what will, the said testator appointed the said Charles Jones and Wil liam Smith, or any other, and what, persons, executors of said last will and testament; and whether the said testator departed this life on or about the 25th day of March, in the year of our Lord one thousand eight hundred and ninety-six, or at any other, and what, time; and whether he revoked, altered, or annulled the said last will and testament before his death, or the provision therein for the benefit of your orator, and when, and before whom, and in what manner, and whether the said Charles Jones and William Smith, or one, and which, of them, proved the said will, and when, and before whom, and in what manner; and whether they took upon themselves the burden of the execution thereof, and by virtue thereof possessed themselves of all the said testator's real and personal estate, goods, chattels, and effects. And that they respectively set forth whether your orator, by his said father and next friend, has not, several times since his said legacy became due and payable, applied to them to have the same paid, or secured to be paid, for his benefit, or to that effect; and whether the said Charles Jones and William Smith, or one, and which, of them, refused or neglected to comply with your orator's requests, and for what reasons, respectively, and whether such refusal was grounded on the pretenses herein before charged, or any, and which, of them, or any other, and what, pretenses particularly. And that the said Charles Jones and William Smith may admit assets of their said testator come to their hands sufficient to satisfy your orator's said legacy, and subject thereto, and otherwise set forth a particular account of the real and personal estate, goods, and effects of which the said testator died possessed or entitled unto, and the particulars whereof the same consisted, and the value thereof, and how much thereof they have applied in discharge of the said testator's debts, legacies, and funeral expenses, and to whom and for what paid, and what is be come thereof particularly, and whether the said testator did not die possessed of real and personal estate, goods, and effects to the value of thirty thousand dollars and upwards, or what other value, and whether the same was not more than sufficient to pay and satisfy all the said testator's debts, legacies, and funeral expenses.

[8. Prayer for relief:]

And that the said Charles Jones and William Smith may be decreed to render and set forth to your orator a full, just, and true account of all such debts and sums of money as were really due and owing by and from their said testator at the time of his death, and to whom, by name, and on what security and securities, and how and on what account such debts were respectively contracted, and which of them now remain unpaid and unsatisfied, and that they may be compelled by a decree of this honorable court to pay your orator's said legacy of three thousand dollars, and that the same may be placed out at interest for your orator's benefit until your orator attains the age of twenty-one years, and that the said sum of three thousand dollars may then

be paid him, and that in the meantime the interest thereof may be paid to your orator's said father, James Doe, towards the support and maintenance of your orator, and that your orator may have such further relief, or may have such other relief, as the nature of his case shall require, and as shall be agreeable to equity.

[9. Prayer for process:]

May it please your honors to grant unto your orator the writ of summons in chancery, issuing out of and under the seal of this honorable court, to be directed to the sheriff of said Cook county, commanding him that he summon the said defendants, Charles Jones and William Smith, to be and appear before this honorable court on tae first day of the next May term thereof to be held at the court house in the county aforesaid, then and there to answer this bill, and further to stand to and abide such order and decree therein as shall be agreeable to equity and good conscience.

And your orator shall ever pray, etc.

John Doe,

By James Doe, his Father and Next Friend.

Thomas Edwards,
Solicitor for Complainant.25

§ 70. The address of the bill.

The address contains the appropriate and technical description of the court, and must be varied accordingly.26 In England, when addressed to the chancellor, it was in the following

25 The foregoing form is taken substantially from 2 Harrison, Ch. Pr. 265, 2 Barbour, Ch. Pr. 353-357. The form will also be found in 3 Enc. Forms, p. 418. Some diversity exists in fixing in the foregoing bill the point of division between the interrogating part and the prayer for relief. In 2 Barbour, Ch. Pr. 356, the last sentence above included in the interrogating part is assigned to the prayer for relief. The classification here adopted is used in Thompson, Eq. Pl. & Pr. 6, and 3 Enc. Forms, 424. This form is used for the purpose of illustration, notwithstanding doubts cast upon the right of action in Epler v. Epler, 13 Ill. App. 472. Under the ancient chancery practice, a legatee might file his bill in equity against the executor, to recover his legacy, whether the executor assented thereto or not; and it is said that his right to do so is not affected by the fact that he may maintain an action at law for the legacy, or enforce its payment in the probate court. 18 Am. & Eng. Enc. Law (2d Ed.) 803, citing Hedges v. Norris, 32 N. J. Eq. 193; Pearson v. Darrington, 18 Ala. 348; Foscue v. Foscue, 22 N. C. 65; Millsap v. Stanley, 50 Ala. 319; Colt v. Colt, 32 Conn. 422. 26 Story, Eq. Pl. § 26; Mitford, Eq. Pl. 42

form: "To the Right Honorable, the Lord High Chancellor of Great Britain;" in the federal courts it is, "To the Honorable the Judges of the Circuit Court of the United States within and for the District of Sitting in Equity;" in the Circuit Court of Cook County, Illinois, "To the Honorable the Judges of the Circuit Court of Cook County, in the State of Illinois, in Chancery Sitting;" in New York, when the chancery practice there obtained, it was, "To the Honorable James Kent, Chancellor of the State of New York."27 A bill should not be entitled in a cause until it is filed, as until the bill is filed no cause is pending; and if so entitled, as to parties, before filing, such part may be rejected as surplusage." The title or caption of the bill is no part of it, either in respect to its statements or parties.29

§ 71. The introduction.

28

The second part of the bill is the introduction, which contains the names of the parties complainant, who are commonly called "orator," "orators," "oratrix," and "oratrixes," according to their number and sex. In this part of the bill the names of the parties are not only given, but their places of abode, and the character in which they sue, if they sue in autre droit. The object of giving the names and descriptions of the parties is to enable the court and the other parties in interest to know whither to resort for their costs, or to compel obedience to any order or process of the court, and to furnish distinct means of decision in all future controversies concerning the subject-matter and the identity of the parties, and, in the federal courts, in order that it may appear that the court has jurisdiction, so far as it depends

27 For forms of addresses, see Story, Eq. Pl. § 26; 4 Desty, Fed. Proc. (9th Ed.) 440; Barton, Suit in Eq. 26, 27; Van Heythuysen, Eq. Drafts. 2; Sterrick v. Pugsley, 1 Flip. 350, Fed. Cas. No. 13,379; Cadwallader v. Evans, 1 Disn. (Ohio) 585.

28 Sterrick v. Pugsley, 1 Flip. 350, Fed. Cas. No. 13,379.

29 Edney v. King, 39 N. C. 465; Spalding v. Dodge, 6 Mackey (D. C.) 289.

32

on the citizenship of the parties.30 In this part of the bill are sometimes contained the names and appropriate description of the parties defendant. This frequently results from either a rule of court or a statutory enactment.31 The form of introduction varies with the circumstances of the particular case. There seems to be some doubt as to the proper mode of taking advantage of a defect in the introductory part of the bill.83 In New York it was held that an omission to state in a bill the complainant's occupation or address was not a ground of demurrer.34 In Alabama it is held that the bill must state complainant's residence; otherwise, it is demurrable.85

$72. The stating part.

The third part of the bill is the premises, or, as it is most usually styled, the "stating part," which contains a statement of the complainant's case, of the wrong of which he complains, the names of the persons by whom done, and against whom he seeks redress.36 The stating part of the bill should set out the

30 Mitford, Eq. Pl. 42, 43; Story, Eq. Pl. § 26; Jackson v. Ashton, 8 Pet. (U. S.) 148; Liddell v. Carson, 122 Ala. 518, 26 So. 133; FruitCleaning Co. v. Fresno Home-Packing Co., 94 Fed. 845. See Hill v. Spencer, 196 Ill. 65, 63 N. E. 614.

31 United States Equity Rule 20; United States v. Pratt Coal & Coke Co., 18 Fed. 708; Harvey v. Richmond & M. Ry. Co., 64 Fed. 19. If the suit is in the circuit court of the United States, it is alleged that the complainant and defendant are respectively citizens of particular states. The usual form in such courts is: "A. B., of and a citizen of the state of —, brings this his bill against X. Y., of and a citizen of the state of -; and thereupon your orator complains and says."

32 Precedents of forms of introduction will be found in 4 Desty, Fed. Proc. (9th Ed.) 443-447; 3 Enc. Forms, 418-420; Curtis, Eq. Prec. 1-3. 23 Story, Eq. Pl. § 26, note.

34 Gove v. Pettis, 4 Sandf. Ch. (N. Y.) 403.

35 Liddell v. Carson, 122 Ala. 518, 26 So. 133, citing 1 Daniell, Ch. Pl. & Pr. (6th Am. Ed.) 357. In the federal courts, the failure to aver the citizenship of the parties, where jurisdiction is dependent on citizenship, may be raised by demurrer (Ketchum v. Driggs, 6 McLean, 13, Fed. Cas. No. 7,735), and the objection may be raised on appeal for the first time, though not considered in the court below (Great Southern Fireproof Hotel Co. v. Jones, 177 U. S. 449).

36 Story, Eq. Pl. § 27; Mitford, Eq. Pl. 43; Cooper, Eq. Pl. 9.

essential facts upon which the complainant relies, succinctly, yet with all possible perspicuity, and without argumentativeness, and especially without any attempt at rhetorical embellishment.37 The stating part constitutes the real substance of the bill upon which the court is called to act. If it has not the proper legal certainty, the defect, unless removed, may become fatal at every subsequent stage of the cause.38 It should narrate the facts and circumstances on which the complainant seeks relief, and, to sustain the bill, they must be such as to entitle him to the relief sought.39 It must show by positive averments all the matters essential to relief, and such matters must not be made to depend on inference, nor be ambiguous, uncertain, or inconclusive.40 The material facts must be so alleged as to put them in issue, or the relief cannot be granted, though the facts be proved.41 A general charge or statement of the matter of fact is sufficient, and it is not necessary to charge minutely all the circumstances which may conduce to prove the general charge, for these circumstances are properly matters of evidence which need not be charged in order to let them in as proofs.42 The importance of framing the stating part of the bill carefully and accurately is apparent from the fact that it is held in some jurisdictions that a defect in the stating part cannot be supplied by the interrogating part;43 and that, if a

37 4 Minor, Inst. Com. & St. Law (2d Ed.) 1239 (1122); Sands, Suit in Eq. (2d Ed.) 20 et seq.; Hood v. Morgan, 47 W. Va. 817, 35 S. E. 911. 38 Story, Eq. Pl. § 27; Cooper, Eq. Pl. 11; Flint v. Field, 2 Anstr. 543. 39 Barnard v. Cushman, 35 Ill. 451; Flanagan v. State Bank, 32 Ala. 508; Berry v. Pierson, 1 Gill (Md.) 234; Rorback v. Dorsheimer, 25 N. J. Eq. 516; Sanborn v. Kittredge, 20 Vt. 632, 50 Am. Dec. 58; Shepard v. Shepard, 6 Conn. 37; Pennebaker v. Wathan, 2 A. K. Marsh (Ky.) 315.

40 Seals v. Robinson, 75 Ala. 363.

41 Harding v. Handy, 11 Wheat. (U. S.) 103; Pelham v. Edelmeyer, 15 Fed. 262; Cleaver v. Matthews, 83 Va. 801, 3 S. E. 439; Barnett v. Barnett, 86 Ill. App. 625; Dorn v. Geuder, 171 Ill. 362, 49 N. E. 492. 42 Story, Eq. Pl. § 28; Chicot v. Lequesne, 2 Ves. Sr. 317; Winebrenner v. Colder, 43 Pa. 244.

43 Cowles v. Buchanan, 38 N. C. 374; Parker v. Carter, 4 Munf. (Va)