§ 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.

219 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.

226 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.

fendants in the same bill.228 No general rule can be laid down as to what constitutes multifariousness. The court must exercise a sound discretion in determining from the circumstances of each case whether the bill is liable to that objection. 229

Multifariousness may result from any one of three causes, viz.: (1) The joinder of distinct and independent matters, each of which would constitute a cause of action, in the same bill, brought by a single complainant against the same defendant;230 as, for example, where a bill prays for relief in respect to two separate and distinct matters, such as partition, and the foreclosure of a mortgage claim.231 (2) The demanding by several complainants in one bill of several distinct matters against one defendant; as, for example, where a tract of land is subdivided and sold in lots to different persons, who attempt to join in one bill against the vendor for a specific performance. (3) The joinder of several defendants in a suit upon distinct and independent matters; as, for example, an attempt on the part of the vendor in the last illustration to file one bill for a specific performance against all the purchasers of such lots.233

232

228 1 Barbour, Ch. Pr. 40; Story, Eq. Pl. § 271; Mitford, Eq. Pl. 181; Saxton v. Davis, 18 Ves. 80; Sherlock v. Village of Winnetka, 59 Ill. 389; Emans v. Emans, 13 N. J. Eq. 205; Merriman v. Chicago & E. I. R. Co., 24 U. S. App. 428, 64 Fed. 535; Bovaird v. Seyfang, 200 Pa. 261, 49 Atl. 958; Cutter v. Iowa Water Co., 96 Fed. 777.

229 Gaines v. Chew, 2 How. (U. S.) 619; Oliver v. Piatt, 3 How. (U. S.) 333; Chew v. Glenn, 82 Md. 370, 33 Atl. 722; Sherlock v. Village of Winnetka, 59 Ill. 389; Eastman v. Savings Bank, 58 N. H. 421; Edwards v. Sartor, 1 Rich. (S. C.) 266; Dillard v. Dillard, 97 Va. 434, 34 S. E. 60; Harrison v. Perea, 168 U. S. 311; Bliss v. Parks, 175 Mass. 539, 56 N. E. 566; Dennison Mfg. Co. v. Thomas Mfg. Co., 94 Fed. 652; Shields v. Thomas, 18 How. (U. S.) 253; Warren v. Warren, 56 Me. 360; Washington City Sav. Bank v. Thornton, 83 Va. 157, 2 S. E. 193; Chisholm v. Johnson, 106 Fed. 211; United States Mineral Wool Co. v. Manville Covering Co., 101 Fed. 145; Virginia-Carolina Chemical Co. v. Home Ins. Co. of New York, 113 Fed. 1; Cutter v. Iowa Water Co., 96 Fed. 777.

230 Story, Eq. Pl. § 271; 1 Barbour, Ch. Pr. 40; Cooper, Eq. Pl. 182 231 Belt v. Bowie, 65 Md. 350, 4 Atl. 295.

232 Story, Eq. Pl. §§ 271, 272; 1 Barbour, Ch. Pr. 40.

233 Story, Eq. Pl. §§ 271, 272; 1 Barbour, Ch. Pr. 40; Cooper, Eq. Pl. 182;

§ 108. Misjoinder of causes.

A bill in which are joined distinct and independent matters, each of which would constitute a cause of action, is bad for multifariousness.234 A reason given for this is the inconvenience of mixing up distinct matters which may require very different proceedings or decrees by the court, and embarrass the defendant in his proper defense against each.235 Illustrations

of bills held to be multifarious on this ground are: A bill which seeks to review a decree for errors apparent on its face, and to impeach and set it aside for fraud;236 a bill seeking to enforce a vendor's lien against the personal representative of the purchaser and a subpurchaser in possession, and also to establish a devastavit against the personal representative for misrepresenting the complainant's claim on the land;237 a bill seeking to foreclose a mortgage, and relief as a creditors' bill on the part of creditors at large to set aside a conveyance of real estate alleged to be fraudulent as to them.238

A bill is not multifarious because it seeks to enforce two series of bonds owned by the complainant, and issued by the same city to cover the cost of the same improvement, differ

Brookes v. Whitworth, 1 Madd. 86. For classifications of objections for multifariousness, see Benson v. Keller, 37 Or. 120, 60 Pac. 918; Campbell v. Mackay, 1 Mylne & C. 603; Alexander v. Alexander, 85 Va. 353, 7 S. E. 355, 1 L. R. A. 125. For classification proposed by Gibson, J., and quoted approvingly by Mr. Beach, see Von Auw v. Chicago Toy & Fancy Goods Co., 69 Fed. 450, citing approvingly Beach, Mod. Eq. Pr. § 129, Gibson, Suits in Ch. § 292; United States v. Guglard, 79 Fed. 21. 234 Cooper, Eq. Pl. 182; Story, Eq. Pl. § 280; Walker v. Powers, 104 U. S. 245; Tilman v. Searcy, 24 Tenn. 487; Marshall v. Means, 12 Ga. 61, 56 Am. Dec. 444; Kennebec & P. R. Co. v. Portland & K. R. Co., 54 Me. 173; Bedsole v. Monroe, 40 N. C. 313; Washington City Sav. Bank v. Thorn ton, 83 Va. 157, 2 S. E. 193; Farson v. City of Sioux City, 106 Fed. 278; Bovaird v. Seyfang, 200 Pa. 261, 49 Atl. 958.

235 Story, Eq. Pl. § 280; Cooper, Eq. Pl. 183; Attorney General v. St. John's College, 7 Sim. 241.

236 Gordon's Adm'r v. Koss, 63 Ala. 363.

237 Kinsey v. Howard, 47 Ala. 236.

238 Darcey v. Lake, 46 Miss. 109. See, also, Van Houten v. Van

Winkle, 46 N. J. Eq. 380, 20 Atl. 34; Watson v. United States Sugar Refinery, 34 U. S. App. 81, 68 Fed. 769.