Laws

It usually consists Post Date: Wed, 30 Jul 2008 13:52:02 +0000
2 Story E Q P I, 27; Clayton v Winchelsea, 3 Y Col L 683; Wright v Dame, 22 Pic K (Mas S) 59; Cowles v Buchanan, 3 Ire d E Q (N Car) 374 Compare Rorback v Dorsheimer, 25 N J E Q 516 The Title or Caption of a bill is no part of it, and cannot be regarded as a statement of fact S Edney v King, 4 Ire d E Q (N Car) 465; Spalding v Dodge, 6 Mackey ( d C) 289 The Prayer for Relief cannot enlarge the stating part of the bil L White v Jeffers, Clarke C H ( N Y) 208; Bush- nell v Avery, 121 Mas S 148 In the latter case it was held that if the stating part shows no ground for an account, the prayer for an account does not entitle the plaintiff to main- tain his bill on that groun d 3 See Iv et se Q, infr A 4 Story E Q PL, 29, where the author says that " the usual form of the charge is that the defendants, combining and confederating together, and with divers other persons as yet 6 The Charging Part. The fifth part of a bill is what is com- monly called the charging part. It usually consists of some alle- gation or allegations setting forth the matters of defense, or ex- cuse, 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 offense or excus e 1 It is sometimes also used for the purpose of obtaining a discovery of the nature of the defend- ant's case, or to put in issue some matter which it is not for the interest of the plaintiff to admit, 2 for which purpose the charge of the pretense of the defendant is held to be sufficient ; 3 but as the equity of the plaintiff's case should ordinarily be fully averred in the stating part of the bill, 4 the charging part of the bill is often omitted, 5 and does not seem indispensable in any cas e 6 7 Jurisdiction Claus e The sixth part of the bill is what is called the jurisdiction clause, and is intended to give jurisdiction of the suit to the court by a general averment that the acts complained of are contrary to equity, and tend to the injury of the plaintiff ; 1 Story E Q P L, 3i;Freichnecht v Meyer, 39 N J E Q 551; Marshall v Rench, 3 De L C H 239; Townshend v Duncan, 2 Bland (Md) 50; M'Crea v, Purmort, 16 Wen d ( N Y) 460; Staf- ford v Brown, 4 Paige ( N Y) 88 Thomas v Austin, 4 Barb ( N Y) 265, is a case which furnishes one of the few instances in which the statement of a fact is legitimately reserved for the charging part of the bil L In a Sworn Bill it is equally perjury for the plaintiff knowingly to make a false charge or averment in the charg- ing part as to make a false statement in the stating part of the bil L Smith v Clark, 4 Paige ( N Y) 368 Form of Charging Fart.

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3 8 The Interrogating Part Post Date: Wed, 30 Jul 2008 13:41:10 +0000
The common formulary is: " That the said defend- ant sometimes alleges and pretends, etc [and stating the facts supposed, as, for example, that the said A B made a will which was a valid disposition of the said real estate, etc], and at other times he alleges and pretends that, etc, etc; whereas your orator chargeth the truth to be (or the con- trary thereof to be the truth)," etc, etc Story E Q PL, 31, not e 2 Story E Q PL, 31; Freichnecht v Meyer, 39 N J E Q 551 3 Story E Q P I, 31; Partridge v Haycraft, n Ve S JR575; Gregory v Molesworth, 3 At K 626 4 Story E Q PL, 32 et se Q See The Stating Part, II I 4, supr A In Wright v Dame, 22 Pic K (Mas S) 59, the court in answer to the argu- ment that a defect in the stating part of the bill may be supplied, or the meaning of the stating part may be explained by averments in the charg- ing part said that " the defendants are not bound to answer any averment not contained in the stating part of the bil L" SeealsoCowles z/ Buchanan, 3 Ire d E Q (N Car) 374 But this strictness was thought to be extreme in Savannah, etc, RCo v Lancaster, 62 Ala 555 An allegation that the defendant sets up certain pretenses, followed by a charge that the contrary of such pretenses is the truth, is not a sufficient averment of the facts which make up the counter-statement. Story E Q PL, 32; Flint v Field, 2 AnstR543; Houghton v Reynolds, 2 Hare 264; Rice v Merrimack Hosiery Co, 56 N H 114 5 Story E Q PL, 33; Cooper E Q PL i I In the Federal Courts Equity Rule 21 provides that the plaintiff may, at his option, omit the charging part of the bil L In Alabama the charging part is ex- pressly dispensed with by section 3422 of the cod e In New Hampshire it may be omitte d Chancery Rule 3, 38 N H 605 In Maine it must be omitte d Chan- cery Rule i, 37 Me 581 6 Story E Q PL, 33; Cooper E Q PL, ii ; Townshend v Duncan, 2 Bland (Md) 50 and that he has no remedy, or not a complete remedy, without the assistance of a court of equit Y 1 But this clause is wholly unnec- essary, for it will not of itself give jurisdiction to the court ;* and, like the confederacy clause, its insertion in the bill is sometimes prohibited or declared unnecessary by statute or rule of court. 3 8 The Interrogating Part in Genera L The seventh part of the bill is the interrogating part, which prays that the parties com- plained of may answer all the matters contained in the former parts of the bill, not only according to their positive knowledge, but also according to their remembrance, information, and be- lief 4 It is not unusual to add to the general requisition that the defendant shall answer the contents of the bill a repetition, by way of interrogatory, of the matters most essential to be answered, adding to the inquiry after each fact an inquiry of the several circumstances which may be attendant upon it and the variations to which it may be subject, with a view to prevent evasion and compel a full answeR5 But as the defendant ought to answer fully and explicitly, though not specially interrogated, 6 the use of these interrogatories is not indispensable, 7 and is sometimes regu- 1 Story E Q PL, 34, and note, where the following is stated to be the usual formulary : " All which actings, doings, and pretenses (of the said con- federates) are contrary to equity and good conscience, and tend to the man- ifest [wrong] injury and oppression of your orator in the premise S In ten- der consideration whereof, and foras- much as (or, for that) your orator is (entirely) remediless in the premises, according to (or by) the strict rules of the common law, and can only have relief (or is relievable only)ina court of equity, where matters of this nature are properly cognizable (and reliev- able).

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Kisor v Stancifer, Wright (Ohio) Post Date: Wed, 30 Jul 2008 13:29:40 +0000
To the end therefore," etc 2 Story E Q PL, 34; Cooper E Q PL, ii ; Marshall v Rench, 3 De L C H 239 3 In the Federal Courts its use is made optional by Equity Rule 21 Gage v Kaufman, 133 U S 471 In New Hampshire Chancery Rule 3, 38 N H 605, renders it unnecessar Y In Tennessee it must be omitte d Code Tenn, 5057 In Alabama it is expressly disallowe d Code Ala, 3422 4 Story E Q PL, 35 5 Story E Q PL, p 35; Romaine v Hendrickson, 24 N J E Q 231; Miles v Miles, 27 N H 445; Eberly v Groff, 21 Pa St 251 6 See article ANSWERS IN EQUITY PLEADING, Vo L I, p 873 Sufficient General Interrogatorie S A prayer that each of the defendants may be required to answer unto the premises, is a good general interroga- tor Y McClaskey v Barr, 40 Fed Rep 559 A prayer, in a bill, that the defend- ant make answer to the matters al- leged therein, is a good general inter- rogatory and a sufficient compliance with a rule requiring bills to conclude with a general interrogatory, although it is coupled with a prayer for process, and is followed by a prayer for speci- fic and general relief Ames v King, 9 Allen (Mas S) 258 In Romaine v Hendrickson, 24 N J E Q 231, the bill contained a prayer for an answer to interrogatories an- nexed to it by reference; and it was held that such interrogatories were properly regarded as incorporated in the bil L See further, for a sufficient general interrogatory, Methodist Episcopal Church v Jaques, i John S C H ( N Y)6 S "In the Ancient Forms the interro- gating part of the bill immediately preceded the prayer for process, and was inserted under the form of a prayer, that the party complained of might answer the matter set forth in the bil L" Ames v King, 9 Allen (Mas S) 258 7 Story E Q PL, gg 35, 38; Cooper E Q PL 12: Langdell E Q PL (2d e d) Special Interrogatorie S When special interrogatories are used they must be founded upon the matter stated or charged in the former part of the bill, 2 and cannot be considered more extensive than the propositions out of which the interrogatories aris e 3 Hence, if there is nothing in the prior part of the bill to warrant an in- terrogatory, the defendant is not bound to answer it. 4 Yet if he 55 64; Miles v Miles, 27 N H 445; Eberly v Groff, 21 Pa St 251; Marshall v Rench, 3 De L C H 239 In Ohio interrogatories were not usual, and were deemed unnecessary, except in cases of fraud or where a discovery was sought. Kisor v Stancifer, Wright (Ohio) 323 See also Cadwallader v Granville Alex- andrian So C, ir Ohio 292 In Vermont the court expressed an unwillingness to dispense with the special interrogatories in any cas e Shed -v Garfield, 5 Vt 41 1 See Daniell C H Pr (6th A M e d) 374, not e United States Court S In the federal courts provisions relating to interrog- atories are contained in Equity Rules 40, 41, 42, 43, and amendments there- t O Beach Mo d E Q Pr, Appendix iv ; Foster Fed Pr (2d e d) Appendix ii I See also Wilson v Stolley, 4 McLean (U S) 272; McClaskey v Barr, 40 Fed Rep 559; Chicago, etc, RCo v Macomb, 2 Fed Rep 18 In Alabama a rule in chancery re- quires that the "complainant shall make a note in writing at the bottom of the bill as to the particular state- ments or interrogatories by number which he desires the defendant to an- swer; and the answer need not go be- yond such requisitions, except for such defendant's own protectio N" The rule is complied with by a foot-note requiring answers to the allegations in "paragraphs numbered from one to five, inclusive," Paige v Broad- foot, 100 Ala 610; or one which re- quires the defendant to a bill thus di- vided into paragraphs "to answer all the statements of the above bill," Mc- Kenzie v Baldridge, 49 Ala 564 The omission of the foot-note is not a mere formal defect which is waived if not objected to in the lower court; and if it be wanting, the bill is not in a condition for a decree pro confesso without proof O'Neal v Robinson, 45 Ala 526 See also Sprague v Tyson, 44 Ala 338 But if the defendant files a full an- swer with a demurrer, on the ground of the omission of the foot-note, and then goes to a final hearing on the bill and answer and an agreed state of facts, he will not be permitted to take advantage of the defect either on the hearing or on appea L Martin A Hew- itt, 44 Ala 418, holding that the omis- sion of the foot-note is an amendable defe Ct See Winter v Quarles, 43 Ala 692 In Thornton v Sheffield, etc, RCo, 84 Ala 109, it was held that the chancery rule above quoted has no application to bills containing no in- terrogating part, and, " like the forms of the complaints given in the code, is at most director Y" In Massachusetts, since the passage of Acts 1883, C 22, 10, if the bill asks for relief the answer cannot be sworn to, and discovery can only be had by interrogatories to the de- fendant as in actions at la W Amy v Manning, 149 Mas S 487 2 Cooper E Q P I 12; Story E Q P I, 36 As to the degree of precision which is sufficient, see Trustees v Grubb, 5 Phi La (Pa) 41 3 Cooper E Q P I 12: Story E Q PL, 36; Muckleston v Brown, 6 Ve S JR62; Att'y Gen'l z/Whorwood,! Ve S 538; Bullock -v Richardson, n Ve S JR376; Fuller v Knapp, 24 Fed Rep 100; Woodcock v Bennet, i Co W ( N Y) 711; James v M'Kernon, 6 John S ( N Y) 543; Kisor -v Stancifer, Wright (Ohio) 323 4 Cooper E Q P I 12 ; Fuller v Knapp, 24 Fed Rep 100; Grim v Wheeler, 3 Ed W C H ( N Y)334, where the allegations were not sufficiently positive; Cowles v Buchanan, 3 Ire d E Q (N Car) 374 Defects in the Stating or Charging part of the bill cannot be supplied by inter- rogatorie S Cowles v Buchanan, 3 Ire d E Q (N Car) 374; Parker v Carter, 4 Munf ( Va) 273 See also Nolley v Rogers, 22 Ark 227 Com- does answer it, and the answer is replied to, the matter of the in- terrogatory is deemed to be put in issue and the informality is cure d 1 And a variety of questions may be founded on a single fact stated or charged, if they are relevant to it, 2 and under an allegation of a fact, interrogatories may be put as to the incidental circumstances, although they may not as to any distinct subje Ct 3 9 The Prayer for Relief tf IN GENERA L The eighth part of the bill is the prayer for relief The usual course is for the plaintiff in this part of the bill to make a special prayer for the particular relief to which he thinks himself entitled, and then to conclude with a prayer of general relief, at the discretion of the court.

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2 Driver v Fortner, 5 Post Date: Wed, 30 Jul 2008 13:12:35 +0000
4 Waivers and Offer S Where the plaintiff desires to waive the benefit of a penalty or forfeiture so as to have a discovery to which he would not otherwise be entitled, or where he desires to waive an answer under oath, it is usual to insert this waiver in the prayer for relief ; 5 and where, as a condition precedent to relief, it is required that the plaintiff shall offer to do equity, such offer is made in this part of the bil L 6 Entire Omission of PrayeRWithout a prayer for relief, either general or special, no decree can be rendered in favor of the plaintiff, 7 pare Lingan v Henderson, i Bland (Md) 249 Description of Exhibit S Exhibits ought to be sufficiently described in the interrogatories, so as to enable the adverse party to know what is in- tended to be proved and to put him on all due inquir Y Troup v Haight, 6 John S C H ( N Y) 335, holding, how- ever that the defendant is not entitled to copies of the exhibit S 1 Story E Q P I, 36; Att'y Gen'l v Whorwood, I Ve S 539 2 Cooper E Q P I 12; Story E Q P I, 36; Faulder v Stuart, u Ve S JR301; Bullock v Richardson, u Ve S JR375- 3 Story E Q P I, 37; Fuller v Knapp, 24 Fed Rep 100 See also Uhlmann v Arnholt, etc, Brewing Co, 41 Fed Rep 369 If the Defendant Admits the Main Fact charged in the bill it is not necessary for him to answer as to other matters which are merely stated as evidence of that fa Ct Mechanics' Bank v Levy, 3 Paige ( N Y) 606 When Defendant need not AnsweRSee, as to certain matters which the defendant is not bound to disclose in his answer, the article ANSWERS IN EQUITY PLEADING, Vo L I, p 874 4 Story E Q P I , 40 Federal Court S United States Equity Rule 21 provides that "the prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shallcontain a prayer for general relief" If the prayer for general relief be omitted it may be added by amendment. Adams v Keh- lor Milling Co, 36 Fed Rep 212 The Usual Form of the general prayer is, "And that your orator may have such further and other relief in the premises as the nature of the case shall require, and as to your honors shall seem meet;" or " that your orator may be further and otherwise relieved in the premises according to equity and good conscienc e" Story E Q P I, 40, not e 5 DaniellC H Pr (6th A M e d)387, to the first proposition in the text; Foster Fed Rep (2d e d) 84, to the second proposition in the text, where the author says, however, that the waiver of a sworn answer is "more frequently in the prayer of proces S" See Gove v Pettis, 4 Sandf C H ( N Y) 403; Fisher v Moog, 39 Fed Rep 665 6 DaniellC H Pr (6th A M e d) 385 See Offers in the Bill, Iv IO, infr A 7 Driver v Fortner, 5 Port (Ala) 9; Dews v Cornish, 20 Ark 332; Perry v Perry, 65 Me 399 See also Eaton v Breathett, 8 Humph (Tenn) 534 Defendant not Sufficiently Designate d In a bill to foreclose a mortgage, a unless the objection be waived by the Defendant 1 b FOR SPECIAL RELIEF ALON e Where there is a prayer for special relief, but no prayer for general relief, no relief can be granted beyond that specially prayed, unless the plaintiff amends his bil L 2 C FOR GENERAL RELIEF ALON e Under the prayer for gen- eral relief, without a prayer for special relief, the particular relief which the case requires may at the hearing be prayed at the bar, provided it is agreeable to the case made by the bil L 3 prayer for relief and discovery against " said defendants hereinafter named " can refer only to the defendants al- ready mentioned, and not to a defend- ant named merely in the following prayer for proces S Wheeler, etc, Mfg Co v Filer, 52 N J E Q 164 1 Smith v Smith, 4 Ran d ( Va) 95, where it was held that the objection was not available to the defendant after he had answered on the merits and submitted to the decree of the court. 2 Driver v Fortner, 5 Port (Ala) 9; Dews v Cornish, 20 Ark 332; Townshend v Duncan, 2 Bland (Md) 50; Lingan v Henderson, i Bland (Md) 252; Mundy's Landing, etc, Turnpike Co v Hardin (Ky, 1892), 2o S W Rep 385; Adams v Kehlor Milling Co, 36 Fed Rep 212, where an amendment was allowed; McCrum z/Lee,38 W Va, 591, where an amendment was also allowed; Halsted v Meeker, 18 N J E Q 136, holding that if the facts set forth in the bill would not authorize other relief, an amendment would not be allowe d Laird v Boyle, 2 Wi S 431 Thus in Wyatt v Greer, 4 Stew P (Ala) 318, it was held that if a bill contains no prayer for general or spe- cial relief except for an injunction to retain a fund in the hands of the de- fendant, the plaintiff can have no relief by payment out of the fun d Belief of the Same General Character, but less extensive, may be granted, or the prayer may be amended, if neces- sar Y Camden Horse RCo v Citi- zens' Coach C O 31 N J E Q 525; Kupferman v McGehee, 63 Ga 251 Informal PrayeRWhere the prayer for relief is good in substance, but informal, the defect should be taken advantage of by demurrer, and the informality is waived by answerin g It is otherwise, however, where the prayer is so substantially defective that it does not appear what relief is sought.

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See United States Equity Rule Post Date: Wed, 30 Jul 2008 12:54:28 +0000
Kuchenbeiser v Beckert, 41 111 172 In that case the bill alleged that a decree was procured by fraud, and that it should be set aside, can- celed, and held to be void by the court, "as your orator and oratrix pray may be done;" and it was held that this prayer showed what relief was sought, and was merely informa L Although a bill prays for a "writ" of quia timet, yet if the prayer be such as is otherwise proper to a " bill " quia timet, and the proceeding is sufficient in other respects, the court may act upon it. Miller v Saunders, 18 Ga 492 3 Dodd z/ Benthal,4 Heis K (Tenn) 6ot; Grain v Barnes, i Md C H 156 Exception S An injunction will not ordinarily be granted under a prayer for general relief; it must be expressly praye d Story E Q PL, 41; Lewiston Falls Mfg Co v Franklin Co , 54 Me 402; Willett v Woodhams, i 111 App 411; Kelly v Payne, 18 Ala 371 (obiter); African M E Church v Conover, 27 N J E Q 157, holding, however, that the bill may be amende d Savory z/Dyer, Amb L 70, note; Wright v Atkyns, i Ve S B 314 See also Chicago, etc, RCo v Macomb, 2 Fed Rep 18 But a final injunction may perhaps be granted under the general prayeRWalker v Devereaux, 4 Paige ( N Y) 248; Thompson S Heywood, 129 Mas S 401; Wood v Beadell, 3 Si M 273 See also Blomfield v Eyre, 8 Beav 259; Paxton v Douglas, 8 Ve S JR520; Jack- son v Leaf, i J W 232; Clarke v Ormonde, Ja C 122; Reynell v Sprye, i De g, M g 690 A Writ ofne Exeat will not ordinarily be granted unless expressly prayed for in the bil L Story E Q PL, 41; Kelly v Payne, 18 Ala 371 (obiter). See United States Equity Rule 21, which requires a special prayer where a writ of ne exeat is desired " pending d FOR SPECIAL AND GENERAL RELIEF Any Appropriate Relief Where the plaintiff prays for special and also for general relief, if the special prayer is such that no relief can be granted under it, 1 the court may, under the prayer for general relief, 2 grant any proper relief consistent with the case made by the bil L 3 the suit.

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Bird, 8 Leigh ( Va) Post Date: Wed, 30 Jul 2008 12:43:03 +0000
" "But it is sufficient if the facts alleged in the bill show a proper case for the writ, and it may be granted in the decree under the prayer for general relief Or the facts may be shown and the writ applied for upon a petition presented in the case either before or after judgment or decre e" Per Sawyer, CJ, in Lewis v Shain- wald, 7 Saw Y (U S) 403 See Shain- wald v Lewis, 46 Fed Rep 839 Receiver S As to the necessity of a special prayer in order to authorize the appointment of a receiver, see article RECEIVER S 1 Defect in Special PrayeRRelief may be granted under the general prayer, regardless of any defect in the prayer for special relief Treadwell v Brown, 44 N H 551 If the prayer for special relief be so uncertain that no relief can be granted under it, the prayer for general relief is sufficient to entitle the plaintiff on the hearing to such relief as the facts alleged and proved may requir e Fisher v Moog, 39 Fed Rep 665 Improper PrayeRA bill is not de- murrable because of a prayer for im- proper specific relief, if it contains a prayer for general relief Mer- chants' Nat Bank v Hogle, 25 111 2 Formal Sufficiency of PrayeRIn a bill between partners, praying that the defendant be held to render an account of all moneys and effects of the firm received by him, and for all other matters relating to the concern, the last clause is equivalent to a prayer for general relief Miller v Lord, n Pic K (Mas S) N Where the bill prays for specific re- lief " and " for general relief, the court will not be limited to specific relief and relief of the same character, on the ground that the prayer for general re- lief i; conjunctively instead of disjunc- tively adde d Burnet v Boyd, 60 Mis S 627 But see Colton v Ross, 2 Paige ( N Y) 396; Dennis v Dennis, 15 Md 124 3 Alabama Shelby v Tardy, 84 Ala 327; Gonzales v Hukil, 49 Ala 260; Kirksey v Means, 42 Ala 426; May v Lewis, 22 Ala 646; Kelly v Payne, 18 Ala 371 ; Munford v Pearce, 70 Ala 452 Arkansa S Rogers v Brooks, 30 Ark 612; Kelly v McGuire, 15 Ark 555- Connecticut Enfield Toll Bridge Co v Hartford, etc, RCo, 17 Con N 42; Hart v Granger, i Con N 168 Georgia Marine, etc, In S Bank v Early, R M Charlt ( Ga) 279 Illinoi S Holden v Holden, 24 111 App 106; Merchants' Nat Bank v Hogle, 25 111 App 543; Cushman v Bonfield, 139 111 219 ; Davidson v Burke, 143 111 139; Walker v Con- verse, 148 111 622; Hopkins v Sne- daker, 71 111 449; Brown v Miner, 128 111 148; Isaacs v Steel, 4 111 104; Allen v Woodruff, 96 111 19 Indiana Hunter v McCoy, 14 Ind 528 Iowa Simplot v Simplot, 14 Iowa 449 KentucKy Bolware v Craig, Litt Se L Ca S (Ky)407; Repplier v Buck, 5B Mo N (Ky) 98; Oldham v Woods, 3 TB Mo N (Ky) 47; Prewit v Graves, 5 J J Marsh (Ky) 125 Louisiana Espinola v Blasco, 15 La An N 426 Marylan d Gibson v McCormick, 10 Gill J (Md) 66; Fitzhugh v Mc- Pherson, 3 Gill (Md) 408; Powell v Young, 45 Md 494; Grain v Barnes, I Md C H 156; Lingan v Henderson, I Bland (Md) 252; Dennis v Dennis, 15 Md 124; Wootten v Burch, 2 Md C H 198; Townshend v Duncan, 2 Bland (Md) 50 Massachusett S Thompson v Hey- wood, 129 Mas S 401; Nudd v Powers, 136 Mas S 273; Winslow v Nayson, 113 Mas S 411 ; Franklin v Greene, 2 Allen (Mas S) 519 Michiga N Dayton v Dayton, 6S Mich 437; Flanders v Chamberlain, 24 Mich 305 Mississipp I Barkwell v Swan, 69 Mis S 907; Burnet v Boyd, 60 Mis S 627 Missour I McGlothlin v Hemery, 44 Mo 350 Different Belief Relief may be granted under the general prayer different from that specifically prayed for when it is consistent New Hampshire Stone v Ander- son, 26 N H 522 New Jerse Y Graham v Berryman, 19 N J E Q 29; Annin v Annin, 24 N J E Q 184; Force v Dutcher, 18 N J E Q 405; Miller v Jamison, 24 N J E Q 41; Belleville Mut In S Co v Van Winkle, 12 N J E Q 333; Hill v Beach, 12 N J E Q 31 New York Brice v Brice, 5 Barb ( N Y) 533; Innes v Evans, 3 Ed W C H ( N Y) 454; Wilkin v Wilkin, I John S C H ( N Y) i N North Carolina Whitfield v Gates, 6 Jones E Q (N Car) 136 Ohio Miami Exporting Co v U S Bank, Wright (Ohio) 249; Webster v Harris, 16 Ohio 490 South Carolina Brown v M'Don- ald, i Hill E Q ( S Car) 297 Tennessee Arnold v Moyers, I Lea (Tenn) 315; Nolen v Woods, 12 Lea (Tenn) 615; Whitley v Davis, i Swan (Tenn) 333; Dodd v Benthal, 4 Heis K (Tenn) 601; Pillow v Pillow, 5 Yerg (Tenn) 420; Allum v Stockbridge, 8 Baxt (Tenn) 356 See also Quinn v Leake, i Tenn C H 67 Ver Mont Eureka Marble Co v Windsor Mfg Co, 47 Vt 430; Tar- bell v Durant, 61 Vt 519; Danforth v Smith, 23 Vt 247 VirginiaAnderson v DeSoer, 6 Gratt ( Va) 363; Raper v Sanders, 21 Gratt ( Va)6o; Shenandoah Valley RCo v Dunlop, 86 Va 346; James v Bird, 8 Leigh ( Va) 510 West VirginiaHall v Pierce, 4 W Va 107 United State S Mitchell v Moore, 95 U S 587; Walden v Bodley, 14 Pet (U S) 156; English v Foxall, 2 Pet (U S) 595; Tayloe v Merchants' f In S Co, 9 How (U S)3go; Moore v Mitchell, 2 Woods (U S) 483; Pat- rick v Isenhart, 20 Fed Rep 239; Omaha Horse RCo v Cable Tram- way Co, 32 Fed Rep 727; Chicago, etc, RCo v Macomb, 2 Fed Rep 18; Ficher v Moog, 39 Fed Rep 665; Tyler v Savage, 143 U S 98; Texas v Hardenber g 10 Wal L (U S) 68; Jones v Van Doren, 130 U S 684; Gormley v Clark, 134 U S 350; Watts v Waddle, 6 Pet (U S) 389; Adams v Kehlor Milling Co, 36 Fed Rep 212; Finley v Lynn, 6 Cranch (U S) 238 Illustration S For the relief obtain- able in particular cases, including the cases cited above, see article DE- CREE S Plaintiffs Admission S In Finley v Lynn, 6 Cranch (U S) 238, it was held that under the general prayer a com- plainant may have relief even against the admissions in his bill ; and in McMillan v James, 105 111 194, that the plaintiff ought not to be concluded by a statement in his bill when it is manifest that it is an incorrect con- clusion from the facts state d On Other Grounds, etc Under the general prayer, relief may be granted on other grounds and for different rea- sons, and for a less amount than is alleged and claimed in the bill, pro- vided the facts stated will sustain it. Hall v Pierce, 4 W Va 107 See also Shelby v Tardy, 84 Ala 327 Belief must be Secundum Allegat A The general prayer, however, will not authorize a decree based upon facts proved but not allege d Alabama Wiley v Knight, 27 Ala 336 Arkansa S Barraque -v Manuel, 7 Ark 516; Rogers v Brooks, 30 Ark 612; Cook v Bronaugh, 13 Ark 183 Georgia Hickson v Mobley, 80 Ga 314- Iowa Casday v Woodbury County, 13 Iowa 113; Wilson v Horr, 15 Iowa 489 KentucKy Crow v Owensboro, etc, RCo, 82 Ky 134 Maine Scudder v Young, 25 Me 153; Merrill v Washburn, 83 Me 189 Marylan d Hilleary v Hurdle, 6 Gill (Md) 105 Missour I McNair v Biddle, 8 Mo 257- New Hampshire Pennock v Ela, 41 N H 192 New Jerse Y Jordan v Clark, 16 N J E Q 243 New York WhiTer Jeffers, Clarke C H ( N Y)2o6 North Carolina Smith v Smith, i Ire d E Q (N Car) 83; Kornegay v Carroway, 2 Dev E Q (N Car) 403 VirginiaSheppard v Starke, 3 Munf ( Va) 29 United State S Hobson v M' Ar- thur, 16 Pet (U S) 182 ; Mackall v Casilear, 137 U S 556; Allen v Pullman's Palace Car Co, 139 U S 662 of a Bil L with the facts alleged and proved, provided it does not take the defendant by surpris e 1 And it has been held that there is no rule of practice or principle of law which prevents an appel- late court from granting relief within the scope of the general prayer, although that particular relief was not prayed for or sug- gested in the court belo W 2 But in order to entitle a plaintiff to a decree, under the general prayer, different from that specifi- cally prayed, the allegations relied upon must not only be such as to afford a ground for the relief sought, but they must have been introduced into the bill for the purpose of showing a claim to relief, and not for the mere purpose of corroborating the plaintiff's right to the specific relief praye d 3 "The general relief prayed for must be confined to the ground of jurisdic- tion stated in the bil L" Machinists' Nat Bank v Field, 126 Mas S 345 No Resort to Legal Belief Where the plaintiff fails on his only ground for equitable relief he cannot have his suit retained for the purpose of granting a relief to which he is only entitled at la W Welsh v Bayaud, 21 N J E Q 186 See Bullock v Adams, 20 N J E Q 367 1 Allum v Stockbridge, 8 Baxt (Tenn) 356; Hopkins v Snedaker, 71 111449- Consistency with Special PrayeRIt is, however, expressly laid down in many cases, and in others by implica- tion, and without the qualification stated in the text, that no decree for a plaintiff can be made under a prayer for general relief, where such decree would be inconsistent with 1 the prayer for specific relief Rennie z/ Crombie, 12 N J E Q 457; James i. Bird, 8 Leigh ( Va) 510; Simmons v Williams, 27 Ala 507; Thomason v Smithson, 7 Port.

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Verplanck v Mer- cantile Post Date: Wed, 30 Jul 2008 12:24:47 +0000
(Ala) 144 ; Florence Sewing Mac H Co v Zeigler, 58 Ala 221; Stone v Anderson, 26 N H 522; Busby -v Littlefield, 31 N H 193 ; Pennock v Ela, 41 N H 192; Bailey v Burton, 8 Wen d ( N Y) 339; Franklin v Osgood, 14 John S ( N Y) 527; Marine, etc, In S Bank v Early, R M Charlt ( Ga) 279; Chalmers v Chambers, 6Har J (Md) 29; Grain v Barnes, i Md C H 156; Tar- bell v Durant, 61 Vt 519; Fisher v Moog, 39 Fed Rep 665 On the Other Hand, it has been held that under the prayer for general re- lief the court may grant any relief that the facts stated will warrant, even though it be inconsistent with the special relief praye d Shields v Trammell, 19 Ark 62; Kelly z/ Mc- Guire, 15 Ark 555 2 Watts v Waddle, 6 Pet (U S) 3 Daniell C H Pr (6thA M e d)38i, quoted and approved 'in Curry v Lloyd, 22 Fed Rep 264 The relief must be consistent with the frame and purpose of the bil L Rigg v Hancock, 36 N J E Q 42; Scott v Gamble, 9 N J E Q 218; Kor- negay z/Carroway,2 Dev E Q ( N Car) 403; Allen v Pullman's Palace Car Co, 139 U S 662; Hayward v Elli- ott National Bank, 96 U S 6n; Georgia v Stanton, 6 Wal L (U S) 50; Pickens v Knisely, 29 W Va i; Chalmers v Chambers, 6Har J (Md) 29; Hilleary v Hurdle, 6 Gill (Md)ios; Peek v Wright, 65 Ga 638; Matthias v Warrington, 89 Va 533; James Y Kennedy, 10 Heis K (Tenn) 607; Merriman v Lacefield, 4 Heis K (Tenn) 217; Peck v Peck, 9 Yerg (Tenn) 301 See also Landis v Olds, 9 Min N 90; Walton v Perkins, 28 Min N 415; Barkwell v Swan, 69 Mis S 907 In Illinois the rule seems to be more favorable to the plaintiff, and it is there held that the court will grant such relief as the law requires from thefacts statedand proved on thehear- ing, without regard to what the plead- er may have contemplated in framing the bil L Allen v Woodruff, 96 111 19; Holden v Holden, 24 111 App 106 The Rule Qualifie d If a plaintiff claims special relief not at all war- ranted by the facts, or if it appears that he is entitled to relief upon very different principles of equity from what he supposed, such a misappre- hension of his case cannot defeat his right to relief Hill v Beach, 12 N Deserting Special PrayeRA plaintiff will not be allowed to aban- don the particular prayer in the bill to the decreeing of which there is no obstruction, and thereupon to pray another relief at the bar, where the defendant will be surprised or prejudiced thereb Y 1 10 The Prayer for Proces S The ninth part of the bill is the prayer for process to compel the defendant to appear and answer the bill, and abide the determination of the court on the subje Ct 2 J E Q 31 See also Brice v Brice, 5 Barb ( N Y) 533 So where it appeared that the plain- tiffs erroneously supposed themselves entitled to relief under a statute, when they were in reality entitled to relief on general equitable grounds, it was improper to dismiss the bill, for the appropriate relief could have been granted under the general prayeRAdams v Kehlor Milling Co, 36 Fed Rep 212 Exception in Favor of Infants or Char- ities Infant S When a bill is filed by an infant he may have a decree upon a matter arising upon the state of his case, though he has not specially men- tioned or insisted upon it, or prayed it by his bil L Daniell C H Pr (6th A M e d) 384; Kornegay v Carroway, 2 Dev E Q (N Car) 403; Stapilton v Stapilton, i At K 6 Charitie S In cases of charities likewise the court will give the proper directions, without any regard to the propriety or impropriety in the prayer of the informatio N Att'y Gen'l v Jeanes, I At K 355; Daniell C H Pr (6th A M e d) 384 1 Alien S Coffman,iBibb(Ky)469; Pillow v Pillow, 5 Yerg (Tenn) 420; Lee v Cone, 4 Cold W (Tenn) 392; Chalmers v Chambers, 6Har J (Md) 29; Hilleary v Hurdle, 6 Gill (Md) 105; Hiern v Mill, 13 Ve S JR114; Hill v Great Northern RCo, 5 De g, M g 66 See also Pennock v Ela, 41 N H 192; Kornegay v Car- roway, 2 Dev E Q (N Car) 403 In Allen v Coffman, iBibb(Ky) 469, it was said that " the utility of the general prayer conjoined with the par- ticular prayer is, that if the latter cannot be decreed, then, and not till then, a resort may be had to the for- me R" And in Pillow v Pillow, 5 Yerg (Tenn) 420, the rule was de- clared as follows, "If there be a prayer for particular relief and also a prayer for general relief, and there be evi- dence suited to the special relief sought, the decree should follow the special relief; but if the evidence be not suited to the special relief, but is nevertheless such as entitles the party to some relief, then the court will proceed on the general praye R" In Grimes v French, 2 At K 141, the court refused to let the plaintiff waive his claim for an annuity by way of rent charge left under a will, and in- sist upon the land itself on which the annuity was charge d 2 Story E Q PL, 44 The ordinary process prayed is a writ of subpoena, which requires the defendant to appear and answer the bill on a certain day named in the writ, under a certain penalt Y Story E Q PL, 44- Against a Corporatio N In Cooper E Q PL 16, 17, the author says, " In the case of a corporation aggregate, where the answer is under the com- mon seal, the bill must pray that a writ, called a writ of distringas, may issue under the great seal, which is for the purpose of distraining them by their goods and chattels, rents and profits, until they obey the summons or direction of the court." But Judge Story expresses the opinion that in a suit against such a corporation a prayer for a distringas is not neces- sar Y Story E Q PL, 44 Where there was no prayer of proc- ess against a corporation by its cor- porate name, but only against the officers thereof, and the corporation was not described in the bill as being a party thereto, it was held that the corporation was not before the court as a party to the suit. Verplanck v Mer- cantile In S Co, 2 Paige ( N Y), 438 In New Jersey a bill containing no prayer for process is demurrabl e Wright v Wright, 8 N J E Q 143 But the omission of the defendant's name from the prayer for answer can- not be taken advantage of by general The names of all persons who are intended to be made parties should be inserted in this part of the bill ; * for it is a general rule that none are parties, although named in the bill, against whom process is not praye d 2 But this is a purely technical rule, and the omission to identify the defendants in the prayer for process has been frequently held not to make the bill defective, if in other parts of the bill they are specifically named and with sufficient certainty described as de- fendants ; 3 and it has also been decided that the defect is cured if Where an Injunction is Sought it must be prayed for in the prayer for process as well as in the prayer for relief Wood v Beadell, 3 Si M 273; Lewiston Falls Mfg Co v Franklin Co, 54 Me 402; Witlett v Woodhams, i 111 App 411; Union Bank v Kerr, 2 Md C H 460 1 Story E Q PL, 44 In Sims v Sims, 50 Ga 572, a de- scription, in the prayer for subpoena, of one of the defendants against whom relief was prayed, as "of said county," where two counties were mentioned in the preceding part of the bill, and the jurisdiction of the court depended upon his residence in a certain one of those counties, was held insufficient.

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So in Kentucky, where, under Post Date: Wed, 30 Jul 2008 12:11:41 +0000
A prayer for process against the "said defendants," without naming anybody, where it does not appear with reasonable certainty in the other parts of the bill who are referred to as " said defendants," and in other parts of the bill some only of the persons who are necessary parties are men- tioned as defendants, is fatally defec- tive if necessary parties to the suit are thereby omitte d Howe v Robins, 36 N J E Q 19 A prayer that the " Branch Bank of the State of Alabama, at Mobile, be made a party to the bill by serving a copy of the same on JB N , the presi- dent thereof," was held sufficient to evince the intention to make the bank a part Y Walker v Hallett, i Ala 379 2 S'tory E Q PL, 44; Cooper E Q PL 16; Hoyle v Moore, 4 Ire d E Q (N Car) 175; Brasher v Van Cort- landt, 2 John S ( N Y) 242 In the Federal Courts Equity Rule 23 provides that the prayer for process of subpoena in the bill " shall contain the names of all the defendants named in the introductory part of the bill ^Equity Rule 20 requires the names of all the parties to be inserted in the in- troductory part], and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon, as justice may re- quire, upon the return of the proces S If an injunction or a writ of ne exeat regno, or any other special order, pend- ing the suit is asked for in the prayer for relief, that shall be sufficient with- out repeating the same in the prayer for proces S" Persons cannot be made parties by designating them by fictitious name S Kentucky Silver Mi N Co v Day, 2 Saw Y (U S) 468 If the prayer for subpoena does not contain the names of the defendants, the bill will be dismissed unless the defect is amende d Carlsbad v Tib- betts, 51 Fed Rep 852; Goebel v American RSupply Co, 55 Fed Rep 825 In Buerk v Imhaeuser, 8 Fed Rep 457, it was held that the omission to name a defendant in a prayer for proc- ess is cured by his general appear- anc e In Florida Chancery Rule 23 re- quires that "the prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill;" and if the names are not so inserted, it has been held that the omission is a defect in the frame of the bill and renders it demurrabl e Keen v Jordan, 13 Fla 327 See McCoy v Boley, 21 Fla 803 3 Sheridan v Cameron, 65 Mich 680; DeWolf v Mallett, 3 Dana (Ky) 214 In Alley v Quinter, Mc A M ( d C) 390, the court said: "We have been referred to several cases in which the prayer was held indispen- sable, but on examination the holding in each of these cases is found to de- the parties interested appear and make defens e 1 If a person be properly charged in the bill as executor, devisee, assignee, or in any other capacity, it is not a valid objection that he is not so styled in the prayer for proces S 8 Iv GENERAL PRINCIPLES OF PLEADING!. Statement of Essential Facts A IN GENERA L In a bill in equity the rights of the several parties, 3 the injury complained of, 4 and the material circumstances of the time, place, manner, or other incidents which are necessary in order to establish his right to the relief he asks, ought to be plainly yet succinctly alleged ; 5 and, according pend upon reasons special to the juris- diction, and not now having general applicatio N" See also Elmendorf v DeLancey, Hop K C H ( N Y) 555, and Iv 4 Designation of Parties, infr A Where a bill named certain persons and prayed that they might be made defendants, without expressly praying for process against them, it was held to be a sufficient designation of them- as parties, especially as they all ap- peared and joined in a demurreRFerguson v Hass, Phi L E Q (N Car) In West Virginia, although in some clear and sufficient way a bill must have parties plaintiff and defendant, it is not absolutely necessary that the defendant's name shall be inserted in the prayer for proces S Cook v Dor- sey, 38 W Va 197, where the bill was held to be insufficient and uncertain for failure to identify the defendants in any part of it. So in Kentucky, where, under the code, process issues as a matter of course upon the filing of the .

Autor of the post: Undefined

Lacefield, 4 Heis K (Tenn) Post Date: Wed, 30 Jul 2008 11:56:00 +0000
bil L DeWolf v Mallett, 3 Dana (Ky) 214 In the New York Court of Chancery, where process issued as of course, a formal prayer therefor was not neces- sary to entitle the plaintiff to that process, provided the bill showed clearly who were impleaded as de- fendant S Elmendorf v DeLancey, Hop K C H ( N Y) 555- In Alabama, when the prayer of the bill asks that the defendant "be made a party defendant to this bill," it is not necessary also to ask for a sub- pcena to be issued ; it is the duty of the register to issue the subpoena on the filing of the bil L McKenzie v Baldridge, 49 Ala 564 1 Majors v McNeilly, 7 Heis K (Tenn) 294; Buerk v Imhaeuser, 8 Fed Rep 457 But see Hoyle v Moore, 4 Ire d E Q (N Car) 175, where the prayer was " that the clerk be ordered to issue subpoenas to the proper defendants," without naming them; and the bill was dismissed, al- though certain persons came in and filed answer S 2 White v Davis, 48 N J E Q 22; Plant v Plant, 44 N J E Q 18; Evans v Evans, 23 N J E Q 72; White v Davis, 48 N J E Q 22 Compare Carter S Ingraham, 43 Ala 78, where it was held that if it is sought to make a defendant a party in his own right as heir at law and as executor or administrator, the bill should state the fact and pray process against him in both characters; and that otherwise he will be deemed to be a party only in the character in which process is prayed against him; and that in such a case, if process is prayed against the defendant in one character only, the register has no authority to issue process against him in bot H 3 See Iv 2 and3, infr A 4 It is not always necessary that the injury be characterized by technical term S Mott v Mott, 49 N J E Q 192; See also Grove v Rentch, 26 Md 376 5 Mitford E Q P I (Tyler's e d, 1890) 136 ; Story E Q PL, 23; Daniell C H Pr (6th A M e d) 314! Alabama Goldsby -v Goldsby, 67 Ala 560 ; Savannah, etc, M RCo v Lancaster, 62 Ala 555; Flewellen v Crane, 58 Ala 627; Seals v Robinson, 75 Ala 363; Rapier v Gulf City Paper Co, 64 Ala 330; Duckworth i. Duck- worth, 35 Ala 70; Bogan v Camp, 30 Ala 276 ; Lucas v Oliver, 34 Ala 626; Bell v Thompson, 34 Ala 633; Walthall v Rives, 34 Ala 91; Wingo v Hardy, 94 Ala 184, 10 So Rep 659; Moorer v Moorer, 87 Ala 545; Caha- lan -v Monroe, 56 Ala 303 Arkansa S Nolley v Rogers, 22 Ark 227 Illinoi S Stow v Russell, 36 111 18; Gage v Abbott, 99 111 366; Campbell v Powers, 139 111 128; Short zKieffer, 142 111 258 KentucKy Pennsbaker v Wathan, 2 A K Marsh (Ky) 317 Maine Boynton v Brastow, 38 Me 577 Marylan d Townshend v Duncan, 2 Bland (Md) 50 See also Estep v Watkins, i Bland (Md) 486 Massachusett S Drew v Beard, 107 Mas S 64 ; Wright v Dame, 22 Pic K (Mas S) 55; Bushnell v Avery, 121 Mas S 148; Amy v Manning, 149 Mas S 487 ; Nichols v Rogers, 139 Mas S 146 ; Molony v Rourke, 100 Mas S 190 Michiga N Bangs v Stephenson, 63 Mich 661; Fox v Pierce, 50 Mich 500; Moran v Palmer, 13 Mich 372; Remeau v Mills, 24 Mich 15 New Hampshire Rice v Merri- mack Hosiery Co, 56 N H 114 New Jerse Y Smith v Wood, 42 N J E Q 566; Consolidated Electric Stor- age Co -v Atlantic Trust Co ( N J, 1892), 24 At L Rep 229; Chapman v Hunt, 14 N J E Q 149; Phillips v Schooley, 27 N J E Q 410; Herbert v Herbert ( N J, 1890), 20 At L Rep 290 ; Midland RCo v Hitchcock, 34 N J E Q 278; Brokaw v Brokaw, 41 N J E Q 215; Eberhart v Gilchrist, n N J E Q 167 North Carolina Hoyle v Moore, 4 Ire d E Q (N Car) 175 Ohio White v Denman, I Ohio St i N Tennessee Merriman . Lacefield, 4 Heis K (Tenn) 217 Ver Mont Sanborn v Kittredge, so Vt 632 VirginiaYancy v Fenwick, 4 He N M ( Va) 423; Taliaferro v Foote, 3 Leigh ( Va) 58 West VirginiaZell Guano Co v Heatherly, 38 W Va 409; Vanbibber v Beirne, 6 W Va 177 ; Knapp v Snyder, 15 W Va 434 United State S Mercantile Trust Co v Kanawha, etc, RCo, 39 Fed Rep 339; Phelps v Elliott, 35 Fed Rep 455 ; Marshall v Turnbul L 34 Fed Rep 827; Harrison v Nixon, 9 Pet (U S) 503; Leo v Union Pac RCo, 19 Fed Rep 283; St Louis, etc, RCo v Johnston, 133 U S 577 ; Harding v Handy, n Wheat.

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" Att'y Gen'l v Oakland County Post Date: Wed, 30 Jul 2008 11:40:03 +0000
(U S) 103 Where a bill is filed to prevent the perversion of a trust, it will be in- tended that everything-has been law- ful and consistent with the trust which is not expressly shown to have been unlawful or inconsistent with it. Happy v Morton, 33 111 398, citing Foss v Harbottle, 2 Hare 502 Must Show Equitable Jurisdictio N "The bill must state a cause within the proper jurisdiction of a court of equit Y If it fails in this respect the error is fatal in every stage of the case, and can never be cured by any waiver or course of proceeding by the partie S" Chase v Palmer, 25 Me 341; Richards v Lake Shore, etc, RCo, 124 111 516 Must Support Decree pro Confes So A bill not containing the requisite alle- gations entitles the plaintiff to no re- lief, even though it be taken fro con- fes So Strother v Lovejoy, 8B Mo N (Ky) 135 ; White v Lewis, 2 A K Marsh (Ky ) 123; Mason v Foster, 3 J J Marsh (Ky) 284; West v Hall, 3 HaR J (Md) 221; McMahon v Rooney, 93 Mich 390 ; Danner v Brewer, 69 Ala 191 The allegations must be such that if they are admitted as true they will make a case within the jurisdiction of the court and entitle the plaintiff to a decree for some relief Lockard v Lockard, 16 Ala 430 ; Highstone v Franks, 93 Mich 52 ; Kip v Kip, 33 N J E Q 213 Belief on the Whole Bil L Where the grounds of relief sought by the bill are insufficient, yet if other grounds of the same character be well alleged, the chancellor should not withhold the relief Thomas v Hite, 5B Mo N (Ky) 593 Not Aided by Supplemental Bil L If the plaintiff is not entitled to relief upon the original bill, matters which subsequently occur, and which are averred by way of supplemental bill, cannot cure the defe Ct Land v Cowan, 19 Ala 297 See also Fahs v Roberts, 54 111 192; Nichols v Rogers, 139 Mas S 146 Estoppels, where they constitute the foundation of the relief sought, and are relied upon to defeat a legal title, cannot be proved unless they are allege d 2 Belief Based on statut e Where the plaintiff claims the benefit of a statute, his bill must contain all the averments necessary to bring his case within its beneficial provision S 3 b MATTERS OF EVIDENCE in Genera L A general charge or statement of a matter of fact is sufficient, and it is not necessary to charge minutely all the circumstances that may conduce to prove the general charg e These circumstances are properly matters of evidence, which need not be charged in order to let them in as proof, 4 especially where they are of such a nature as to Description of Propert Y A bill filed for the purpose of recovering the assets of an estate and praying for the appointment of a receiver, which fails to describe the property is demurrabl e Jones v Minogue, 29 Ark 637 Ti Me It was held in Reel v Over- all, 39 Ala 138, that where the valid- ity of a contract by a married woman which the bill seeks to enforce against her separate estate depends upon the time when it was made, and the time is not alleged in the bill, it will be pre- sumed to have been made at a time when it was not authorized by la W Substitution for Lost Bil L Where an original bill in chancery is lost and another is substituted, the latter should contain in itself all the allega- tions necessary to justify the relief sought, without reference to the origi- nal bil L Klein v Horine, 47 111 430 1 Smith v Woo d 42 N J E Q 566 See II I 4 The Stating Part, supr A 2 Moran v Palmer, 13 Mich 367 3 Eberhart v Gilchrist, II N J E Q 167 But it is sufficient if the facts are substantially allege d Bolgiano v Cooke, 19 Md 375 When a bill is filed under a statute, the rule is the same as at law that "where there is an exception in the enacting clause, the pleader must neg- ative the exception; but where there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause, or in a subsequent section of the act, it is matter of de- fense, and must be shown by the de- fendant." Att'y Gen'l v Oakland County Bank, Wal K (Mich) 90 4 Bishop v Bishop, 13 Ala 475; Orendorff v Tallman, 90 Ala 441; Hobart v Frisbie, 5 Con N 594; Lovell v Farrington, 50 Me 239; Dennis v Dennis, 15 Md 124; Pope v Leonard, 115 Mas S 286; Tong v Marvin, 15 Mich 60; Wilcox v Davis, 4 Min N 197; Winebrenner v Colder, 43 Pa St 244; Zell Guano Co v Heatherly, 38 W Va 409 For Purpose of Discover Y A plaintiff may state in his bill any matter of evidence, or any collateral fact, the ad- mission of which, by the defendant, may be material in establishing the general allegations of the bill as a pleading, or ascertaining or determin- ing the nature, extent, or kind of relief to which the plaintiff may be entitled; or which may legally influence the court in determining the question of cost S Casey v Casey, 2 Barb ( N Y) 59; Hawley v Wolverton, 5 Paige ( N Y)523; Mechanics' Bank W Levy, 3 Paige ( N Y) 607; Goodrich v Parker, i Min N 172 But this is for the purpose of re- quiring a discovery, upon oath, in the answer of the defendant, and " such statements would, without doubt, be impertinent in a bill which requires an answer without oath and has no interrogatories annexed relating to the M" Camden, etc, RCo v Stewart, 19 N J E Q 343 Cumulative Fact S When a bill truly sets forth sufficient facts to entitle the plaintiff to relief, the pleader may or may not, at his option, aver additional cumulative facts which only intensify, without varying, the principal relief claime d Noble v Moses, 81 Ala 530 Conclusions of Fa Ct A plaintiff should not be concluded by a state- ment in his bill, when it is manifest that it is an incorrect conclusion of be peculiarly within the knowledge of the Defendant 1 Nor is it sufficient to state only the evidence from which a required fact may be inferred, even where such evidence, if not overcome by opposing proof, would justify a finding of the fa Ct 2 Admissions of Defendant The confessions, conversations, and admis- sions of the defendant need not be expressly charged in the bill in order to entitle the plaintiff to use them in proof of facts charged and in 'issue therei N 3 C MATTERS JUDICIALLY KNOWN in Genera L The plaintiff need not, and should not, state in the bill any matters of which the court is bound judicially to take notice, 4 such as public acts or law S 5 Foreign Law S But the laws and jurisprudence of foreign nations, if material, must be averred in the bil L 6 Private Act S And where the right to relief is based upon a pri- vate statute, it must be pleaded as well as prove d 7 fact from the facts state d McMillan v James, 105 111 194 1 Hubbard z McNaughton, 43 Mich 220; Halsey v Ackerman, 38 N J E Q 501 See also Holbrook v Winsor, 23 Mich 394 2 Bliss v Anderson, 31 Ala 612, where it was held that an averment that the board of directors adopted certain engraved forms of certificates of deposit, " which show on their face that they are intended to pass from hand to hand as money," is not, on demurrer, a sufficient allegation of the intent that such certificates shall so circulate, although they show on their face that they were intended to subserve the purposes of mone Y See also Wilson v Eggleston, 27 Mich 257 Facts Preferred to Conclusion S " It is always better to make a full charge of substantive matter to which terms of test can at once be applied, than to be lame in these and redundant in terms the facts will not support.

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