of the bill.53 This part of the bill should not contain any untrue statement. If 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.

ce 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.61 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. A defendant's

57 Story, Eq. Pl. §§ 38, 39.

63

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.

591 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.68 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.

681 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.

the nature of the case, and agreeable to equity and good conscience.' "69 A prayer for specific relief, therefore, in complicated cases, should be framed with great caution, and, if need be, in several aspects, so that, if the court determines against the complainant in one aspect of the case, it may grant relief in another.70 Where the case made by the bill may entitle complainant to one of two kinds of relief sought, but not to both, the prayer should be in the disjunctive." The proper case for a bill praying relief in the alternative is where the complainant is not certain as to the specific relief to which he is entitled, or the nature of the relief depends upon the existence or nonexistence of a particular fact or circumstance known to defendant, and of which a discovery is sought by the bill.72 A bill may be framed in the alternative, asking relief against A., if he has authorized B. to collect money due by judgment, and against B., if he has collected without authority.73 In a suit to recover property procured by fraud, the prayer may be that the complainant recover the specific property or its value.74 Where a party prays relief in the alternative, if the complainant is entitled to relief in either of the modes prayed for, a demurrer will not lie. The prayer of a bill is an essential part of it, and without its insertion no decree can be rendered for the complainant;76 and where there is no prayer for general relief, the

69 4 Minor, Inst. Com. & St Law (2d Ed.) 1241 (1125); Holden v. Holden, 24 Ill. App. 106; Penn v. Fogler, 182 Ill. 76, 55 N. E. 192. In Cook v. Martyn, 2 Atk. 3, Lord Hardwicke states that an eminent counsel used to say that general relief was the best prayer next to the Lord's Prayer; cited in Story, Eq. Pl. § 41, note. See Rigney v. De Graw, 100 Fed. 221.

70 4 Minor, Inst. Com. & St. Law (2d Ed.) 1241 (1125).

71 Colton v. Ross, 2 Paige (N. Y.) 396, 22 Am. Dec. 648; Ward v. Ward, 54 N. C. 334; Brown v. Wylie, 2 W. Va. 502, 98 Am. Dec. 781.

72 Lloyd v. Brewster, 4 Paige (N. Y.) 537, 27 Am. Dec. 88; Downey v. Lancy, 178 Mass. 465, 59 N. E. 1015.

78 Thomason v. Smithson, 7 Port. (Ala.) 144.

74 Hubbard v. Urton, 67 Fed. 419.

75 Western Ins. Co. v. Eagle Fire Ins. Co., 1 Paige (N. Y.) 284; Gaunt v. Froelich, 24 Ill. App. 303.

76 Driver v. Fortner, 5 Port. (Ala.) 9.

court is confined to the prayer for special relief, and can grant no other relief." Usually, a prayer for general relief, without a special prayer of the particular relief to which the complainant thinks he is entitled, will be sufficient, and the particular relief which the case requires may at the hearing be prayed at the bar. This as a general rule may be true, but it is not universal. Thus, for example, an injunction will not ordinarily be granted under a prayer for general relief, but it must be expressly prayed, because the defendant might by his answer make a different case under the general prayer from what he would if an injunction were specially prayed. So, a writ of ne exeat republica will not ordinarily be granted unless expressly prayed for in the bill.78

$78. Prayer for process.

The ninth part of the bill prays the court to enforce the appearance and answer of the defendants by the writ of subpoena, or, in some states, a summons. It is said that a bill in equity which contains no prayer for process is bad on demurrer.79 In most jurisdictions, care should be taken in this part of the bill to insert the names of all persons who are intended to be made parties; for it is a general rule that none are parties, although named in the bill, against whom process is not prayed.80 Thus it has been held that the persons named in the title (which is no part of the bill) and stating part of the bill as the authors of the wrong complained of are not thereby made defendants, so that process of subpoena, or publication, must be prayed

77 Loggie v. Chandler, 95 Me. 220, 49 Atl. 1059.

18 Story, Eq. Pl. §§ 41, 43; Amberg v. Nachtway, 92 Ill. App. 608; Walker v. Converse, 148 Ill. 622, 36 N. E. 202; Tennessee Ice Co. v. Raine, 107 Tenn. 151, 64 S. W. 29. See, also, Primmer v. Patten, 32 Ill. 528; Willett v. Woodhams, 1 Ill. App. 411; Wilkinson v. Beal, 4 Madd. 408; Holden v. Holden, 24 Ill. App. 106; French v. Commercial Nat. Bank, 79 Ill. App. 118; Lane v. Union Nat. Bank of Chicago, 75 Ill. App. 299.

70 Wright v. Wright, 8 N. J. Eq. 143.

80 Cooper, Eq. Pl. 16; Story, Eq. Pl. § 44; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1242 (1125); Keen v. Jordan, 13 Fla. 327.