Where by a bill is sought the discovery and payment of a lost or suppressed instrument, upon which, but for the loss or suppression, there would be a complete remedy at law, the bill will be demurrable, unless there is annexed to it an affidavit of the loss,107 Bills framed on the ground that the testimony of a witness may be lost by his death, or departure from the realm, before the case can be investigated in a court of law, must be verified.108 A bill of review, brought upon the discovery of new matter, should be verified.109 So should bills of interpleader,110 and bills praying a writ of ne exeat,111 and a supplemental bill in the nature of a bill of review.112 When a restraining order or preliminary injunction during the pendency of an action, and before final hearing, is sought, the bill must be sworn to,113 but it need only be verified when a restraining order or preliminary injunction is sought; and where the only relief prayed for is an injunction on the final hearing, no verification of the bill is required.114 Where a corporation is complainant, the bill, from the necessity of the case, must be veri

107 Story, Eq. Pl. § 478; Linconfelter v. Kelly, 6 J. J. Marsh. (Ky.) 339; Parson's Adm'r v. Wilson, 2 Overt. (Tenn.) 260. See, however, Cabell's Ex'rs v. Megginson's Adm'rs, 6 Munf. (Va.) 202.

108 Story, Eq. Pl. §§ 304, 309; Angell v. Angell, 1 Sim. & S. 83; Laight v. Morgan, 1 Johns. Cas. (N. Y.) 429; Mitford & T. Pl. & Pr. in Eq. 150, 242; Suffolk v. Green, 1 Atk. 450; Shirley v. Ferrers, 3 P. Wms. 77.

109 Story, Eq. Pl. § 412; Standish v. Radley, 2 Atk. 178; Cooper, Eq. Pl. 92; Mitford & T. Pl. & Pr. in Eq. 182.

110 Errington v. Attorney General, Bunb. 303; Manks v. Holroyd, 1 Cow. (N. Y.) 691; Edrington v. Allsbrooks, 21 Tex. 186; 2 Barbour, Ch. Pr. 121; Shaw v. Coster, 8 Paige (N. Y.) 339; Metcalf v. Hervey, 1 Ves. Sr. 248; Ammendale Normal Inst. v. Anderson, 71 Md. 128, 17 Atl. 1030; Bignold v. Audland, 11 Sim. 23. See post, § 777.

111 Rice v. Hale, 5 Cush. (Mass.) 238; Adams, Eq. 360.

112 Mitford & T. Pl. & Pr. in Eq. 188.

113 Hawkins v. Hunt, 14 Ill. 42; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1276 (1144); Merwin, Eq. & Eq. Pl. 522.

114 Hawkins v. Hunt, 14 Ill. 42; Sand Creek Turnpike Co. v. Robbins, 41 Ind. 79; Robinson v. Baugh, 31 Mich. 290. Where a preliminary injunction is asked upon facts not alleged to be within the knowledge of the defendant, the bill must be sworn to positively, either by the complainant or by some person from whom information of the facts was derived. Paterson v. Bangs, 9 Paige (N. Y.) 627.

fied by some officer or agent of the corporation.115 Bills which are to be verified by the oath of an agent or attorney for complainant should be drawn in the same manner as bills which are to be sworn to by the complainant himself, stating those matters which are within the personal knowledge of such agent or attorney positively, and those which he has derived from the information of others should be stated or charged upon the information and belief of the complainant. The oath of the agent or attorney verifying the bill should state that the agent has read it or heard it read, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated to be on the information and belief of the complainant, and that as to those matters the deponent believes it to be true.116 Where it is intended to apply for an injunction or a ne exeat upon a bill sworn to by an agent or attorney of the complainant, if any material allegation or charge that is necessary to be sworn to positively, to authorize the issuing of the injunction or ne exeat, is not within the personal knowledge of the agent or attorney, he should, in addition to his own verification, annex the affidavit of the person from whom he derived his information, swearing that he knows such allegation or charge to be true.117 A verification that a bill is true to the knowledge of complainant, "except as to the matters stated therein on information and belief," is defective.118 The verification of a bill praying a discovery, and the appointment of a receiver, by complainant, as being true "to the best of his knowledge, information, and belief," is insufficient.1

115 Bank of Orleans v. Skinner, 9 Paige (N. Y.) 305.

119

116 1 Barbour, Ch. Pr. 44, 45; Bank of Orleans v. Skinner, 9 Paige (N. Y.) 305; Pollard v. Southern Fertilizer Co., 122 Ala. 409, 25 So. 169. 117 1 Barbour, Ch. Pr. 48; Bank of Orleans v. Skinner, 9 Paige (N. Y.) 305.

118 Stirlen v. Neustadt, 50 Ill. App. 378; Brabrook Tailoring Co. v. Belding, 40 Ill. App. 326; Chicago Exhibition Co. v. Illinois State Board of Agriculture, 77 Ill. App. 350; Schilcer v. Brock, 124 Ala. 626, 27 So. 473.

119 Burgess v. Martin, 111 Ala. 656, 20 So. 506; Heffron v. Rice, 40 Ill. App. 244; Guyton v. Terrell (Ala.) 31 So. 83.

Where, on demurrer, it appears that the bill is not properly verified, it is proper to allow the amendment of such verification.120

§ 84. Form of jurat.

State of

SS.

County of

On this

day of A. D. - before me personally appeared the above-named A. B., who, being duly sworn, deposes and says that he is the complainant named in the foregoing bill [if it is signed by him, add the words "subscribed by him"; if made by some one else, state the relationship of the person verifying the bill to the complainant]; that he has read [or has heard read] said bill, and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters which are therein stated to be on his information or belief, and as to those matters he believes it to be true.

Subscribed and sworn to before me, this

A. B.

day of

A. D.

$85. General rules concerning bills-Certainty.

C. D., Notary Public.121

Having considered the frame of the bill, a more particular consideration of some of the general rules and principles applicable to the structure of original bills for relief seems proper. The bill must have a reasonable certainty, but need not set out the matter with that decisive and categorical certainty which is requisite in pleading at common law.122 It must be certain to a common intent, in respect to the case intended to be made by it, and the allegations in aid thereof,123 and should state the

120 Shannon v. Fechheimer, 76 Ga. 86. It is said that, since a demurrer admits the facts, it is immaterial whether an affidavit is attached to the bill or not. Keach v. Hamilton, 84 Ill. App. 413.

121 The verification must be made before some duly-authorized officer. 122 1 Barbour, Ch. Pr. 38; Story, Eq. Pl. § 240; Fitzpatrick v. Beatty, 6 Ill. 454; Chambers v. Chalmers, 4 Gill & J. (Md.) 420, 23 Am. Dec. 572; Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 21 Pa. 131; Taylor v. Holmes, 14 Fed. 498; Einstein v. Schnebly, 89 Fed. 540. 123 Hartwell v. Blocker, 6 Ala. 581; Story, Eq. Pl. § 240; Polk v. Rose, 25 Md. 153, 89 Am. Dec. 773

right, title, or claim of the complainant with accuracy and clearness, and should, in like manner, state the injury or grievance complained of, and the relief asked of the court. The other material facts ought to be plainly, yet succinctly, alleged, and with all necessary and convenient certainty as to the essential circumstances of time, place, manner, and other incidents.124 It should state the case so completely and circumstantially as to enable the chancellor from its face to determine whether he has jurisdiction, and to decide precisely what decree to render for complainant, supposing his bill to be true, unless the facts are out of complainant's knowledge, or are retained in the possession of his adversary, so that a disclosure becomes necessary, or some other circumstance exists which may justly form an exception to the rule.125 It is not enough merely to aver, in vague and general terms, that the defendant is liable to the complainant, and that he is entitled to a decree against the defendant. 126 To entitle a complainant to call for an answer to a statement in the bill, it must be introduced as a positive allegation, and not by way of recital.127

Uncertainty may arise in several ways: (1) The case intended to be made by the bill may be vague or uncertain. (2) Such case may be certain, but the allegations of the bill may be so vague and general as to constitute uncertainty. (3) Some material facts may be stated with certainty, and others with such indistinctness or incompleteness as to render insufficient

124 1 Barbour, Ch. Pr. 38; Mitford, Eq. Pl. 41; Cooper, Eq. Pl. 5; Story, Eq. Pl. § 241; Houghton v. Reynolds, 2 Hare, 266; Warner v. Warner, 33 Miss. 547; Lockhart v. Leeds (N. M.) 63 Pac. 48; Corbus v. Alaska Treadwell Gold-Min. Co., 99 Fed. 334.

125 Pennebaker v. Wathan, 2 A. K. Marsh. (Ky.) 315; Perkins v. Sanders, 56 Miss. 733; Loggie v. Chandler, 95 Me. 220, 49 Atl. 1059; Savage v. Worsham, 104 Fed. 18.

128 Smith v. Gill, 52 Miss. 607.

127 McIntyre v. Trustees of Union College, 6 Paige (N. Y.) 239; Gram

v. Stebbins, 6 Paige (N. Y.) 124. See, however, Investor Pub. Co. of Massachusetts v. Dobinson, 72 Fed. 603.

those with which they are connected, or upon which they depend. 128

§ 86. Allegations within and without complainant's knowledge.

It is a general rule that whatever is essential to the rights of the complainant, and is necessarily within his knowledge, ought to be alleged positively and with precision. On the other hand, the claims of the defendant may be stated in general terms. If matter essential to the determination of the complainant's claims is charged to rest in the knowledge of the defendant, or must of necessity be within his knowledge, and is consequently the subject of a part of the discovery sought by the bill, a precise allegation thereof is not required. Thus, in a bill for partition, it is sufficient if it is alleged that the defendant is seised in fee of, or otherwise entitled to, the other remaining undivided parts of the premises, though such an allegation by the complainant of his own title would be insufficient.129 But even when the fact rests within the knowledge of the defendant, if it constitutes a material allegation in the bill, and is the foundation of the suit, it must be clearly stated. Thus, if the bill seeks a discovery whether defendants are assignees, etc., it is insufficient to allege that the complainant has been informed that the defendants are assignees, but the fact must be positively averred,130

§ 87. Bill must state sufficient facts.

A bill must state a case within the appropriate jurisdiction

128 Story, Eq. Pl. § 242; Houghton v. Reynolds, 2 hare, 264; Wigram, Disc. (2d Ed.) 131, 136; Hartwell v. Blocker, 6 Ala. 581. See East India Co. v. Henchman, 1 Ves. Jr. 287; Ryves v. Ryves, 3 Ves. 343; Balls v. Margrave, 3 Beav. 284; Jones v. Jones, 3 Mer. 161; Frietas v. Dos Santos, 1 Younge & J. 574.

129 Story, Eq. Pl. § 255; Mitford, Eq. Pl. 41, 42; Baring v. Nash, 1 Ves. & B. 551; Lytle v. Breckenridge, 3 J. J. Marsh. (Ky.) 663; Uxbridge v. Staveland, 1 Ves. Sr. 56; Aikin v. Ballard, Rice Eq. (S. C.) 13; Watson v. Murray, 23 N. J. Eq. 257; Towle v. Pierce, 12 Metc. (Mass.) 329, 46 Am. Dec. 679; Morgan v. Smith, 11 Ill. 194.

130 Story, Eq. Pl. § 256; Uxbridge v. Staveland, 1 Ves. Sr. 56.