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.**

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.46 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, Wrigu 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.

47 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.

of the bill.53 true statement.

This part of the bill should not contain any unIf the bill is sworn to, it is perjury for the complainant knowingly to make a false charge or averment in the charging part, as much as if he makes a false statement in the stating part.54

§ 75. The jurisdiction clause.

The sixth part of the bill is called the "jurisdiction clause," and is an averment that the complainant has no remedy save in a court of equity. The omission of this clause, however, will not render the bill defective, as it is a mere conclusion of law, and cannot confer jurisdiction. The bill must show a state of facts from which it is apparent that the court has jurisdiction. At best, the clause is a mere superfluity.55

§ 76. The interrogating part.

The seventh part of the bill is the interrogating part. It prays that the defendants may severally answer the matters contained in the bill, fully and on oath, not only according to their respective knowledge and remembrance of the facts stated, but also according to the best of their several and respective hearsay, information, and belief. This part is often highly useful in order to sift the conscience of the defendant.56 In the old forms of bill there were no special interrogatories. The practice of putting them in seems to have been derived from

53 Mechanics' Bank v. Levy, 3 Paige (N. Y.) 606. For cases involv. ing this part of the bill, see Beech v. Haynes, 1 Tenn. Ch. 569; Summer v. Caldwell, 2 Strob. Eq. (S. C.) 155.

54 Smith v. Clark, 4 Paige (N. Y.) 368. It is said that, if a bill sets forth a case within the jurisdiction of the court, the jurisdiction cannot be ousted by the anticipation and denial of possible defenses that may or may not be made. Atherton Machine Co. v. Atwood-Morrison Co., 102 Fed. 949.

55 Beach, Mod. Eq. Pr. § 87; Story, Eq. Pl. § 34; 1 Barbour, Ch. Pr. 36; Mitford, Eq. Pl. 43; Bateman v. Willoe, 1 Schoales & L. 204; Borie v. Satterthwaite, 180 Pa. 542, 37 Atl. 102; Goodwin v. Smith, 89 Me. 506, 36 Atl. 997.

se Story, Eq. Pl. §§ 35-38; Barton, Suit in Eq. 28-37; Cooper, Eq. Pl. 12; Mitford, Eq. Pl. 44, 45.

the civil law.57 The general interrogatory in a bill is sufficient to entitle the party to a full answer to all the matters stated, but, as experience proved that the substance of matters stated and charged in a bill may be frequently evaded by answering according to the letter only, it became the practice to add to a general request for an answer a repetition by way of interrogatory of the matters most essential to be answered, framed with such particularity and such variations as will prevent evasion and compel a full answer.58 These special interrogatories are sometimes of great importance in enlarging a general charge, and extending it to all minute and collateral circumstances attending the fact.59 The interrogatories must be founded upon the statements or charges in the bill, and cannot be more extensive than these. If there is nothing in the prior part of a bill to warrant a particular interrogatory, a defendant is not compellable to answer it.60 But upon a general statement of fact, every circumstance connected with it, and tending to prove or disprove it, may be inquired into."1 A defendant cannot be compelled to answer interrogatories based on a mere suggestion or hypothetical statement in the bill.62 Though he is not bound to answer an interrogatory not founded on antecedent matter stated or charged in the bill, if he does answer it, and the answer is replied to, the matter is put in issue.63 A defendant's

57 Story, Eq. Pl. §§ 38, 39.

58 1 Barbour, Ch. Pr. 36; Mitford, Eq. Pl. 44, 45; Story, Eq. Pl. § 35; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1240 (1124); Miles v. Miles, 27 N. H. 440; Langdon v. Goddard, 3 Story, 13, Fed. Cas. No. 8,061; Trustees of Methodist Episcopal Church v. Jaques, 1 Johns. Ch. (N. Y.) 65; Ames v. King, 9 Allen (Mass.) 258.

59 1 Barbour, Ch. Pr. 36.

60 Story, Eq. Pl. § 36; Mitford, Eq. Pl. 45; 1 Barbour, Ch. Pr. 36; James v. McKernon, 6 Johns. (N. Y.) 543; Gormully & Jeffery Mfg. Co. v. Bretz, 64 Fed. 612; Kisor v. Stancifer, Wright (Ohio) 323; Muckleston v. Brown, 6 Ves. 62; Attorney General v. Whorwood, 1 Ves. Sr. 538.

61 Story, Eq. Pl. § 37; 1 Barbour, Ch. Pr. 36; Bullock v. Richardson, 11 Ves. 375; Mitford, Eq. Pl. 45.

62 Grim v. Wheeler, 3 Edw. Ch. (N. Y.) 334.

63 Story, Eq. Pl. § 36; Attorney General v. Whorwood, 1 Ves. Sr. 538.

answers to specific interrogatories are evidence for him,64 and, if direct as to the matter about which he is interrogated, cannot be overcome by the opposing testimony of one witness, though the bill be sworn to, and its allegations stated on information and belief are at variance with the response.65 This is true, notwithstanding that a replication to the answer has been. put in.66 The interrogating part of a bill is not regarded as absolutely necessary.

67

§ 77. The prayer for relief.

The eighth part of the bill is the prayer for relief. This usually consists of two parts, viz.: The prayer for such specific relief as the complainant considers himself entitled to, and a prayer for such relief in the premises as the court shall think proper to grant, and as shall be agreeable to equity. The prayer for special relief is usually inserted for greater caution, and as a matter of convenience it is better that it should be introduced in connection with the general prayer. Yet it is not absolutely essential to the validity of the bill, as under the prayer for general relief the complainant may claim at the hearing a particular relief. As has been said by a learned authority, "Lest the case should present in evidence a new aspect, or the court should differ with him as to the appropriate relief, the complainant prays for 'such other and further relief as may be adapted to

64 Shultz v. Hansbrough, 33 Grat. (Va.) 567.

65 Spurlock v. Fulks, 1 Swan (Tenn.) 289. See post, § 648 et seq. 66 Hughes v. Blackwell, 59 N. C. 73.

67 4 Minor, Inst. Com. & St. Law (2d Ed.) 1241 (1124); Cooper, Eq. Pl. 11; Story, Eq. Pl. § 38. United States Equity Rules 40-44 require that the interrogatories shall be divided, as conveniently as may be, from each other, and numbered consecutively, and the interrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill.

68 1 Barbour, Ch. Pr. 37; Story, Eq. Pl. § 40; Cook v. Martyn, 2 Atk. 2; Palk v. Clinton, 12 Ves. 62; Tennessee Ice Co. v. Raine, 107 Tenn. 151, 64 S. W. 29; Annin v. Annin, 24 N. J. Eq. 184. In bills for charities, and bills on behalf of infants, suitable relief may be granted though not prayed. Stapilton v. Stapilton, 1 Atk. 6; Attorney General v. Brooke, 18 Ves. 325.