of a court of equity. If it fails in this respect, the error is fatal in every stage of the case, and cannot be cured by any waiver or course of proceedings by the parties, for consent cannot confer a jurisdiction not vested by law.131 A want of allegations in the bill to sustain the relief sought is as fatal as the lack of proof to show complainant entitled to such relief.132 No facts are properly in issue unless charged in the bill, and no proofs can be generally offered of facts not in the bill, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and the evidence, for the court pronounces its decree secundum allegata et probata. The reason for this is that the defendant may be apprised by the bill what the suggestions and allegations are against which he is to prepare his defense.133 Thus, where a bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the complainant is not, in general, entitled to a decree by establishing some one or more of the facts quite independent of fraud, which might of themselves create a case under a distinct head of equity from that which would be applicable to the case of fraud originally stated.134

It is, however, no objection that the case established by the proof is broader and stronger than that stated in the bill, or that grounds of relief not contained in the bill are established in evi

1311 Barbour, Ch. Pr. 39; Story, Eq. Pl. § 10.

132 Gernt v. Cusack, 106 Tenn. 141, 59 S. W. 335; Quinn v. McMahan, 40 Ill. App. 593; Bracken v. Preston, 1 Pin. (Wis.) 584, 44 Am. Dec. 412; 1 Barbour, Ch. Pr. 39; Crocket v. Lee, 7 Wheat. (U. S.) 522; Norburg v. Meade, 3 Bligh, 211; Hooper v. Strahan, 71 Ala. 75; Morris v. Tillson, 81 Ill. 607; Small v. Owings, 1 Md. Ch. 363; Lehigh Valley R. Co. v. McFarlan, 30 N. J. Eq. 180; Kilgore v. Redmill, 121 Ala. 485, 25 So. 766. 133 Story, Eq. Pl. § 257; Cooper, Eq. Pl. 5, 7; Kelly v. Kelly, 54 Mich. 30, 19 N. W. 580; Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Pigg v. Corder, 12 Leigh (Va.) 69; Moore v. Crawford, 130 U. S. 122; Fitzpatrick v. Beatty, 6 Ill. 454; Keen v. Maple Shade Land & Improvement Co. (N. J. Eq.) 48 Atl. 596; Hood v. Morgan, 47 W. Va. 817, 35 S. E. 911; Cleaver v. Matthews, 83 Va. 801, 3 S. E. 439.

134 Hoyt v. Hoyt, 27 N. J. Eq. 399 See, also, Bolgiano v. Cooke, 19 Md. 375.

dence, provided the decree is warranted by the charges and prayers of the bill, and the bill sustained by the evidence.135

§ 88. Amount involved must not be beneath the dignity of the court.

The case stated in the bill must not only be of a nature properly within the cognizance of a court of equity, but the amount claimed must be such as not to be beneath its dignity. Courts of equity sit only to administer justice in matters of grave interest to the parties. In England the rule of the courts of equity was not to entertain a bill under the value of ten pounds sterling, or forty shillings per annum in land, except in special cases, such as in cases of charity, in cases of fraud, and in cases of bills to establish a right of a permanent and valuable character, such as in the case of six shillings claimed to be due, as an Easter offering, or of a perpetual rent charge of five shillings.136 This rule was promulgated in a formal manner in Lord Bacon's ordinance, declaring that "all suits under the value of ten pounds are regularly to be dismissed." The exceptions to the rule were probably established at a later date.187 The same rule is said to prevail in courts of equity in America.138 It is held that, as a rule, the amount involved must not be under fifty dollars; 139 and it is held that where a city lot is assessed at only $2.50 for a street improvement, and sold for nonpayment, and the owner could redeem from the same by paying $3.90, the maxim, De minimis non curat lex, applies, and a court of equity will not restrain the execution of a deed, pursuant to such sale, if invalid.140

135 Ryerson v. Adams, 6 N. J. Eq. 618, cited with approval in Beach, Mod. Eq. Pr. § 100.

186 Story, Eq. Pl. § 500; Cooper, Eq. Pl. 165; Mitchell v. Tighe, Hopk. Ch. (N. Y.) 119. See Wilkinson v. Stitt, 175 Mass. 581, 56 N. E. 830. 137 Story, Eq. Pl. § 501; Cocks v. Foley, 1 Vern. 359.

138 Story, Eq. Pl. § 502. See Swedish Evangelical Lutheran Church v. Shivers, 16 N. J. Eq. 453; Carr v. Iglehart, 3 Ohio St. 457; Thiefes v. Mason, 55 N. J. Eq. 456, 37 Atl. 455; Goldey v. Becker, 1 Edw. Ch. (N. Y.) 271.

139 Mitchell v. Tighe, Hopk. Ch. (N. Y.) 119.

140 Mietzsch v. Berkhout (Cal.) 35 Pac. 321.

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.119

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

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.

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 at tached to the bill or not. Keach v. Hamilton, 84 Ill. App. 413.

121 The verification must be made before some duly authorized officer. 1221 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.128 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.12

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.

126 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.