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the bill any facts which justify delay in the commencement of the suit or which would take the case out of the bar of the statute of limitations, if that might otherwise apply.21 Under the former practice, where the complainant anticipated a defense which could only properly be met by pleading new matter, it was necessary to set up the same by way of confession and avoidance in his bill.22 This was originally inserted in the charging part. "It usually consists of some allegation or allegations which set forth the matters of a defense or excuse which it is supposed the defendant intends or pretends to set up to justify his noncompliance with the plaintiff's right or claim, and then charges other matters, which disprove or avoid the supposed defense or excuse. It is sometimes also used for the purpose of obtaining a discovery of the nature of the defendant's case, or to put in issue some matter which it is not for the interest of the plaintiff to admit; for which purpose the charge of the pretense of the defendant is held to be sufficient." 23 This was more recently, when considered to be necessary, inserted in the narrative part of the bill.24 Illustrations of such cases are: a prior patent; 25 and, it seems, an estoppel; 26 but not ordinarily ultra vires.27 The practice under the new rules has not been decided. In England, it is well settled that this should not be done; 28 but there the plaintiff has the right to reply, by way of confession and

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

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

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

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

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

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

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

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

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

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

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

29 Ibid.

30 See §§ 195, 203, infra.

31 Welsh

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

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

given with as much fullness as could be done by the complainant.


Allen v. Luke, 141 Fed. 694. following allegations were held to have sufficient certainty: that the defendants "suffered and permitted the said reports," which were alleged to be false, "to be placed on file in the Department of the Comptroller of the Currency; that the said directors utterly failed and neglected to per form their aforesaid official duties, and each and every of them; and that for a considerable period of time prior to said November 13th, 1902, as herein before and hereinafter set forth, failed to give any adequate attention to the affairs of said bank, and allowed the said bank to be improvidently and recklessly managed;" and that the defendants "wholly failed and neglected to make personal examinations into the conduct and management of its affairs and into the condition of its accounts. Ibid. For an insufficent allegation that plaintiff was a bona fide purchaser of a note before its maturity, see Caesar v. Capell, 83 Fed. 409. For a lack of certainty in allegations concerning the assignment of a patent, see Jaros H. U. Co. v. Fleece H. U. Co., 60 Fed. 622. A bill to enjoin the enforcement as a lien upon land of a judgment entered a few days after complainant had begun to erect a

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The same precision of statement required in pleadings at law is not necessary.2 Less certainty is required concerning facts of which a discovery is sought from the defendant.3

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

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

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

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

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

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

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not change the nature of a civil action or add anything to its legal force and effect.10 A general charge of fraud is not sufficient, but it must allege the specific acts or language which constitute the fraud.11 All the evidence of the fraud need not be pleaded.12 It is sufficient if the main facts or incidents which

10 Howland v. Korn, C. C. A., 232 Fed. 35, in which the author was counsel.

11 Gilbert v. Lewis, 1 De G. J. & Sm. 38, 49; Bryan v. Spruill, 4 Jones Eq. (N. C.) 27; U. S. v. Atherton, 102 U. S. 372, 26 L. ed. 213; U. S. v. Norsch, 42 Fed. 417. But see Field v. Hastings & Bradley, Co., 65 Fed. 279; Kittel v. Augusta, T. & G. R. Co., 65 Fed. 859; Patton v. Glatz, 56 Fed. 367; Von Horst v. Am. Hop & Barley Co., 177 Fed. 976, where allegations that an assessment was made pursuant to a conspiracy to deprive complainant of his stock, was held to be insufficient without any showing of facts tending to prove such conspiracy or improper motive; James v. City Investing Co., 188 Fed. 513. See infra. A bill to set aside a decree for fraud must specifically state the manner in which the imposition was practiced upon the court. U. S. v. Norsch, 42 Fed. 417; U. S. v. Rose, 166 Fed. 999, a bill to set aside a decree of naturalization. So held where a bill attacked a land patent for fraud and mistake. Le Marchel v. Teegarden, 133 Fed. 826. In a suit to set aside conveyances of land, made by an executor in probate proceedings, allegations that the sales were fraudulently conducted are insufficient without any averment of the substantive facts justifying the charge. Williamson v. Beardsley, 137 Fed. 467. A bill to set aside a land patent on account of fraud or mis

take must state the particulars of the fraud, the names of those engaged therein, the officers who were deceived and the manner in which the mistake occurred. U. S. v. Atherton, 102 U. S. 372, 26 L. ed. 213. But see U. S. v. Am. Bell Tel. Co., 128 U. S. 315, 32 L. ed. 450; John A. Roebling's Sons Co., 248 Fed. 596. A patent for public lands will not be set aside unless the bill shows that it was issued to the wrong party by fraud, gross mistake, or erroneous construction of law. A bill to enjoin the construction of a county vault, which avers that the commissioners who let the contract "" were imposed up. on by false and fraudulent repre sentation made to them by the contractor and carpenter, as to the character, quality, and cost of the material of said vault," does not show with sufficient definiteness what representations were made; and an averment "that said contract or agreement was made by collusion or agreement between said A. and co-respondents, or some of them, in order to give said A. an undue advantage in the erection of the vault over any other persons, to the great damage and injury of the county," is insufficient as failing to set out the facts constituting collusion. Hays V. Alrichs, 115 Ala. 239; s. c., 22 S. R. 465. See Moore v. Hawkins, 19 How. 69, 15 L. ed. 533.

12 U. S. v. Am. Bell Tel. Co., 128 U. S. 315, 316, 32 L. ed. 450. It has

constitute the fraud against which relief is desired are fairly stated so as to put the defendant upon his guard and apprise him of whatever answer may be required of him.13 A bill to set aside

been held that a creditor's bill for an injunction and a receiver, because of the fraudulent disposition of assets, need not describe the assets. Shainwald v. Lewis, 6 Fed. 766, 775.

13 U. S. v. Am. Bell Tel. Co., 128 U. S. 315, 316, 32 L. ed. 450. In a suit for a conveyance of land, it was held to be sufficient to allege that the defendant, while plaintiff's agent, proposed that she convey the property to him for the purposes of its management, and promised that he would reconvey it upon demand, which promise he then had no intention of performing, but made in order to fraudulently procure the land; and that she was induced by his promise and representations to make the transfer. Alaniz v. Casenave, 91 Cal. 41. See also Tyler v. Savage, 143 U. S. 79, 36 L. ed. 82; Peck v. Vinson, 124 Ind. 12; Lawrence v. Gayetty, 78 Cal. 126, 12 Am. St. Rep. 29. An averment that one B. was from infancy of unsound mind, and that his mother and her legal adviser procured a deed from him for a grossly inadequate consideration, which was never paid, is a sufficient averment of fraud. Rhino v. Emery, C. C. A., 72 Fed. 382. The allegation that a decedent, when very feeble both in mind and body, was persuaded and induced through some undue and improper influence, unknown to complainants, to execute a deed, was held to be insufficient. Jackson v. Rowell, 87 Ala. 685, 4. L.R.A. 637. But see Mott v. Mott, 49 N. J. Eq. 246; s. c., 22 Atl. 997, cited infra, § 138. A Fed. Prac. Vol. I-49

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bill alleged that the bank was insolvent on the 5th day of May; that this was well known to its officers; that it wrongfully neglected to disclose its insolvency to complainant and by continuing business and otherwise represented to complainant and all other persons dealing with it, that it was solvent; that complainant, on the faith of these representations, believed such to be the fact, without suspicion that the bank was, or was in danger of becoming, insolvent; that, acting upon the representations, and relying on the bank's solvency, complainant delivered the draft; that next morning the bank closed its doors, and the draft was collected thereafter; and that, by reason of the premises, the draft or its proceeds did not become the property of the bank." These allegations were held sufficient to charge fraud. "The omission to state in the pleading the degree of insolvency which rendered the bank's conduct fraudulent was not fatal, as the conclusion asserted showed the intention of the pleader." St. Louis & S. F. Ry. Co. v. Johnson, 133 U. S. 566, 577, 578, 33 L. ed. 683, 686, 687. For a case where it was held that sufficient fraud was shown to authorize a bondholder to bring a suit of foreclosure when the mortgage provided for foreclosure only upon request of the majority of the bondholders, Brown v. Denver Omibus & Cab. Co., C. C. A., 254 Fed. 560. On a bill against the officers of a bank for damages caused by the bad management of its affairs, it was held that specific

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