102. Legal conclusions not to be stated.

It is a general rule that a bill must state the facts, and not conclusions of law.207

§ 103. Matters judicially noticed.

The complainant need not, and indeed should not, state any matters of which the court is bound judicially to take notice. Hence he need not state matters of law or legal presumption, or recite public acts or laws, or aver facts which the courts are bound judicially to know, such as the divisions of counties, the recognition of foreign governments by our own, the course of practice or proceeding in the court itself, or any other facts of a like public nature, which do or may concern the general administration of public justice. A strong illustration of this general rule may be found in the right and duty of the federal courts to take judicial notice of the ports and waters of the United States in which the tide ebbs and flows, to take like notice of the boundaries of the several states and judicial districts, and of the laws and jurisprudence of the several states.208 The laws

It need not set out all the minute facts which are to be proved. The general statement of precise details is usually sufficient. Nesmith v. Calvert, 1 Woodb. & M. 34, Fed. Cas. No. 10,123; Wilson v. Eggleston, 27 Mich. 257; Dunham v. Eaton & H. R. Co., 1 Bond, 492, Fed. Cas. No. 4,150; Camden & A. R. Co. v. Stewart, 19 N. J. Eq. 343. It is said to be proper to state in a bill, not only any issuable fact, but any matter of evidence or collateral facts, the admission of which by the defend. ant may be material, in establishing the general allegations of the bill as a pleading, or in ascertaining or determining the nature or the extent of the relief the complainant may be entitled to consistently with the bill, and such matter cannot be excepted to as impertinent. Goodrich v. Parker, 1 Minn. 195 (Gil. 169).

207 Wootten v. Burch, 2 Md. Ch. 198; Dennis v. Dennis, 15 Md. 73; Kedzie v. West Chicago Park Com'rs, 114 Ill. 280; Sterling Gas Co. v. Higby, 134 Ill. 557, 25 N. E. 660. It is only necessary to state the facts, and is generally improper to state matters of law, unless, perhaps, law and fact be so blended as to render it necessary to state both. Kelly's Heirs v. McGuire, 15 Ark. 555.

208 Story, Eq. Pl. § 24; Owings v. Hull, 9 Pet. (U. S.) 607; Gormley v. Bunyan, 138 U. S. 623; Fitzgerald v. Evans, 49 Fed. 426; Merchants' Exchange Bank of Milwaukee v. McGraw, 15 U. S. App. 332, 59 Fed.

and jurisprudence of foreign nations must be averred in the bill, and, when material, must, if denied, be proved like any other facts.209 State courts take judicial notice of the federal constitution and statutes,210 but not of the laws of other states of the Union.211

$ 104. Admissions of defendant.

In England it was held that, if the bill meant to rely upon any confessions, conversations, or admissions of the defendant as proof of any facts charged in the bill, it must be expressly stated what the confessions, admissions, or conversations were, and to whom made; otherwise, no evidence thereof would be admitted at the hearing.212 The 1ule is not believed to prevail in America,213

972. See, also Secrist v. Petty, 109 Ill. 188; Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed. 570; Howard v. Moot, 64 N. Y. 262; Dixon v. Niccolls, 39 Ill. 372, 89 Am. Dec. 312; Bittle v. Stuart, 34 Ark. 224; Parks v. Jacob Dold Packing Co., 6 Misc. Rep. 570, 27 N. Y. Supp. 289;, King v. American Transp. Co., 1 Flip. 1, Fed. Cas. No. 7,787; Mutual Benefit Life Ins. Co. v. Robison, 19 U. S. App. 266, 58 Fed. 723, 22 L. R. A. 325; U. S. v. One Thousand Five Hundred Bales of Cotton, 1 Am. Law Rec. 93, Fed. Cas. No. 15,958; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; People v. Williams, 64 Cal. 87, 27 Pac. 939.

209 Story, Eq. Pl. § 24; Strother v. Lucas, 6 Pet. (U. S.) 763; Brackett v. Norton, 4 Conn. 517, 10 Am. Dec. 179; Chapman v. Colby, 47 Mich. 46, 10 N. W. 74; Peck v. Hibbard, 26 Vt. 698, 62 Am. Dec. 605.

210 Graves v. Keaton, 3 Cold. (Tenn.) 8; Schwerdtle v. Placer County, 108 Cal. 589, 41 Pac. 448.

211 Brackett v. Norton, 4 Conn. 517, 10 Am. Dec. 179; Mason v. Wash, 1 Ill. 39, 12 Am. Dec. 138. It is beyond the scope of this work to consider what matters will be judicially noticed by the courts. The reader is referred to the text books on evidence, and digests, for that subject. See the works of Greenleaf, Rice, Gresley (Equity Evidence), Thayer, and American Digest (Century Edition) vol. xx., §§ 1-72.

212 Story, Eq. Pl. §§ 263, 265a; Earle v. Pickin, 1 Russ. & M. 547; Gresley, Eq. Ev. 288; Hall v. Maltby, 6 Price, 240.

218 Story, Eq. Pl. § 265a; Smith v. Burnham, 2 Sumn. 612, Fed. Cas. No. 13,018. In Bishop's Heirs v. Bishop's Administrator and Heirs, 13 Ala. 475, it is held that it is only necessary to allege the facts on which the relief is sought, and, though we proof of the facts consists in the admissions of the opposite party, it is not necessary to allege in the bill that such admissions were made. See, also, Bailey v. Wright, 24

$105. Inconsistent allegations.

A bill should not set up different and distinct causes of action which destroy each other.214 Where there are some allegations showing a case entitling complainant to relief, and these are contradicted by other allegations, and it is impossible to determine the true nature of the case sought to be made by the bill, the bill is demurrable. 215 Specific facts alleged in the bill will control general averments stated by way of inference or conclusion merely.216 A variance in setting out the contract in a bill for specific performance, where the language used in the bill signifies the same thing as that used in the contract, is immaterial.217

§ 106. Bills with a double aspect.

A bill may be framed with a double aspect, so that, if one

Ark. 73; Cannon v. Collins, 3 Del. Ch. 132; Brandon v. Cabiness, 10 Ala. 156. See supra, § 93.

214 Hart v. McKeen, Walk. (Mich.) 417; Collins v. Knight, 3 Tenn. Ch. 183; Heyer v. Bromberg, 74 Ala. 524; Williams v. Jackson, 107 U. S. 478; Walthall's Ex'rs v. Rives, 34 Ala. 91; Merriman v. Chicago & E. I. R. Co., 24 U. S. App. 428, 64 Fed. 535; Micou v. Ashurst, 55 Ala. 612.

215 Bridger v. Thrasher, 22 Fla. 383. Illustrative of repugnant allegations in bills are Cramer v. Watson, 73 Ala. 127; Howell v. Merrill, 30 Mich. 282; Leonard v. Cook (N. J. Eq.) 20 Atl. 1085; Rankin v. Jones, 55 N. C. 169; Cumberland Valley R. Co.'s Appeal, 62 Pa. 218; Bynum v. Ewart, 90 Tenn. 655, 18 S. W. 394; Friedman v. Fennell, 94 Ala. 570, 10 So. 649; Brooks v. Lowenstein, 124 Ala. 158, 27 So. 520; Cutter v. Iowa Water Co., 96 Fed. 777. For instances of bills containing allegations held not to be inconsistent, see Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; Lingan v. Henderson, 1 Bland (Md.) 236.

216 Connors v. Connors, 4 Wis. 112.

217 McWhorter v. McMahan, 10 Paige (N. Y.) 386; Hungerford v. Cushing, 8 Wis. 332. On demurrer to a bill for repugnancy, where but one clause in the bill was subject to such imputation, and that clause was unnecessary, the court ordered that clause to be stricken out, and overruled the demurrer. Socola v. Grant, 15 Fed. 487. It is the alternative statement of a fact in a bill, when repugnant and inconsistent, and not the alternative relief prayed, which renders the bill demurrable. Lyons v. McCurdy, 90 Ala. 497, 8 So. 52; Faulk v. Calloway, 123 Ala, 325, 26 So. 504.

ground fail, the complainant may rely on another, which may be inconsistent with the former, but the alternative case stated must be the foundation for precisely the same relief.218 Where the complainant is ignorant of the facts, he may allege his ignorance, call for a discovery, and frame his prayer so as to obtain such relief as it may appear he is entitled to; or where, upon the facts stated, he is uncertain as to the relief to which he is entitled, he may ask for alternative relief.219 Where a bill for partition alleged that a pretended will, under which defendants claimed title to a part of the premises, was invalid, and prayed that it might be annulled, or, in case the same should be decreed to be valid, then that the complainant might have a partition of the premises, it was held that, if the complainant was ignorant whether the alleged devise to the defendants was valid or invalid, the statements in the bill, as well as the prayer for relief, should have been so framed as to present the case in a double aspect.220 A creditors' bill cannot be filed to set aside a conveyance as fraudulent, or to have it declared and enforced as a general assignment, inuring to the equal benefit of all the creditors.221 A bill may pray for alternative relief, provided the prayer is consistent with the facts stated in the bill, when the complainant cannot foresee the result of his suit, or when the bill has a double aspect.222 A bill may be originally framed with a double aspect, or it may be so amended as to be of that character; but the alternative case stated must be the founda

218 Story, Eq. Pl. § 254; Brown v. Bedford City Land & Improvement Co., 91 Va. 31, 20 S. E. 968; McConnell v. McConnell, 11 Vt. 290; Foster v. Cook, 8 N. C. 509; Rapier v. Gulf City Paper Co., 69 Ala. 476; Caldwell v. King, 76 Ala. 149; Bradley v. Converse, 4 Cliff. 366, Fed. Cas. No. 1,775; Merriman v. Chicago & E. I. R. Co., 64 Fed. 535, 24 U. S. App. 428; Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; Ritchie v. Sayers, 100 Fed. 520.

210 Lloyd v. Brewster, 4 Paige (N. Y.) 537; Ritchie v. Sayers, 100 Fed. 536; Tennant v. Dunlop, 97 Va. 234, 33 S. E. 620.

220 McCosker v. Brady, 1 Barb. Ch. (N. Y.) 329.

221 Moog v. Talcott, 72 Ala. 210.

222 Tennessee Ice Co. v. Raine, 107 Tenn. 151, 64 S. W. 29; Gibson, Suit in Ch. § 183; Hill v. Harriman, 95 Tenn. 300, 32 S. W. 202.

tion for precisely the same relief.223 A complainant, if not certain as to the specific relief to which he is entitled, may frame his prayer in the alternative, so that, if one kind of relief is denied, another may be granted, the relief of each kind being consistent with the case made by the bill.224 If the complainant is entitled to either relief prayed, the defendant cannot demur because, under the allegations of the bill, the complainant is not entitled to the other kind of relief. His remedy is to insist at the hearing that the complainant be confined to such relief only as he is entitled to under all the circumstances as then presented. 225 A bill stating two inconsistent causes of action, where the right to recover upon one theory is destructive of the right to recover upon the other, cannot be maintained; but upon a given case there may be prayers for consistent alternative relief; but alternative and inconsistent cases, coupled with prayers for alternative and inconsistent relief, may not be stated.226

§ 107. Bills should not be multifarious.

The bill should not be multifarious. If so, it is demurrable, and may be dismissed by the court of its own accord, even if not objected to by the defendant.227

By multifariousness is meant the improperly joining in one bill of distinct and independent matters; as, for example, the uniting in one bill of several matters perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature against several de

223 Shields v. Barrow, 17 How. (U. S.) 130; Cutter v. Iowa Water Co., 96 Fed. 777; Fisher v. Moog, 39 Fed. 665.

224 Virginia-Carolina Chemical Co. v. Home Ins. Co. of New York, 113 Fed. 1; Hardin v. Boyd, 113 U. S. 756; Terry v. Rosell, 32 Ark. 478; Colton v. Ross, 2 Paige (N. Y.) 396; Lingan v. Henderson, 1 Bland (Md.) 252; Murphy v. Clark, 1 Smedes & M. (Miss.) 236.

225 Florida Southern R. Co. v. Hill, 40 Fla. 1, 23 So. 566; Western Ins. Co. v. Eagle Fire Ins. Co., 1 Paige (N. Y.) 284.

228 Merriman v. Chicago & E. I. R. Co., 24 U. S. App. 428, 64 Fed. 535; Cutter v. Iowa Water Co., 96 Fed. 777.

227 Story, Eq. Pl. § 271; 1 Barbour, Ch. Pr. 40; Mitford, Eq. Pl. 181; Cooper, Eq. Pl. 182.