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plaintiff claim under a derivative title, he must show the steps by which it has come into existence; but this is not ordinarily necessary when the plaintiff prays protection to rights connected with land, of which he is in possession. Where, in a suit to restrain, the diversion of the waters of a stream, the complainant's claimed to be prior appropriators as to a certain number of cubic inches of water, and to be entitled to additional amounts as the grantees of other appropriators; it was held, that the bill should allege on what lands such additional amounts of water, appropriated by complainants' grantors, were used by them.8 A bill which alleged that the plaintiff's were the owners of an interest in trust funds of approximately a specific amount held by a corporation, a receiver for which was prayed, was held to be insufficient.9 Where, however, there is an existing privity between the plaintiff and defendants, independently of the plaintiff's title, which gives the plaintiff a right to maintain the suit; as, for example, if they are landlord and tenant, or mortgagor and mortgagee, then it is not necessary to state the plaintiff's title fully in the bill.10 The following allegation was held to be sufficient to show that the person who had filed the claim had possession of the collateral: "Your petitioners are informed and believe, and therefore allege, that the said Belin or his agents, among them the First National Bank of Seranton, Pa., still hold said note and said collateral. Said Belin has filed his claim on said note under order of the court made in this pro

that they are due and wholly unpaid "to your orator and other holders of said bonds" was held a sufficient allegation of ownership. Toler v. East Tennessee, V. & A. Ry. Co., C. C. A., 67 Fed. 168.

6 Lord Digby v. Meech, Bunb. 195; Humphreys v. Tate, 4 Iredell's Eq. (N. C.) 220; Marshall v. Turnbull, 34 Fed. 827; Daniell's Ch. Pr. (2d Am. ed.) 369, 370. For a case upon the sufficiency of allegations in a bill that complainants comprise all the heirs and next of kin of deceased, as showing complainants' title, the bill also containing the decree of distribution, see Hubbard

v. Urton, 67 Fed. 419. "It is not necessary, when all the legal and equitable owners are joined, to state the formalities or the mode of conveyance by which the equitable interests became vested in the cocomplainants.'' Shipfan, J., in Black v. Henry G. Allen Co., 9 L. R. A. 433, 42 Fed. 618, 623.

7 Miller & Lux v. Rickey, 127 Fed. 573.

8 Miller & Lux v. Rickey, 127 Fed. 573.

9 Cummings v. Supreme Council of Royal Arcanum, 247 Fed. 992.

10 Daniell's Ch. Pr. (2d Am. ed.) 370, 371.

ceeding requiring claims against Etna Explosives Company, Incorporated, to be so filed." 11 Where the bill alleged that complainant delivered certain securities to defendant, as trustee and depositary, to hold and thereafter deliver and distribute to him as directed by the complainant, but did not set forth the terms and conditions of the deposit, so as to show that it was not a mere bailment; it was held, that the bill did not aver trust sufficient to confer jurisdiction upon a court of equity.12

If the plaintiff's title would be incomplete without the performance of some preliminary act, then a performance must be alleged, and a mere statement that the title is complete was insufficient.18 It has been held: that a wife's willingness to join in her husband's conveyance need not be affirmatively shown since the law assumes her willingness to unite with him in conveying the property which he has agreed to convey.14 In a bill filed by an executor or an administrator, it seems to be sufficient

11 Grasselli Chemical Co. v. Aetna Explosives Co., 247 Fed. 603.

12 Young v. Mercantile Trust Co., C. C. A., 145 Fed. 39; Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642.

13 Walburn v. Ingilby, 1 M. & K. 61; Daniell's Ch. Pr. (2d Am. ed.) 369; infra, § 150. An allegation that the complainant acquired the title by purchase from the assignee in bankruptcy of the original owner was held sufficient, although it did not state that the assignee in bankruptcy obtained an order from the court authorizing him to make the sale. Amory v. Lawrence, 3 Cliff. 523. Where the plaintiff sued as a shareholder of a joint-stock company, and merely alleged in his bill "that he purchased for valuable con siderations divers shares, upon which the instalment of five per cent. had been paid, and that he ever since has been, and now is, the holder of such shares;" while in another part of the bill it was alleged that by the rules of the asso

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ciation, as set forth in the prospectus, no transfer of shares would be valid in law or equity, unless the purchaser was approved by a board of directors, and signed an instrument binding him to observe the regulations, ''-it was held, on demurrer, that such action on the part of the board and the purchaser was a condition precedent to the transfer of the title to a share of stock; and that the bill was defective for not alleging such action. Walburn v. Ingilby, 1 M. & K. 61. A complainant who rests his title upon a tax deed must plead performance of the prerequisites to the validity of the deed. Greenwall v. Duncan, 16 Fed. 35; Wallburn v. Ingilby, 1 M. & K. 61; Atwill v. Ferrett, 2 Blatchf. C. C. 39; Chicago Music Co. v. J. W. Butler Paper Co., 19 Fed. 78; Trow City Directory Co. v. Curtin, 36 Fed. 829; Ford v. Charles E. Blaney Amusement Co., 148 Fed. 642, 645.

14 Dixon v. Anderson, C. C. A., 252 Fed. 694.

to state that the will has been proved, or letters of administration taken out, "in the proper court," without naming it.15 If, however, the plaintiff undertake to name the court, and it be an improper or insufficient one, the bill is demurrable.16 An allegation that the defendant is a trustee is insufficient without a statement of the facts which make him a trustee.17

When the nature of the conveyance through which the plaintiff claims is such that by common law, independent of a statute, as, for example, the statute of frauds, no deed, writing, or other formality was essential to its validity, the English rule was that compliance with such formality need not be alleged.18 In this respect equity followed the rule at common law, that such statutory regulations did not alter the form of pleadings.19 If, however, it appeared upon the face of the bill that compliance had not been made with such a formality, the bill was demurrable upon that ground.20 But when a right has been originally created by statute, as a right to land by devise, or in this country a patent or copyright, according to the former practice, a compliance with the statutory requirements had to be alleged by one claiming under it.21 It has been held that an estoppel in pais must be pleaded by the party who seeks to avail

15 Humphreys v. Ingledon, 1 P. Wms. 752; Black v. Henry G. Allen Co., 42 Fed. 618, 623. The averment that the complainant was "duly appointed administrator'' was held insufficient; the issue of letters of administration must be alleged. Otto v. Regina M. B. Co., 87 Fed. 510. Where the state statute (Minn. R. L. 1905, § 3842) authorizes a foreign guardian to sue in the state provided he file an authenticated copy of letters in the probate court in the county where the ward's property is situated, it was held that a bill by such a guardian was not demurrable for failure to allege the filing of such a copy. Pulver v. Leonard, 176 Fed. 586.

16 Tourton v. Flower, 3 P. Wms. 369; Black v. Henry G. Allen Co.,

9 L.R.A. 433, 42 Fed. 618, 624;
Daniell's Ch. Pr. (2d ed.) 264.
17 Evan v. Avon, 29 Beav. 144.

18 Daniell's Ch. Pr. (2d Am. ed.) 416; Harrison v. Hogg, 2 Ves. Jr. 327.

19 Daniell's Ch. Pr. (2d Am. ed.) 416; Stephen on Pleading, 313.

20 Randall v. Howard, 2 Black, 585, 589, 17 L. ed. 269, 271; Daniell's Ch. Pr. (2d Am. ed.) 417; Redding v. Wilkes, 3 Brown, C. C. 401.

21 Daniell's Ch. Pr. (2d Am. ed.) 419; Sullivan v. Redfield, 1 Paine, 441; Atwill v. Ferrett, 2 Blatchf. C. C. 39; Walburn v. Ingilby, 1 M. & K. 61; Atwill v. Ferrett, 2 Blatchf. C. C. 39; Chicago Music Co. v. J. W. Butler Paper Co., 19 Fed. 758; Trow City Directory Co. v. Curtin, 36 Fed. 829; Ford v. Charles E.

himself of the same.22 A bill to set aside a patent of public lands must show that the patent was issued to the wrong party through fraud, or gross mistake, or erroneous construction of law.23 A bill which averred a settlement, improvement, failure to post notices of claims, plaintiff's adverse possession for ten years, and the subsequent issue of a patent to the defendant, and that he claims some title, estate, and interest in the lands by reason of the patent, was held to be insufficient.24 Where complainant for fraud or a mistake in fact attacks a patent, issued by the Land Department, he must plead and prove the evidence before the department, show the particular mistake that was made, the way in which it occurred, and the fraud, if any, which induced the issue of the patent.25 "The rule in equity is that it is not sufficient to charge a fraud simply, but you must charge also some injury as the result of the fraud." 26 Where a bill shows apparent laches, it should set forth the impediments to an earlier suit, the cause of the complainant's previous ignorance, if any, of his rights, and when he first knew of them.27

In construing a bill in equity, every doubt is against the pleader; 28 but contracts by corporations are presumed to be within their charters until the contrary is shown.29 When the bill contains general and specific allegations as to the same matter, the general allegations will be referred to those which are specific.30 Exhibits attached to the bill, and therein referred

Blaney Amusement Co., 148 Fed. 642, 645; infra, $$ 146, 150. This rule of equity practice is enforced under the English Rules of 1883. Seear v. Lawson, 16 Ch. D. 621; Read v. Brown, 22 Q. B. D. 128; Davis v. James, 26 Ch. D. 778.

22 Maybury v. Louisville & J. F. Co., 60 Fed. 645.

23 Reed v. St. Paul N. & M. Ry. Co., 234 Fed. 207.

24 Ibid.

25 Le Marchel v. Teegarden, 133 Fed. 826; U. S. v. Pratt C. & C. Co., 18 Fed. 708; Murphy v. East Portland, 42 Fed. 308; Lehigh Z. & I. Co. v. N. J. Z. & I. Co., 43 Fed.

545, 546; Olson v. Nor. R. Co., 43 Fed 112. But see Robinson v. Suburban Brick Co., C. C. A., 127 Fed. 804.

26 Linn v. Green, 17 Fed. 407.

27 Badger v. Badger, 2 Wall. 87, 17 L. ed. 836; Richards v. Mackall, 124 U. S. 183, 31 L. ed. 396; Gandy v. Marble, 122 U. S. 432, 30 L. ed. 1223; Wollensak v. Reiher, 115 U. S. 96, 29 L. ed. 350.

28 Phelps v. McDonald, 99 U. S. 298, 305, 25 L. ed. 473, 475.

29 Express Co. v. Railroad Co., 99 U. S. 191, 199, 25 L. ed. 319, 320.

30 Ellis v. Colman, 25 Beav. 662;

to, are considered as a part of the same.31 "As to exhibits, they are a mere matter of indulgence. In good pleading, strictly, the bill should give the requisite full information of itself; but indulgence to loose practice and convenience has allowed exhibits with explicit reference to them in the bill, and they may be referred to in aid of the bill; but they may not be omitted altogether, as here, and the pleader content himself with a naked reference by its date to some document of record in a far-away place." 32 Good pleading requires that everything that is material to the case should be set forth in the pleading itself by proper averments. This may be done in general terms, and the exhibit may be referred to for greater certainty as to particular details, but the pleading ought to contain the substance of the case." 33 Where the plaintiff's title is intelligently shown, there is no need for profert of the documents upon which it is founded.34

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§ 145. Stockholders' bills. By the Equity Rules of 1912, 'Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action, or the reasons for not making such effort." This, with the exception of the last clause, is the new promulgation of a former equity rule, adopted during the October term, 1881.2


Lumley v. Wabash Ry. Co., 71 Fed. 21; Story's Eq. Pl., § 37a.

31 Black v. Henry G. Allen Co., 9 L.R.A. 433, 42 Fed. 618, 625; infra, § 366.

32 Hammond, J., in. Electrolibration Co. v. Jackson, 52 Fed. 773. 776. But see infra, § 146.

33 Chancellor Ellett in Harvey v. Kelly, 41 Miss. 490, 93 Am. Dec. 267.

34 La
Republique Francaise V.
Schultz, 57 Fed. 379. But see in-
fra, $146.

$145. 1 Eq. Rule 27.
2 Old Eq. Rule 94.

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