accusations of fraud will not suffice, but the facts must be stated which show the conduct complained of to be fraudulent.186 Where a bill alleges fraud as a ground to set aside a title, it must state specifically the facts and circumstances constituting the fraud, and also the time of its discovery.187 In charging combination to defraud, a general statement of the facts is sufficient. The facts and circumstances tending to establish it need not be minutely charged. It is sufficient if the facts which constitute the fraud are set forth, with an averment of their injurious result. The details of the circumstances which tend to establish the dishonest intent are more properly left to the evidence.188 A charge that the defendant, a vendor of land, "fraudulently misrepresented and concealed the nature and goodness of the conflicting claims, and the condition of his own claim," is too general.189

§ 99. Pleading documents.

Where a bill neither sets forth copies of instruments creating complainant's claim, nor avers their terms, it is demurrable.190 If documents are referred to, ordinarily, they should not be set out in haec verba, but the substance of such portions only of them as are necessary to a right understanding of the real matters of the bill need be set out.191 The rule in equity, as at law,

186 Lafayette Co. v. Neely, 21 Fed. 738; Witherspoon v. Carmichael, 41 N. C. 143; Steed v. Baker, 13 Grat. (Va.) 380; Twombly v. Kimbrough, 24 Ark. 459; Sterling Gas Co. v. Higby, 134 Ill. 557, 25 N. E. 660; Jones v. Massey, 79 Ala. 370.

187 Moore v. Greene, 19 How. (U. S.) 69; Johnson v. Johnson, 5 Ala. 90.

188 Story, Eq. Pl. § 252; Tong v. Marvin, 15 Mich. 60; Singleton v. Scott, 11 Iowa, 589; Farnam v. Brooks, 9 Pick. (Mass.) 212; Lewis v. Lewis, 9 Mo. 183, 43 Am. Dec. 540.

189 Jasper v. Hamilton, 3 Dana (Ky.) 280.

190 Marshall v. Turnbull, 34 Fed. 827.

191 Story, Eq. Pl. § 241; East India Co. v. Henchman, 1 Ves. Jr. 287; Hood v. Inman, 4 Johns. Ch. (N. Y.) 437; United States Equity Rule 26. In some jurisdictions it seems necessary to make documents on which the bill is based exhibits thereto. Nagengast v. Alz, 93 Md 522, 49 Atl. 333.

is that the party pleading a contract is only obliged to state it according to its legal effect.192 Documents inserted in haec verba, where otherwise fully described in the bill, will be stricken out as impertinent, and, if set out in a schedule annexed in haec verba, the schedule may also be stricken out.193 It is not necessary to file, as an exhibit to a bill, papers on which complainant does not rely as the foundation of his suit, but only as evidence of an admission by the defendant.194 A general reference in a bill to charges of another bill in a different cause, though in the same court, will not make such charges a part of it. A bill must be complete in itself, by proper averments and exhibits attached.195 Documents appended to pleadings as exhibits are as fully a part of the pleadings as if incorporated therein.196 Whenever any question in the cause is likely to turn

192 Meers v. Stevens, 106 Ill. 549; 2 Daniell, Ch. Pl. & Pr. (Perkins' Ed.) 857.

193 Goodrich v. Parker, 1 Minn. 195 (Gil. 169).

194 Trapnall v. Byrd's Adm'r, 22 Ark. 10.

195 Moses v. Brodie, 1 Tenn. Ch. 397; Carr v. Bob, 7 Dana (Ky.) 417. See, however, Daniel v. Smythe, 5 B. Mon. (Ky.) 347; Mason v. Jones, 1 Hayw. & H. 329, Fed. Cas. No. 9,240; Bolton v. Flournoy, R. M. Charlt. (Ga.) 125.

196 Kester v. Lyon, 40 W. Va. 161, 20 S. E. 933; Surget v. Byers, Hemp. 715, Fed. Cas. No. 13,629; Byers v. Surget, 19 How. (U. S.) 303; Minter v. Branch Bank at Mobile, 23 Ala. 762. See McGowan v. McGowan, 48 Miss. 533; Caton v. Willis, 40 N. C. 335. "In Harvey v. Kelly, 41 Miss. 490, 493, the late Chancellor Ellett, * who was

an elegant pleader of the old school, well versed in the law of good pleading, under both ancient and modern forms, says: 'It is indeed admissible to a certain extent, in pleading in chancery, to file written evidence as exhibits, and to refer to them as a part of the bill or answer; but good pleading requires that everything that is material to the case should be set forth in the pleading itself by proper averments. This may be done in general terms, and the exhibit may be referred to for greater certainty as to particular details, but the pleading ought to contain the substance of the case.' No authority says that an indefinite, general, and wholly undefined statement of the invention or other thing in controversy, without exhibiting the document describing it, shall, by mere reference to the document, stand for a specific statement or description in the bill; or that a general statement, accompanied by an exhibit of the document, or a copy of it, meets the rule of good pleading which we have above stated, with the reasons

upon the precise words of an instrument, as in the case of a bill filed for the establishment of a particular construction of a will which is informally or inartificially worded, in such a bill the words which are the subject of the discussion ought to be accurately set out, in order to more specifically point the attention of the court to them. Indeed, whenever informal instruments are insisted on, upon the construction of which any difficulty is likely to arise, the written instruments relied on, or at least the material parts of them, should be set out in haec verba. In many cases, the expressions of the instrument or writing are such that any attempt to state their substance, without introducing the very words in which they are expressed, would be ineffectual, and it is best that they should be set forth.197 Where

for its requirement. In Daniell, Ch. Pr., it is said that "it is usual to refer to the instrument in some such words as the following, viz., “as by the said indenture, when produced, will appear"; and the effect is to make the whole document a part of the record.' 1 Daniell, Ch. Pr. (5th Ed.) 367; Id. (1st Ed.) 476. But this does not say that the bill in such a case shall not, by proper allegation, inform the defendant of the nature of the document, but is a rule to give the plaintiff the benefit of the averring part without reciting it in haec verba, or exhibiting it, as the author says; and in the very next text he condemns the inconvenience of this indulgence, and says: 'It is always neces sary, in drawing bills, to state the case of the plaintiff clearly, though succinctly, upon the record; and, in doing this, care should be taken to set out precisely those deeds which are relied upon, and those parts of the deeds which are most important to the case.' 1 Daniell, Ch. Pr. (5th Ed.) 368; Id. (1st Ed.) 476." Electrolibration Co. v. Jackson, 52 Fed. 773; King v. Trice, 38 N. C. 568.

1971 Daniell, Ch. Pl. & Pr. (4th Ed.) 363; Einstein v. Schnebly, 89 Fed. 540, holding that, where the agreements are not free from ambiguity, no rule of pleading is violated in setting them forth in full, together with the construction placed upon them by the complainant. Where the language used by the parties to a contract is of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, influence. City of Chicago v. Sheldon, 9 Wall. (U. S.) 50.

In referring to proceedings in other cases, the following forms are used: "As by said pleadings [or "by said pleadings and other proceedings"; or "by said bill, decree, and other proceedings"; or "by said proceedings and decree"; or "by said bill, answer, and proceedings,"-changing the same to suit the circumstances of the par

there is an inconsistency between an averment in a bill and a written instrument attached thereto as an exhibit, the latter must prevail.198

§ 100. Allegations on information and belief.

An allegation in a bill that the complainant is "informed," or that he is "advised and believes," or "is informed and believes," or "is of opinion" that a material fact exists, is not an averment that such fact exists;199 but an allegation that complainant "has been informed and believes, and therefore avers," is a sufficiently

ticular case] now remaining as of record in this honorable court or if some other court, describe the same], reference thereunto being duly had, will more fully appear." 2 Barbour, Ch. Pr. 536-572; Curtis, Eq. Prec. 127. Where a written document is made an exhibit to the bill, the same should be referred to, substantially as follows: Describe generally the nature of the instru ment, and add: "As will more fully appear by the said [here describe the instrument; as, for example, deed, will, mortgage, trust deed, or writing, etc.], when produced, and by a copy thereof hereto attached, marked 'Exhibit A,' and made a part of this bill." See Swetland v. Swetland, 3 Mich. 482; Lowenstein v. Rapp, 79 Ill. App. 678. In Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 588, the court said: "While the bill is very imperfect in form, and, without the exhibits filed with it, would undoubtedly be bad upon demurrer, the plaintiff asks that the exhibits be read and treated as parts of his bill, which makes them as much parts of it as if incorporated in it. 1 Barbour, Ch. Pr. 278; Johnson v. Anderson, 76 Va. 766; Thompson v. Clark, 81 Va. 422."

198 National Park Bank of New York v. Halle, 30 Ill. App. 17; Lockhead v. Berkeley Springs Waterworks & Improvement Co., 40 W. Va. 553, 21 S. E. 1031; Dreyer v. Goldy, 62 Ill. App. 347; Wagner v. May. nard, 64 Ill. App. 244; North v. Kizer, 72 Ill. 172; Greig v. Russell, 115 Ill. 484; Moore v. Titman, 33 Ill. 358. See, however, Holman v. Patterson's Heirs, 29 Ark. 357. In Barrett v. Central Building & Loan Ass'n (Ala.) 30 So. 347, it was held that a repugnancy between the averments of a bill and the exhibits thereto attached rendered the bill subject to demurrer. See Little v. Snedecor, 52 Ala. 167. In Grace v. Oakland Bldg. Ass'n, 63 Ill. App. 339, it is held that where a statement of a supposed fact is unnecessarily in an exhibit, and the bill contains an averment that the fact is otherwise, upon demurrer the averment of the bill is to be taken as true.

199 Jones v. Cowles, 26 Ala. 612; Cameron v. Abbott, 30 Ala. 416; Lucas v. Oliver, 34 Ala. 626; Ex parte Reid, 50 Ala. 439; Messer v. Storer, 79 Me. 512, 11 Atl. 275; Carter v. Lyman, 33 Miss. 171.

positive averment.200 So, allegations made in the form of direct and positive statements of facts, with the additional words, "as your orator is informed and believes," are averments of the facts, together with a statement of the complainant's source of knowledge, and not merely averments of his confidence in the truth of the representations. 201 Where matter essential to the determination of the claims of the complainant is charged to rest in the knowledge of the defendant, or must of necessity be within his knowledge, and is consequently a part of the discovery sought by the bill, it may be stated on the information and belief of the complainant, followed by a statement that he therefore charges the fact to be true.202 It is held that an averment of facts upon information and belief, if the bill afterwards avers that such information is derived from the defendant, is a sufficient averment of knowledge to sustain an injunction.203 When the averment is that the complainant is informed and believes that certain things are true, the demurrer admits the fact that the complainant is so informed, and does so believe, but not that such information is true.204

§ 101. Matters of argument and evidence.

The practice of setting forth arguments in support of the equities relied on in a bill is not approved. 205 The bill should contain a statement of the essential facts of the case presented, but not the evidence of those facts.206

200 Wells v. Bridgeport Hydraulic Co., 30 Conn. 316, 79 Am. Dec. 250. 201 Coryell v. Klehm, 157 Ill. 462, 41 N. E. 864.

202 Campbell v. Paris & D. R. Co., 71 Ill. 611.

203 Cole v. Savage, 1 Clarke Ch. (N. Y.) 361. See, also, Leavenworth v. Pepper, 32 Fed. 718. Mr. Justice Story says: "It is not a sufficient allegation of a fact in a bill to say that one of the defendants alleges and the plaintiff believes the statement to be true, for the defendant may allege that which is quite false, and the plaintiff may believe it to be true. But the fact should be positively alleged by the plainuff in his bill." Story, Eq. Pl. § 241; Egremont v. Cowell, 5 Beav. 620.

204 Walton v. Westwood, 73 Ill. 126; Ex parte Reid, 50 Ala. 439. 205 Weisman v. Heron Min. Co., 57 N. C. 112; Hood v. Inman, 4 Johns. Ch. (N. Y.) 437; Chambers v. Chalmers, 4 Gill & J. (Md.) 420, 23 Am. Dec. 572.

206 Winebrenner v. Colder, 43 Pa. 244; Dennis v. Dennis, 15 Md. 73.