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.28 The title or caption of the bill is no part of it, either in respect to its statements or parties. 29

8 71. The introduction.

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.33 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

plains and says."

-; and thereupon your orator com

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. 33 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 which the court is called to act. upon 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.4 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)

plea is put in, the validity of the plea will be decided with reference to the stating part of the bill, and not with reference to the interrogating part, if it varies from it.11

73. The confederating part of the bill.

The fourth part of the bill contains a general allegation or charge of confederacy between the defendants and other persons to injure or defraud the complainant.

Among the causes which gave rise to the extraordinary jurisdiction of the court of chancery in England was the combination and confederacy of powerful lords to overawe or pervert the ordinary administration of justice. It is said that this part of the bill has reference to that fact.45 The practice is also said to have arisen from the erroneous idea that without it parties could not be added to the bill by amendment. It is quite superfluous, and, although it is frequently inserted, it is treated as mere surplusage; and it is said that the general charge of combination need not be denied or responded to, in the answer, when charged in the bill.47 If combination or confederacy is meant to be relied on as a ground of equitable jurisdiction, it

273, 6 Am. Dec. 513; Beall v. Blake, 10 Ga. 449. See, also, Wrigut v. Dame, 22 Pick. (Mass.) 55.

44 Story, Eq. Pl. § 27, citing Clayton v. Winchelsea, 3 Younge & C. Exch. 683. The equity of the complainant's case should be fully averred in the stating part; for if it should be stated only in the charging part, and thus consist only in the pretenses, the charges in answer to those pretenses, and the admissions, it has been held not to be suffi cient, for there ought first to be an equitable case averred, and then the pretenses and charges may properly be introduced to support it. Story, Eq. Pl. § 32, citing Flint v. Field, 2 Anstr. 543; Cooper, Eq. Pl. 11. It is said that perhaps the principle just laid down is too broadly stated, and that, if the material facts are specifically averred, there does not seem to be any positive rule of law which requires those facts to be averred in the stating part of the bill, and precede what is technically called the "charging part of the bill." Story, Eq. Pl. (9th Ed.) §32a, citing Houghton v. Reynolds, 2 Hare, 264.

82.

454 Minor, Inst. Com. & St. Law (2d Ed.) 1239 (1122).

+ Story, Eq. Pl. § 29; Mitford, Eq. Pl. 40.

41 Mitford, Eq. Pl. 41; Story, Eq. Pl. § 29; Oliver v. Haywood, 1 Anstr.

can be only in special cases, and then it must be specially, and not generally, charged.*

48

§ 74. The charging part of the bill.

The fifth part of the bill is called the "charging part," and is the statement of any anticipated defense, in order to show its futility. It is sometimes used for the purpose of obtaining a discovery of the defendant's case, or to put in issue some matter which it is not for the interest of the complainant to admit, for which purpose the charge of the pretense of the defendant is held sufficient.49 It has the further advantage of doing away with the necessity of a special replication, which was formerly used in rebuttal of the defense anticipated, and in laying the foundation for interrogatories and a discovery which is sought in reference to the matter of such defense. Thus, if a bill is filed on any equitable ground by an heir who apprehends his ancestor has made a will, he may state his title as heir, and, alleging the will by way of pretense on the part of defendants claiming under it, make it a part of his case without admitting it; for a charge in the bill of a definite pretense that a certain fact has taken place, sufficiently puts the fact in issue.50 Until a comparatively recent day, the charging part constituted no distinct allegation of the bill.51 The charging part is often omitted, and does not seem indispensable in any case. The rules of the supreme court of the United States leave it optional to insert it or not.52 It has been held that a defect in the charging part cannot be supplied by a subsequent interrogatory, and the interrogatories are to be construed by the charging part

48 Story, Eq. Pl. § 30; Stone v. Anderson, 26 N. H. 506; Mitford, Eq. Pl. 40, 41.

49 Mitford, Eq. Pl. 43; Story, Eq. Pl. § 31; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1239 (1123); Partridge v. Haycraft, 11 Ves. 575.

50 Story, Eq. Pl. § 31; Mitford, Eq. Pl. 43; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1239 (1123); Parker v. Carter, 4 Munf. (Va.) 288; Staf ford v. Brown, 4 Paige (N. Y.) 88.

51 Story, Eq. Pl. § 33; Cooper, Eq. Pl. 11.

52 4 Minor, Inst. Com. & St. Law (2d Ed.) 1239 (1123); Story, Eq. Pl. § 33; Cooper, Eq. Pl. 11; United States Equity Rule 21.