P I, 24 5 Story E Q P I, 24 See gener- ally article JUDICIAL NOTIC e Vo L XI I, A M Eng Enc Y La W The Federal Courts will take judicial notice of the laws and jurisprudence of all the states and territorie S Ow- ings v Hull, 9 Pet (U S) 607; Gorm- ley v Bunyan, 138 U S 623 See further, as to judicial notice in the federal courts, U S v Perot, 98 U S 428; U S v Williams, 6 Mont 379; McKevin v Northern Pac RCo, 45 Fed Rep 467; U S v La Vengeance, 3 Dal L (U S) 297; The Apollon, 9 Wheat. (U S)374; Steamboat Thomas Jefferso N 10 Wheat. (U S) 428; Pey- roux v Howard, 7 Pet (U S) 343; Lalance, etc, Mfg Co v Mosheim, 48 Fed Rep 452; Fitzgerald v Evans, 49 Fed Rep 426 6 Story E Q P I, 24 7 Perry v New Orleans, etc, RCo, 55 Ala 413; McDonald v Mobile L In S Co, 56 Ala 468 In the case last cited, where it was sought to hold a married woman per- sonally accountable on her contract, it was held that the plaintiff could not d CONCLUSIONS OF LA W It is only necessary to state facts in a bill in chancery ; it is generally improper to state legal con- clusions except, perhaps, where law and fact are so blended as to render it unavoidabl e 1 See article LEGAL CONCLUSION S e DECREE MUST BE SECUNDUM ALLEGATA (i) The General Rul e Although the plaintiff may make out by proof a case which entitles him to relief, yet he can have no decree unless the allegations of the bill are adapted to the case proved, for the court pronounces its decree secundum allegata et probata? And it is avail himself of a special statute re- moving the defendant's disability with- out alleging the same in his bill, and that an averment that the defendant executed the contract, " being at the time relieved of the disabilities of cov- erture and made a free dealer," was not sufficient, but was merely a state- ment of a legal conclusio N See also Goldsby v Goldsby, 67 Ala 560 1 Kelly v McGuire, 15 Ark 593; Cameron v Abbott, 30 Ala 416; Jack- son v Rowell, 87 Ala 685; Bliss v Anderson, 31 Ala 612; Goldsby -v Goldsby, 67 Ala 560; McDonald v Mobile L In S Co, 56 Ala 468; Thompson v Moxey, 47 N J E Q 538; Schuchert v Wabash, etc, RCo, 10 111 App 397; Iowa County v Mineral Point RCo, 24 Wi S 118; Wootten v Burch, 2 Md C H 198 See also Allen v Woodruff, 96 111 19; Williams v Soutter, 55 111 130; Orendorff v Tallman, 90 Ala 441 2 Alabama Maury v Mason, 8 Port.

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(U S) 522; Fisher v Post Date: Wed, 30 Jul 2008 11:17:17 +0000
(Ala) 2ii ; Morgan v Crabb, 3 Port. (Ala) 470; Bozman v Draug- han, 3 Stew (Ala) 243; Charles v Dubose, 29 Ala 367 ; Crabb v Thomas, 25 Ala 212: Land v Cowan, 19 Ala 297; Alexander v Taylor, 56 Ala 60; Flewellen v Crane, 58 Ala 627; Clem- ents v Kellogg, i Ala 330; Gilmer v Wallace, 75 Ala 220; Bone v Lans- den, 85 Ala 562; Wiley v Knight, 27 Ala 336; Ansley -v Robinson, 16 Ala 793; Graham v Tankersley, 15 Ala 634; Lockard v Lockard, 16 Ala 430; Floyd v Ritter, 56 Ala 356; Gibson v Carson, 3 Ala 421; Langdon v Roane, 6 Ala 518; McDonald v Mobile L In S Co, 56 Ala 468 Arkansa S Rogers v Brooks, 30 Ark 612; Barraque v Manuel, 7 Ark 16 California Green v Covillaud, 10 L 317 Connecticut Whitney v New laven, 58 Con N 450; Crocker v Higgins, 7 Con N 342; Skinner -v Bailey, 7 Con N 497 Florida Anderson -v Northrop, 30 Fla 612; Thornton v Eppes, 6 Fla Illinoi S Walker v Ray, in 111 315; Rowan v Bowles, 21 111 17; Fitz- patrick v Beatty, 6 111 455; Morgan v Smith, ii 111 194 KentucKy Strother v Lovejoy, 8 b Mo N (Ky) 135; Spriggs v Albin, 6 J J Marsh (Ky) 158; Buck v Mc- Caughtry, 5 TB Mo N (Ky) 220; Pennsbaker v Wathan, 2 A K Marsh (Ky) 317 Maine Merrill z/ Washburn, 83 Me 189; Scudder v Young, 25 Me 153; Stover v Poole, 67 Me 217 Marylan d Dilly v Barnard, 8 Gill J (Md) 171; Berry v Pierson, i Gill (Md) 234; Chalmers v Cham- bers, 6Har J (Md) 29 Massachusett S Drew v Beard, 107 Mas S 64 Michiga N Elliott v Amazon In S Co, 49 Mich 579; Booth v Thomp- son, 49 Mich 73; Thayer v Lane, Wal K (Mich) 200; Cicotte v Gagnier, 2 Mich 390; Moran v Palmer, 13 Mich 372; Barrows v Baughman, 9 Mich 213 Minnesota Barteau v Barteau, 45 Min N 132; Walton v Perkins, 28 Min N 415 Missour I McNair v Biddle, 8 Mo 257 New Jerse Y Jordan v Clark, 16 N J E Q 243; Marsh v Mitchell, 26 N J E Q 497; Parsons v Heston, n N J E Q 155; Mott v Mott, 49 N J E Q 192; Hoyt v Hoyt, 27 N J E Q 399; Brantingham v Brantingham, 12 N J E Q 160; Hovvell v Sebring, 14 N J E Q 84; Smith v Axtell, i N J E Q 494; Hopper v Sisco, 5 N J Eq, 343; Stucky v Stucky, 30 N J E Q 546; Lehigh Valley RCo v McFarlan, 30 said that this rule is substantially adhered to with the same strict- ness in equity as at la W 1 (2) Admissions in AnsweRNo admissions in an answer can, under any circumstances, lay the foundation for relief under any specific head of equity, unless it be substantially set forth in the bil L 2 N J E Q 180 See also Scott v Gamble, 9 N J E Q 218 New York Smith v Smith, 4 John S C H ( N Y) 286; Kelsey v Western, 2 N Y 500; Bailey v Ryder, 10 N Y 363; Forsyth v Clark, 3 Wen d ( N Y) 637; Consequa v Fan- 42 Fed Rep 91 Com'rs v Kerr, 13 Fed Rep 502; Boone v Chiles, 10 Pet (U S) 177; Wilkinson v Dobbie, 12 Blatchf ( U S) 301; Simms v Guthrie, 9 Cranch (U S) 19; Spies v Chicago, etc, RCo, 40 Fed Rep 34; Henry v Suttle, nmg, 3 John S C H ( N Y) 587; Thomas v Austin, 4 Barb ( N Y) 265 North Carolina Craige v Craige, 6 Ire d E Q (N Car) 191; McBrayer v Roberts, 2 Dev E Q (N Car) 75; Smith v Smith, i Ire d E Q (N Car) Ohio White v Denman, i Ohio St in; Bougher v Miller, Wright (Ohio) 328; U S Bank v Schultz, 3 Ohio Rhode Islan d Tillinghast z/Champ- lin, 4 RI 173, criticising and reconcil- ing Mount Vernon Bank v Stone, 2 R I 129, and Masterson v Finnigan, 2 RI 316 Tennessee Duluth Nat Bank v Knoxville F In S Co, 85 Tenn 87; Turley v Turley, 85 Tenn 260; Ross v Ramsey, 3 Head (Tenn) 15 Ver Mont Sanborn -v Kittredge, 20 Vt 632; Barrett v Sargeant, 18 Vt 365; Thomas v Warner, 15 Vt no; White v Yaw, 7 Vt 357 VirginiaSheppard v Starke, 3 Munf ( Va) 29; Jackson v Cutright, 5 Munf ( Va) 314; Parker vt Carter, 4 Munf ( Va) 273 West VirginiaBier v Smith, 25 W Va 830; Lamb -v Laughlin, 25 W Va 300; Floyd v Jones, 19 W Va 359; McFarlan v Dilly, 5 W Va United State S Langdon v God- dard, 2 Story (U S) 267; Bradley v Converse, 4 Cliff (U S) 366; Eyre v Potter, 15 How (U S) 56; Crocket v Lee, 7 Wheat. (U S) 522; Fisher v Boody, i Curt (U S) 206; Hobson v M'Arthur, 16 Pet (U S) 182; Harri- son v Nixon, 9 Pet (U S) 503; Kin- ney v Consolidated Va Mi N Co, 4 Saw Y (U S) 382; Mackall v Casilear, 137 U S 556; Allen v Pullman's Pal- ace Car Co, 139 U S 662; Britton v Brewster, 2 Fed Rep 160; South Park Facts must Appear in Bil L No facts are in issue unless charged by the bill, and no relief can be granted for mat- ters not charged, although they may be apparent from other parts of the pleadings and evidenc e Story E Q PL, 257; St Andrews Bay Land Co v Campbell, 5 Fla 560; Anderson v Northrop, 30 Fla 612; Land v Cowan, 19 Ala 297 Material Variance Fatal to Decre e A decree founded on a bill which does not aver facts authorizing the court to grant the relief will be re- versed on appeal, even where no ob- jection was interposed in the court belo W Flewellen v Crane, 58 Ala 627 But see Morrow Shoe Mfg Co v New England Shoe Co, 57 Fed Rep 685 Such a decree is a nul- lity, and will be so treated in a collat- eral proceedin g Consolidated Elec- tric Storage Co v Atlantic Trust Co ( N J, 1892), 24 At L Rep 229; Marsh v Mitchell, 26 N J E Q 497 1 Hoyt v Hoyt, 27 N J E Q 399; Brantingham v Brantingham, 12 N J E Q 160; Smith v Axtell, i N J E Q 494; Morrison v Hart, 2 Bibb (Ky) 4; Lemaster v Burckhart, 2 Bibb (Ky) 25 See also Brainerd v Arnold, 27 Con N 617; Bailey v Ryder, 10 N Y 363 Contra, Rose v Mynatt, 7 Yerg (Tenn) 30; Cunningham -v Wood, 4 Humph (Tenn) 417; Anthony v Left- wich, 3 Ran d ( Va ) 263 Immaterial Varianc e Relief will not be denied unless the case stated and the case proved are so materially vari- ant as to prevent a decree in favor of the complainant.

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Tennessee In Shannon v Post Date: Wed, 30 Jul 2008 11:00:18 +0000
Campbell v Bowles, 30 Gratt ( Va) 652; Zane v Zane, 6 Munf ( Va)4i6; Berry v Van Winkle, 2 N J E Q 277 For Illustrations of Variance, material and immaterial, see article VARIANC e 2 Per Justice M'Lean in Jackson v 2 Plaintiffs Title and IntereSt The bill must clearly show the title and interest of the plaintiff in the subject-matter of the suit, 1 Ashton, ii Pet (U S) 249; Knox v Smith, 4 How (U S) 298; Lamon v McKee, 18 d C 446; Lockard v Lock- ard, 16 Ala 430; Moran v Palmer, 13 Mich 372; Porter v Rutland Bank, 19 Vt 426; Thomas v Warner, 15 Vt no; Lingan v Henderson, I Bland (Md) 249; Savage v Lane, 6 Hare 32 See also West v Hall, 3Har J (,Md) 221; Story E Q PL, 264 Conflicting Authoritie S Many cases hold that relief may be granted upon admissions made or facts stated in the answer; but it is difficult to determine whether they deny or merely qualify the rule stated in the text. Iowa See Dinwiddie v Roberts, I Greene (Iowa) 363 KentucKy In McLaughlin v Dan- iel, 8 Dana (Ky) 184, it was held that indefiniteness in the allegations of a bill may be cured by concessions in the defendant's answeRSee also Deatly v Murphy, 3 A K Marsh (Ky)474; Pennsbaker v Wathan, 2 A K Marsh (Ky) 317 Compare Gates v Raleigh, i TB Mo N (Ky) 164 JVorth Carolina In Browning v Pratt, 2 Dev E Q (N Car) 44, the court said that the plaintiff sometimes obtains a decree solely upon an ad- mission in the answer, but the ad- mission must have some reference to the case made by the bill, and not be entirely in avoidance of it. Tennessee In Shannon v Erwin, ii Heis K (Tenn) 337, it was declared to be a well-settled rule that " where the facts stated in the answer make out a proper case for relief, its state- ments being all taken together, then relief may be granted to the complain- ant such as may be warranted by such answe R" To the same point see Rose v Mynatt, 7 Yerg (Tenn) 30; Maury v Lewis, 10 Yerg (Tenn) 115; Neal v Robinson, 8 Humph (Tenn) 435 VirginiaSee Pierce v Trigg, 10 Leigh ( Va) 423 United State S In Cavender v Cav- ender, 114 U S 471, it was held that an answer setting forth material facts, which should have been stated in the bill but were omitted therefrom, was a waiver of the right to object to the bill on account of the omission; and it was said that "courts of equity are frequently required to act on the admissions of the answer, without other proof," as, for instance, when a hearing is upon bill and answer, in which case the decree is based entirely on the admissions of the answer, with- out other testimon Y In Hagan v Walker, 14 How ( U S) 29, 35, facts stated in an answer were held to show that what would appear to have been a defective state- ment in the bill was not essentially defective on account of the existence of these fact S In Johnson v Waters, in U S 640, it was held that the statement of facts in the answer could be called into req- uisition to show that a claim was not prescribed as state d In Richardson v Green, 61 Fed Rep 431, the bill omitted a necessary allegation of the probate of a will; and the defect was rendered immaterial by a statement of the fact in the defend- ant's ple A Englan d In Mortimer v Orchard, 2 Ve S JR243, where the bill stated one case and the proof another, and the answers a different one from both proof and bill, Lord Roslyn de- creed upon the statements of the an- swer S See also Matthew v Hanbury, 2 Ver N 187 Answer Opposed to PrayeRA decree cannot be had upon an admission in the answer which is opposed to the prayer of the bil L Ansley -v Robin- son, 16 Ala 793 On Consolidated Pleading S Where a bill, cross-bill, petition, and answers thereto relating to the same subject- matter are consolidated and heard to- gether, and a decree rendered, it will be considered as made in view of all the allegations of the parties as con- tained in all the pleadings, although the petition and cross-bill may be dis- missed on the hearin g Wilmington Star Mi N Co v Allen, 95 111 288 1 Alabama Holman v Norfolk Bank, 12 Ala 369; McKinley z/Jcvine, 13 Ala 698; Savannah, etc, R: Co v Lancaster, 62 Ala 555; Mobile, etc, RCo v Talman, 15 Ala 472; Cock- rell v Gurley, 26 Ala 405; Meadors v Askew, 56 Ala 584; Rapier v Gulf City Paper Co, 64 Ala 330 Florida State v Black River Phos- phate Co, 27 Fla 276; Marye v Root, 27 Fla 453; Richardson v Gilbert, 21 Fla 544 which must be an actual existing interest, as a mere possibility, or even probability, of a future title will not be sufficient to sus- tain a bil L 1 If the plaintiff's interest is such that it may be barred or defeated by the act of the defendant he cannot support a bil L 8 A plaintiff must not only show an interest in the subject- matter of the suit, but he must also make it appear that he has a proper title to institute a suit concerning it, 3 for it sometimes happens that a person may have an interest in the subject-matter, and yet, for want of compliance with some requisite forms, he may not be entitled to institute a suit relating to it.

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(U S) 169; Pelletreau v Post Date: Wed, 30 Jul 2008 10:43:38 +0000
4 And where the plaintiff sets forth his title to the subject-matter and to relief, he cannot have a decree based upon another and different titl e 5 KentucKy Clark v Bell, 2B Mo N (Ky) I Massachusett S Manning v Fifth Parish, etc, 6 Pic K (Mas S) 17 Michiga N Lamb v Jeffrey, 47 Mich 28; Smith v Austin, 9 Mich 465 New Jerse Y Phillips v Schooley, 27 N J E Q 410 New- York Cruger v Halliday, n Paige ( N Y) 314 North Carolina Smith v Turner, 4 Ire d E Q (N Car) 433; Edney v King, 4 Ire d E Q (N Car) 465 Pennsylvania Barry v McAvoy, 10 Phi La (Pa) 99 VirginiaCarter v Carter, 82 Va 624 West VirginiaNorris v Lemen, 28 W Va 336; Barr v Clayton, 29 W Va 256 United State S U S Mercantile Trust Co -v Kanawha, etc, RCo, 39 Fed Rep 339 See also Strickland v Fitzgerald, 7 Cus H (Mas S) 531; Rabberman v Hause, 89 111 209; Kunkel v Markell, 26 Md 408; Dennis v Dennis, 15 Md 124; Iowa County v Mineral Point RCo, 24 Wi S 118; Stewart v Flint, 57 Vt 216 As to the precision required in setting forth the plaintiff's title and interest, see article DEFINITENESS AND CERTAINTY IN PLEADING S The plaintiff's title ought to be shown by affirmative statements in the bil L It is not sufficient that it appears in the title of the bil L Edney v King, 4 Ired, E Q (N Car) 465 An averment that a contract was made for the account and use of the plaintiff sufficiently alleges his inter- eSt Railroad Co v Ashton, 5 Le g Gaz. (Pa) 13 Where the Government is Plaintiff it must show, like a private person, that it has such an interest in the relief sought as entitles it to sue therefoRU S v San Jacinto Tin Co, 125 U S 285, a suit to set aside a patent for lan d 1 Daniell C H Pr (ist A M e d)362; Mitford E Q P I (Tyler's e d, 1890) 249; Sackvill -v Ayleworth, i Ver N 105; Smith v Att'y Gen'l, i Ver N 105, note Noel v Ward, i Mad d 323; Allan v Allan, 15 Ve S JR130; Earl of Bel- fast v Chichester, 2 J W 439 Where, however, a party has an in- terest, " it is perfectly immaterial how minute such interest may be ; how distant the possibility of the posses- sion of that minute interest: if it is a present intereSt" Per Lord Eldon in Allan v Allan, 15 Ve S JR136 2 Daniell C H Pr (ist A M e d) 3 Mitford E Q P I (Tyler's e d, 1890) 246; Daniell C H Pr (ist A M e d) 363 4 Daniell C H Pr (ist A M e d) Probate of Wil L Thus, one suing as executor must allege a probate of the wil L Humphreys v Ingledon, i p Wm S 752; Armstrong v Lear, 12 Wheat. (U S) 169; Pelletreau v Rathbone, I N J E Q 331; Carter v Ingraham, 43 Ala 84 Where the bill fails to allege the probate of the will, but defendant's answer alleges that it was admitted to probate, the defect in the bill is cure d Richardson v Green, 61 Fed Rep 423 The defect may also be cured by amendment.

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Chapman v Pittsburgh, etc, RCo Post Date: Wed, 30 Jul 2008 10:26:51 +0000
See article AMEND- MENTS, Vo L I, p 471 5 Whitney v New Haven, 58 Con N 450; Meadors v Askew, 56 3 Defendant's Title and IntereSt It is not alone sufficient that the bill shows the title and interest of the plaintiff; there must also be sufficient averments to show that the defendant has an in- terest in the subject-matter, and is liable to answer to the plaintiff therefoR1 4 Designation of Parties In Genera L The first requisite of every bill, whether original or by way of supplement or review, is that there shall be parties thereto, made such by proper description and na Me 2 Plaintiff The bill must in some clear and sufficient way show who is the plaintiff therei N 3 Defendant It is equally necessary that some person must be made a defendant, distinctly and clearly 4 by language, not simply mentioning him in the narration of facts, but as a person to be Ala 584; Crabb v Thomas, 25 Ala 212; McKinley v Irvine, 13 Ala 698; Langdon v Goddard, 2 Story (U S) 267; Moran v Palmer, 13 Mich 367 See also article AMENDMENTS, Vo L I, P 472 et se Q Compare Wootten v Burch, 2 Md C H 198; Rapier v Gulf City Paper Co, 64 Ala 330 1 Story E Q P I, 262; Stillwell v, Adams, 29 Ark 346, a suit against a married woman to subject her separate property; Jerome v Jerome, 5 Con N 352; Crane v Deming, 7 Con N 387; Sprague v Shields, 61 Ala 428; Hum- phreys v Tate, 4 Ire d E Q (N Car) 220 Certaint Y As to the precision re- quired in setting out the defendant's title or interest, see article DEFINITE- NESS AND CERTAINTY IN PLEADING S When a bill seeks to enforce a con- tract by which one of the distributees of an estate assigned to the plaintiff all his interest in the undivided assets of the estate, it must show that such distributee, at the time of the assign- ment, had an interest in the assets, and furnish the data from which that in- terest may be ascertaine d Bogan v Camp, 30 Ala 276 Privit Y The bill must show a priv- ity between the plaintiff and the de- fendant. Story E Q P I, 262 Dismissal on General DemurreRIn Emerson v Walker T P, 63 Mich 483, the plaintiffs filed a bill to restrain a town treasurer from collecting a drain tax, alleging its illegality, and prayed process against the township as a joint Defendant Norelief wasasked against the township, nor was its interest in the subject-matter of the suit shown by the bil L It was held that the bill was properly dismissed as to the town- ship, on general demurrer, for want of equit Y Confined to the Interest Allege d Where a bill was filed against defend- ants as trustees and as the representatives of a testator in their representative ca- pacities, and the prayer of the bill was in conformity thereto, the plaintiff was held entitled to an account against them only in the aspect thus pre- sente d Scott v Gamble, 9 N J E Q 218 2 Kanawha Valley Bank v Wilson, 35 W Va 36 3 Houston v McCluney, 8 W Va 135 Cook v Dorsey, 38 W Va 197 In the case last cited, the bill began, " Humbly complaining, your orator shows," not naming the orator; but the name of a person, by his'attorney, was signed at the end; and the court said that, by great liberality, perhaps the bill might be considered as having a plaintiff, although by technical prac- tice it could not be so treate d But that point was found not necessary to the decision of the cas e 4 Praying that certain heirs be made defendants, without taking out process against them or naming them in the bill, does not make them de- fendant S Huston v M'Clarty, 3 Litt (Ky) 274- In a bill to foreclose a mortgage, a prayer for relief and discovery against " said defendants hereinafter named," can only refer to defendants already mentioned, and not to a defendant named merely in the following prayer for proces S Wheeler, etc, Mfg Co v Filer ( N J, 1893), 28 At L Rep 13- acted upon by decree, so as to make it a finality for and against him as an estoppe L 1 5 Stating Written Instruments Exhibit S It is admissible, to a certain extent, in pleading in chancery to file written exhibits and to refer to them as a part of the bill ; * but good pleading requires that everything that is material to the case should be set forth in the bill itself by proper averment S 3 This may be done in general terms, and the exhibit may be referred to for greater certainty as to particular details, 4 but the bill ought to contain the substance of the cas e 5 When a bill not only refers to but makes a certain 1 Cook v Dorsey, 38 W Va 197; Kanawha Valley Bank v Wilson, 35 W Va 36; Anderson v Wilson, 100 Ind 402 See also Elmendorf v De Lancey, Hop K ( N Y) 555; McCoy v Allen, 16 W Va 724 In some jurisdictions it is required that the defendants shall be named in the prayer for proces S See II I I O The Prayer for Process, supr A It is usually necessary, however, that the person against whom relief is demanded shall also be specifically named and described as a defendant in the bil L Anderson v Wilson, 100 Ind 402 Naming him in the summons and serving him with process are not alone sufficient. Chapman v Pittsburgh, etc, RCo, 18 W Va 184 In Virginia " a prayer, not that proc- ess issue, but that certain persons be treated as defendants and required to answer the bill, would certainly make them defendant S" Cook v Dorsey, 38 W Va 197, citing Barton C H Pr 263 Descriptio Persona e In Yulee v Ca- nova, ii Fla 9, the description of the defendant in the bill as major and commissary, etc, together with alle- gations that he, as such officer, acted so and so, was held, under the circum- stances of the case, to be a mere de- scriptio persona which might be treated as inducement or surplusag e 2 " If a party avers that he holds title to anything by a certain instru- ment, which he annexes, and that in- strument both grants the title and describes the full extent of the rights conferred, * * * it is equivalent to an averment that he has title to all the rights specifically described in such instrument.

Autor of the post: Undefined

Farland v Wood, 35 Post Date: Wed, 30 Jul 2008 10:08:33 +0000
" American Bell Te L Co v Southern Te L Co, 34 Fed Rep 803 As to the pleading of written in- struments or records in patent cases, see article PATENT S 3 Harvey v Kelly, 41 Mis S 493; Martin v McBryde, 3 Ire d E Q ( N Car) 531; King v Trice, 3 Ire d E Q (N Car) 568 A bill which does not set forth a copy of an instrument vital to the plaintiff's claim, or contain any aver- ment setting forth the terms thereof, is demurrabl e Marshall v Turnbull, 34 Fed Rep 827 4 Harvey v Kelly, 41 Mis S 494; Owen v Moore, 14 Ala 640 See also Edison Electric Light Co v U S Elec- tric Lighting Co, 35 Fed Rep 137 Deeds in Haec Verb A A bill ought not ordinarily to set forth deeds in htzc verba, and if the pleader sets forth only so much thereof as is mate- rial to the point in question, it is sufficient. Story E Q P I, 241 Hood v InmaR4 John S C H ( N Y)-437, where the foregoing state- ment was illustrated as follows: "If A has been entitled to the thing in question, who conveyed it to B, who conveyed it to C, who conveyed it to the plaintiff after the thing is cer- tainly set forth in A it is enough to say he conveyed it to B, and he to C, and he to the plaintiff, as by the deeds ready to be produced will appea R" See also Pauncefort v Lincoln, Dic K 362; Goodrich v Parker, i Min N 195 The effect of such a reference is to make the whole document referred to a part of the recor d Daniell C H Pr (6th A M e d) 367 In the Federal Courts Equity Rule 26 provides that the bill "shall con- tain no unnecessary recitals of deeds, documents, contracts, or other instru- ments, in hc verb A" 5 Electrolibration Co v Jackson, 52 Fed Rep 773; Sprague v Shields, 61 Ala 428; Little v Snedecor, 52 Ala 167; Ramsey v Temple, 3 Lea instrument a part of the bill itself, such instrument may be used in aid of a defective statement ; * but if the instrument is merely referred to it cannot be resorted to for that purpos e 8 6 Certaint Y There are some cases in which the same technical certainty is required in a bill in equity as in a declaration at com- mon law ; but certainty to a common intent is all that is ordinar- ily require d 3 7 Positiveness Information and Belief When the equity of a bill rests upon the existence of a particular fact, that fact must be clearly alleged ; 4 and although a positive charge such as correct pleading requires may be made upon information and belief, 5 especially where the fact lies in the knowledge of the defend- ant alone and discovery is sought, 6 yet a mere statement that the plaintiff is informed, or is informed and believes, puts in issue only his information and belief, and not the truth or falsity of the facts thus referred t O 7 1 Piedmont Land Im P Co v Pied- mont Foundry, etc, Co, 96 Ala 389; Moore v Titman, 33 111 357; Electro- libration Co v Jackson, 52 Fed Rep 773; Hastings v Belden, 55 Vt 273 See also Surget v Byers, HempSt ( U S)7I5- If, however, an exhibit be referred to as containing certain necessary particulars of the plaintiff's case which are not fully stated in the bill, and the exhibit does no}; contain the particu- lars, the discrepancy may be fatal to the bil L Little -v Snedecor, 52 Ala 167 And the court will not look to an exhibit for the purpose of contradict- ing the bil L Holman v Patterson, 29 Ark 357 2 Caton v Willis, 5 Ire d E Q ( N Car) 335 ; Electrolibration Co v Jackson, 52 Fed Rep 773; Ramsey v Temple, 3 Lea (Tenn) 252, where the court condemned the practice of re- ferring to voluminous records in other causes as exhibits; on which point see also Graham v Dahlonega Gold Mi N Co, 71 Ga 296 See further, in support of the text, Hastings v Belden, 55 Vt 273; Pacific RCo v Missouri Pac RCo, in U S 505; Pomeroy v Fullerton 113 Mo 440; Guadalupe County v John- ston, i Tex Civ App 713 3 St Louis v Kn App 104 U S 658 See article DEFINITENESS AND CERTAINTY IN PLEADING S 4 Jones v Cowles, 26 Ala 612; Rice v Merrimack Hosiery Co, 56 N H 114; Wright v Hicks, 15 Ga 160 See also Story E Q PL, 241 5 An allegation on information and belief, in order to be sufficient, must positively charge the fact, as, for in- stance, that the plaintiff is informed and believes, and therefore avers, etc, Read v Walker, 18 Ala 332, where it was said that as to facts not within his knowledge it would be impossible for a conscientious complainant to aver them otherwise; Nix v Winter, 35 Ala 309; Lucas v Oliver, 34 Ala 626; Ewing v Duncan, 8r Tex 230; Messer v Storer, 79 Me 512; Leaven- worth v Pepper, 32 Fed Rep 718; Wells v Bridgeport Hydraulic Co, 30 Con N 316 See also Noston v Woods, 5 Paige ( N Y) 260; Kelly v Allen, 34 Ala 671; Ex p Reid, 50 Ala 439; Hyrer v Lambert, 37 W Va 26; Huntington v Saunders, 14 Fed Rep 907; Grim v Wheeler, 3 Ed W C H ( N Y) 334, and the cases cited in the following not e In Injunction Bills averments on in- formation and belief are generally insufficient. Farland v Wood, 35 W Va 458; Chesapeake, etc, RCo v Huse, 5 W Va 576; Ewing v Duncan, 81 Tex 230; Brooks v O'Hara, 8 Fed Rep 529; Campbell v, Morrison, 7 Paige ( N Y) 157 See also Hunting- ton v Saunders, 14 Fed Rep 907; Leavenworth v Pepper, 32 Fed Rep 718 6 Campbell v Paris, etc, RCo, 71 111 6 N See also Aiken v Ballard, Rice E Q ( S Car) 13 7 Messer v Storer, 79 Me 512; Robinson v Robinson, 73 Me \~n;Ex 8 Bills with a Double Aspect, and Inconsistency Double Aspe Ct If the plaintiff is in doubt whether upon the case stated in the bill he is entitled to one kind of relief or to another, he may frame the prayer for relief in the alternative so that the court may grant the particular relief to which he is entitled upon the facts state d 1 P Reid, 50 Ala 439; Nix v Winter, 35 Ala 309; Lucas z Oliver, 34 Ala 626; Quinn v Leake, I Tenn C H 67; Win- ham v Crutcher, 2 Tenn C H 535; Walton -v Westwood, 73111 125, hold- ing that a demurrer admits the fact that the plaintiff is so informed and does so believe, but not that such in- formation is true; LongeSt Kennedy, 2 Bibb (Ky) 607, holding that an al- legation of information and belief did not authorize a decree pro confesso against the defendant, approved in McDowell v Graham, 3 Dana (Ky) 73, which distinguished Neal z Keel, 4 TB Mo N (Ky) 162 It is not a Sufficient Averment of a fact to state that the plaintiff "is so informed," Uxbridge v Staveland, I Ve S 56; Cameron v Abbott, 30 Ala 416; or to say that defendant alleges and the plaintiff believes a statement to be true, Egremont v Cowell, 5 Beav 620; or that the defendant sets up certain pretenses, followed by a charge that the contrary of such pre- tenses is the trut H Flint v Field, 2 AnstR54 An allegation that the plaintiff is " advised and believes " is not suffi- cient.

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(Ala) 144, it was said Post Date: Wed, 30 Jul 2008 9:51:48 +0000
Jones v Cowles, 26 Ala 612 An allegation that the petitioner is " advised " that he has a good defense to a claim upon which judgment was rendered is not a sufficient allegation that he has such a defens e Jeffery v Fitch, 46 Con N 601 An allegation in a bill that the de- fendant claims to have been a partner of his deceased brother, whose widew denies it, and that the plaintiff does not know whether the brothers were part- ners or not, is not a sufficient averment of a partnershi P Guyton v Flack, 7 Md 398 In a bill in equity seeking a new trial at law an averment that plain- tiffs "are of opinion" that the note upon which the judgment was render- ed was altered after it was given was held too vague and indefinite to au- thorize a decre e Carter v Lyman, 33 Mis S 171 I Story E Q PL, 42; Fields v Helms, 70 Ala 460; Adams v Sayre, 70 Ala 318; Polhemus v Emson, 29 N J E Q 583; Colton v Ross, 2 Paige ( N Y) 396; Wilhelm's Appeal, 79 Pa St 120; Smith -v Hinson, 4 Heis K (Tenn) 250; McConnell z/Mc Connell, ii Vt2go; Kilgour v New Orleans Gas- LightCo, 2 Woods (U S)i44; Hardin v Boyd, 113 U S 756; Black v Henry g Allen Co, 42 Fed Rep 623; Wilkin- son -v Dobbie, 12 Blatchf (U S)3O2; Bagot v Easton, 7 C H Div I See also Collins -v Knight, 3 Tenn C H 183; Merriman -v Lacefield, 4 Heis K (Tenn) 217; Lloyd v Brewster, 4 Paige ( N Y)54i; Robinson v Rob- inson, 73 Me 170; Foster v Cook, i Hawks (N Car) 509; Townshend v Duncan, 2 Bland (Md) 50; Hoxie v Carr, i Sum N (U S) 173 Relief against One or Another Defend- ant. In Thomason v Smithson, 7 Port. (Ala) 144, it was said that a bill may be framed in the alternative ask- ing relief against A if he has author- ized B to collect money due by judg- ment, and against B if he has collected money without authorit Y Compare Clark v Rivers, L R5 E Q 91 Delivery of Property or Lien Thereo N A bill may be filed in a double aspect, either seeking to procure a specific de- livery, of property or to enforce a sup- posed lien upon it.

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Lucas v Oliver, 34 Ala Post Date: Wed, 30 Jul 2008 9:41:43 +0000
Murphy v Clark, i Smed M (Mis S) 221; Baines v M'Gee, i Smed M (Mis S) 208 Discharge or Redemption of Mortgag e A mortgagor may file a bill averring full payment of the mortgage debt, and yet offering to pay any balance that may be found due on the settle- ment of the account, and praying fora cancellation of the mortgage or for an account and redemptio N Fields v Helms, 70 Ala 460 Contract or Resulting TruSt In Stein v Robertson, 30 Ala 286, it was held that a bill filed with a double aspect, seeking to establish for an infant plaintiff either a partnership interest in certain waterworks under a contract made by his father for his benefit, or a resulting trust on account of the in- vestment of his money in said water- And he may aver facts of a different nature which will equally support his application, where the title to relief will be the same in either cas e 1 Bills of this description are termed bills with a double aspe Ct 2 works by his father as his guardian, was not obnoxious to the charge of repugnanc Y Kescission or Lie N In Hardin v Boyd, 113 U S 756, it was held that a bill may be framed with a prayer for the cancellation of a contract for the sale of land on the ground of fraud and for an accounting between the parties, and in the alternative for a decree which, without disturbing the contract, will give a lien on the lands for the unpaid purchase mone Y Rescission or Specific Performanc e But in St Louis, etc, RCo v Terre Haute, etc, RCo, 33 Fed Rep 448, it was held that a bill to annul a con- tract for fraud or illegality, and to specifically enforce it if the court shall hold that it is valid, is fatally defectiv e See also Pensenneau v Pensenneau, 22 Mo 27; Lamon v McKee, 18 d C 446; Mills v Metcalf, i A K Marsh (Ky) 477 And in Shields v Barrow, 17 How (U S) 130, which was a suit to set aside an agreement on the ground of fraud, an amendment to the bill so as to pray for specific per- formance was not allowe d Inconsistent Relief Affirming and Reptidiating Transactio N A plaintiff cannot treat a sale of goods to the defendant as valid by proceeding against him as a judgment creditor under a judgment recovered for the price of the goods, and in the same bill repudiate the sale on the ground of fraud, and seek a recovery of the specific articles, or the proceeds there- of, in the hands of another defendant to whom they had been assigned for the payment of antecedent debt S Lloyd v Brewster, 4 Paige ( N Y) 541 Under a bill which specifically asks the cancellation of a mortgage on the ground that it was given to secure a debt founded on an illegal considera- tion, the plaintiff cannot have a decree establishing the mortgage and allow- ing him to redeem; nor can the bill be filed with a double aspect asking either cancellation or redemption, especially where there is no averment of igno- rance of facts or of a necessity for a discover Y Micou v Ashurst, 55 Ala 607 Legal or Equitable Relief A bill cannot ask for equitable relief and in the alternative for legal relief Cher- okee Nation v Southern Kansas RCo, 135 U S 641 See also Edwards v Edwards, Ja C 335 1 Story E Q PL, 254; Gerrish v Towne, 3 Gray (Mas S) 82; Robinson v Robinson, 73 Me 170; Cook v Bronaugh, 13 Ark 183; Fisher v Moog, 39 Fed Rep 665; Shipman v Furniss, 69 Ala 555 See also James v Kennedy, 10 Heis K (Tenn) 607; Rapier v Gulf City Paper Co, 69 Ala 476 If a plaintiff seeks to set aside a deed upon the ground of fraud and imposition and undue influence, he may charge insanity in making the deed, and he may also charge great weakness and imbecility of mInd Bennet v Vade, 2 At K 325 Plaintiff Ignorant of Fact S So also, where a plaintiff is entitled to relief of some kind, upon the general facts stated in his bill, or if the nature of the relief to which he is entitled depends upon the existence or nonexistence of a particular fact or circumstance which is not within his knowledge, but which is known to the defendant, he may allege his ignorance as to such fact and call for a discovery thereof; and in such case he may also frame his prayer in the alternative, so as to obtain the proper relief, accord- ing as the fact may appear at the hearing of the caus e Lloyd v Brew- ster, 4 Paige ( N Y) 541; Caldwell v King, 76 Ala 149; Wilkinson v Dob- bie, 12 Blatchf (U S) 302 But un- less he is actually ignorant of the facts, and so alleges, he cannot have relief upon different statements of fact which are inconsistent with each otheRCollins v Knight, 3 Tenn C H 183; Micou v Ashurst, 55 Ala 607 In Kentucky, the code provides that a party may aver alternatively the existence of one or another fact, if he states that one of them is true and that he does not know which of them is tru e Peck v Price (Ky , 1887), 4 S W Rep 306 2 Daniell C H Pr (6th A M e d) 384: Inconsistenc Y The rule of pleading which permits a plaintiff to frame his bill with a double aspect does not authorize the intro- duction therein of two or more inconsistent claims to relief founded on different states of fact, any of which, if true, would entitle the plaintiff to relief of a wholly different characTer 1 But each alternative must be the foundation for like relief or for relief of the same character, 2 and must not be open to different Zell Guano Co v Heatherly, 38 W Va 409 A bill not originally framed in a double aspect may be so amended as to be of that characTer Hardin v Boyd, 113 U S 756; Smith v Hinson, 4 Heis K (Tenn) 250 But not where the alternative statements thus made are inconsistent with each otheRShields v Barrow, 17 How (U S) 130; St Louis, etc, RCo v Terre Haute, etc, RCo, 33 Fed Rep 448; Tatum v Walker, 77 Ala 563; Eufaula v McNab, 67 Ala 589; Bosley v Phil- lips, 3 Tenn C H 649 See also article AMENDMENTS, Vo L I, p 476 1 DemurreRThe bill is demurrable if in either alternative the plaintiff is not entitled to any relief, or is entitled to relief essentially different in char- acTer Seals v Robinson, 75 Ala 363; Micou v Ashurst, 55 Ala 607; Bynum v Ewart, 90 Tenn 655; Hart v Mc- Keen, Wal K (Mich) 417 In Shipman v Furniss, 69 Ala 555, the bill contained two distinct and independent grounds on which the claim to relief was based, and the ma- jority of the court were of opinion that if either ground was sufficient, its force was not impaired by the fact that it was joined cumulatively with another alleged ground which of itself could not maintain the equity of the bill, and that a demurrer was properly overrule d Wairer of Objection Electio N In American Box Mac H Co v Crosman, 57 Fed Rep 1021, affirmed in 61 Fed Rep 883, the bill prayed expressly for a specific performance of a contract therein set out, and also contained some expressions looking to relief, as on a bill for infringement of a patent. The defendant made no objection, but apparently accepted the bill as one for a specific performance, and the court felt bound to treat it in that light, in- stead of dismissing the bill, upon the ground that the defendant was entitled to make that electio N See also Brom- berg v Heyer, 69 Ala 22 In Murrell v Jones, 40 Mis S 565, it was held that a special demurrer will lie to a bill which is inconsistent and contradictory in its statements, and that the court will compel the plaintiff to elect on which position he will rel Y 2 Eufaula v McNab, 67 Ala 588; Ward v Patton, 75 Ala 207; Leh- man v Meyer, 67 Ala 396; Seals v Robinson, 75 Ala 363; Caldwell v King, 76 Ala 149; Rapier v Gulf City Paper Co, 69 Ala 476; Gordon v Ross, 63 Ala 363; Robinson v Robin- son, 73 Me 170; Leonard v Cook ( N J, 1890), 20 At L Rep 1085; Lloyd v Brewster, 4 Paige ( N Y) 541; Brown v Bedford City Land, etc, Co ( Va, 1895), 20 S E Rep 968; Amer- ican Box Mac H Co v Crosman, 57 Fed Rep 1021, affirmed in 61 Fed Rep 888; Shields v Barrow, 17 How (U S) 130 The Test in all such cases is said to be, if a decree pro confesso should be taken, could the-court, looking merely at the statements of the bill and the confession, grant any certain relief to the plaintiff? Moog v Talcott, 72 Ala 213; Gordon v Ross, 63 Ala 366; Rives v Walthall, 38 Ala 333; Charles v Dubose, 29 Ala 367; Caldwell v King, 76 Ala 149 Disjunctive Statement S Where the equity of a bill rests on the existence of one of two facts which are stated disjunctively, and one of which is not sufficient to uphold the bill, the aver- ment is insufficient. Lucas v Oliver, 34 Ala 626; David v Shepard,4O Ala 587; Andrews v McCoy, 8 Ala 920, holding, however, that if the objection is not taken in the court below, it cannot be raised for the first time on appea L In Brooks v O'Hara, 8 Fed Rep 529, a bill was held demurrable for indefiniteness where it alleged that a decree which it sought to set aside was obtained either by mistake of all parties, or by deception practised upon the complainant, or by the collusion The rule in question contemplates an identity in the immedi- ate relief sought ; it is not sufficient that in every aspect of the bill the relief is remotely the sa Me 2 9 Multifariousnes S See article MULTIFARIOUSNES S 10 Offers in the Bill In Genera L Upon the principle of equity that a person seeking relief must himself do what is equitable it is required, in some cases, that a person should, by his bill, offer to do whatever the court may consider necessary to be done on his of the respondent with third partie S See also Rvves v Ryves, 3 Ve S 343 Compare Williams v U S, 138 U S 517 See generally article DEFI- NITENESS AND CERTAINTY IN PLEAD- ING S t A bill cannot be sustained which charges that the defendant holds the title either by a deed that is fraudu- lent or by a mortgage, and asks a decree in the alternativ e Robinson v Robinson, 73 Me 170 Bescission or Enforcement.

Autor of the post: Undefined

What we do decide is Post Date: Wed, 30 Jul 2008 9:22:03 +0000
Whether a creditor may file a bill asking to have a mortgage executed by his debtor declared fraudulent and void, or, if valid, foreclosed for his benefit, qucer e Rives v Walthall, 38 Ala 329, correcting the head-note to Walthall U Rives, 34 Ala 91 In Crawford v Kirksey, 50 Ala 590, it was held that a creditors' bill could be filed in the alternative in one aspect assailing conveyances as fraud- ulent, and in another asserting their validity, and that they constituted a general assignment enuring to the equal benefit of all creditor S But that case was overruled in Lehman v Meyer, 67 Ala 396, which was adhered to in Moog v Talcott, 72 Ala 213 See also Heyer v Bromberg, 74 Ala In Micou v Ashurst, 55 Ala 607, a bill was held demurrable where it sought in one aspect to have a mort- gage canceled because executed to secure a debt founded on an alleged illegal consideration, and in the other to establish the mortgage and redeem the mortgaged premise S In Eufaula v McNab, 67 Ala 589, a like repug- nancy was declared to exist in a prayer for the enforcement of a vendor's lien as a valid obligation, and a proposed amendment to the bill praying for a rescission and cancellation of the con- tract of sale as being void for ultra vire S The same principle was recog- nized in McCosker v Brady, i Barb C H ( N Y) 329, where it was adjudged that the plaintiff could not seek to have a will declared void, on the one hand, or, on the other, valid, and to have the lands devised by the will partitioned, by decree of the court, among those entitle d So a bill can- not pray to have a mortgage set aside and canceled as inoperative and void, or in the alternative for an account and redemptio N Tatum v Walker, 77 Ala 563 1 Caldwell v King, 76 Ala 149; Gordon v Ross, 63 Ala 363 See also Adams v Sayre, 70 Ala 318 2 Thus, although the ultimate pur- pose of the bill in each aspect is the collection of the plaintiff's demand and of the defendant's property, all the alternatives must exhibit the same foundation and source of this remote relief Moog v Talcott, 72 Ala 210, cited with approval in Caldwell v King, 76 Ala 149, where the court said: " We do not mean to be understood as hold- ing that a creditor cannot file a bill with a double aspect in one aspect, attacking a deed made by his debtor for the fraud in fact of both parties to the transaction; and in the other, at- tacking it as voluntary, in whole or in part. The relief in such cases is the same, although there may be a differ- ence in extent. What we do decide is, that a creditor cannot file a bill in the alternative by one alternative statement charge actual fraud by both grantor and grantee, and for this rea- son, seek to have a conveyance of his debtor declared invalid, and to have the property sold for the satisfaction of his demands; and by the other, ad- mit the adequacy of the consideration, and without alleging the participa- tion of the grantee in the fraudu- lent intent of the grantor, seek to condemn the unpaid purchase mon- e Y" part towards making the decree which he seeks just and equitable with regard to the other parties to the suit.

Autor of the post: Undefined

Where a bill is filed Post Date: Wed, 30 Jul 2008 9:11:43 +0000
1 1 Oliver v Palmer, n Gill J (Md) 446 ; Deans U Robertson, 64 Mis S 195, a bill to cancel a contract on the ground of illegality; Tucker v Holley, 20 Ala 426 See also Davis v Gaine S 104 U S 386; Robinson v Iron RCo, 135 U S 522; and the cases cited in the following note S Such offer is usually made in the prayer for relief See II I 9 The Prayer for Relief, supr A Bill to Declare Absolute Deed a Mort- gag e A plaintiff seeking to have a deed absolute in form declared a mortgage should offer to pay the debt secured by the mortgage, the exist- ence of which he assert S Bateson v Choate, 85 Tex 239 Bill to Enjoin Tax Sal e Where a plaintiff seeking to restrain the sale of his land for taxes denies the validity of a particular tax, without giving a reason for contesting it, his bill ought to contain an offer to pay it. Connors v Detroit, 41 Mich 128 Indemnity in Suit on Lost Instrument. Where a bill is filed setting up a lost negotiable note, and praying a decree against the makerand indorsers forthe debt, etc, it is safer, and more in con- formity with what seems to be the general practice, to offer in the bill to give a proper indemnity under the direction of the court.

Autor of the post: Undefined

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