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an alien; but the averment that the complainants are "all of Cognac, France, and citizens of the Republic of France," was held to be adequate.31 An allegation that the State of which a party is a citizen is unknown, is insufficient when the jurisdiction is claimed for difference of citizenship.3 32

Where a bill or a common-law pleading is filed or served subsequent to the commencement of the suit, it should aver the citizenship of the parties at the time the suit was commenced as well as in the present tense.33 It has been held, that an allegation that a corporation has a place of business within the district, when admitted in the answer, relates to the time when the suit was brought.34

How advantage could be taken of an omission in the introduction of the residence of the parties, whether by demurrer or simply by a motion for security for costs, was, under the old practice, a doubtful question.35 It was held: that a bill was not demurrable for the failure to state the residence of a party; 36 and that where the jurisdiction does not depend upon a difference of citizenship, such as a case arising out of the bankruptcy laws, an omission to aver the citizenship of the parties does not make the bill demurrable, but that the objection can be made by motion only; 37 and that an allegation of the residence of the parties is not required in a pleading at common law.38 The bill was certainly demurrable if enough did not appear upon its face to show the court's jurisdiction.39 It has been suggested that a de

Valley Ry. Co. v. O'Hara, C. C. A., 196 Fed. 945, held that an averment that plaintiff is now, and at all times hereinafter mentioned was, a citizen of Ireland," was a sufficient allegation that he was an alien.

31 Hennessy v. Richardson Drug Co., 189 U. S. 25, 47 L. ed. 697.

32 Tug River C. & S. Co. v. Brigel, 67 Fed. 625.

33 Lackey v. Newton Min. Co., 56 Fed. 628.

34 Streat v. Am. Rubber Co., 115 Fed. 634.

35 Rowley v. Eccles, 1 Sim. & S. 511; Daniell's Ch. Pr. (2d Am. ed.)

36 Vermont Mach. Co. v. Gibson, 50 Fed. 233; (a patent case); Harvey v. Richmond & M. Ry. Co., 64 Fed. 19; (a case of difference of citizenship); Wright v. Skinner, 136 Fed. 694; (a bankruptcy case). 37 Wright v. Skinner, 136 Fed. 694.

38 Balt. & O. R. Co. v. Doty, C. C. A., 133 Fed. 866.

39 Bingham v Cabot, 3 Dall. 382, 1 L. ed. 646; Jackson v. Ashton, 8 Pet. 148, 8 L. ed. 898; U. S. v. Pratt C. & C. Co., 18 Fed. 708; Lackey v. Newton Min. Co., 50 Fed,

634.

1

T

fect in this respect in the introductory part of a bill is not cured by an allegation in its title or caption.40 It has been said that no one can be made a defendant under a fictitious name; 41 but in an English case where the parents of an infant, who was a necessary defendant to a bill, refused to have her baptized in order to interpose difficulties in the plaintiff's way, Sir John Leach ordered that she should be described as the youngest female child of A. B. (naming her father) and C. D. (naming her mother).42 Where the complainant is assignee of the cause of action, it is the safer practice to allege the citizenship of his assignor.43

An admission on the trial of "the liability of defendant in this case and everything as alleged except the measure of damages," is insufficient to show the jurisdiction of the court.44

Where the jurisdiction does not depend upon difference of citizenship, the bill should state, here or elsewhere, the facts showing that it arises under the Constitution or laws of the United States or is justified by some other Federal statute.

45

The bill should also state, here or elsewhere, the facts which show that the matter in dispute exceeded the jurisdictional amount, at the time when suit was brought,47 unless the case be one of which the District Courts of the United States takes

46

40 Jackson v. Ashton, 8 Pet. 148, 8 L. ed. 898. See Sharon v. Hill, 23 Fed. 353; Railway Co. v. Ramsey, 22 Wall. 322, 22 L. ed. 823; Berger v. Sperry, 95 U. S. 401, 24 L. ed. 390; Robertson v. Cease, 97 U. S. 646, 24 L. ed. 1057; Gordon v. Third Nat. Bank, 144 U. S. 97, 36 L. ed. 360.

41 Kentucky S. Mining Co. v. Day, 2 Sawyer C. C. 468.

42 Ely v. Broughton, 2 Sim. & S. 188.

43 Parker v. Ormsby, 141 U. S. 81, 35 L. ed. 654; U. S. Nat. Bank v. McNair, 56 Fed. 323; Kolze V. Hoadley, 200 U. S. 76, 83, 50 L. ed. 377; J. J. McCaskill Co. v. Dickson, C. C. A., 159 Fed 704. See supra, $ 63.

44 Grand Trunk Western Ry. Co. v. Reddick, C. C. A., 160 Fed. 898. 45 Supra, §§ 24-40.

46 U. S. v. Pratt C. C. Co., 18 Fed. 708; Murphy v. East Portland, 42 Fed. 308; Olson v. Nor. R. Co., 43 Fed. 112; Lehigh Z. & I. Co. vN. J. Z. & I. Co., 43 Fed. 545, 546 = Strasburger v. Beecher, 44 Fed209; Back v. Sierra N. C. M. Co., 46 Fed. 673; Harvey v. Raleigh & G. R. Co., 89 Fed. 115; Yellow AM. & M. Co. v. Winchell, 95 Fed213; Evenson v. Spaulding, 150 Fed. 517; Southern Land & Timber Co. v. Johnson, 156 Fed. 246; Nolen v. Riechman, 225 Fed. 812: supra, § 6.

47 Strasburger v. Beecher, 44 Fed. 209.

48

jurisdiction, irrespective of the value of the matter in dispute." The allegation is not insufficient because it uses the word "amount," instead of "matter" in dispute.10 Upon a bill for an injunction, where the amount involved cannot be deduced from the facts alleged, a simple allegation that the right sought to be protected is of the value of more than three thousand dollars, exclusive of interest and costs,50 or that the value of the matter in controversy exceeds such amount,51 will usually be sufficient. An omission from the statement of such an averment is cured by allegations in other parts of the bill which show that the value of the matter in dispute is sufficient.52 When the test of the value of the matter in dispute was stock in a corporation, it was presumed that the same was worth par, in the absence of allegations to the contrary.58

48 Supra, § 5.

49 Blackburn v. Portland GoldMin. Co., 175 U. S. 571, 44 L. ed. 276.

50 Chicago, M. & St. P. Ry. Co. v. Incorporated Town of Lost Nation, 237 Fed. 709.

51 Texas & P. Ry. Co. v. Kuteman, C. C. A., 54 Fed. 547. See Hyde v. Victoria Land Co., 125 Fed. 970; Louisville & N. R. Co. v. Smith, C. C. A., 128 Fed. 1, 5; Southern Cash Register Co. v. National Cash Register Co., 143 Fed. 659; Spaulding v. Evenson, 149 Fed. 913. See, also, supra, §13.

In the following case the allegations were held to be insufficient:

The averments of the bill in the instant case fail to show that when the Judicial Code went into effect on the 1st day of January, 1912, there had already accrued to the plaintiff a right of action against the defendant under the previously existing law, which made it a prerequisite of the existence of the right of action that the matter in dispute exceed, exclusive of the interest and costs, the

sum or value of $2,000. Act, March 3, 1875, c. 137, 18 Stat. 470, 4 Fed. St. An. 265. Averments to the effect that the matter in dispute, at the time the bill was filed on the 5th day of June, 1912, exceeded, exclusive of interest and costs, the sum or value of $2,000, by no means show that, while the former law was in force, a cause of action involving what was the jurisdictional amount under it had accrued to the plaintiff. For anything that is shown to the contrary, what the defendant did or omitted to do while the former law was in force may not have given rise to a cause of action in favor of the plaintiff which involved anything like the amount which was required to authorize the bringing of a suit in a court of the United States." Texas Gum Co. v. Autosales Gum & Chocolate Co., 219 Fed. 175, 167, per Walker, J.

52 Lee Line Steamers v. Robinson, C. C. A., 232 Fed. 417.

53 Bernier v. Griscom-Spencer Co., 161 Fed. 438.

Although it is the proper practice that this part of the bill should contain the statement that the complainant sues on behalf of others as well as himself, if he intends so to do, it has been suggested that this might not be necessary when his case is founded upon a statute "which itself gives that force and direction to the bill." "54 It has been held: that such an omission does not make the bill demurrable.55 There is a dictum to the effect that a bill stating that the plaintiffs are acting on behalf of themselves and such other creditors of and claimants against the defendants, or any of them, as may desire relief similar to that prayed for herein and may intervene and become parties thereto," should be dismissed.56

§ 136. The narrative part of a bill. The most important portion of a bill in equity is the narrative or stating part, otherwise called the stating part. This contains the plaintiff's cause of action.

The Equity Rules of 1912 provide: that it shall consist of "a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence."1

"It should set forth the plaintiff's case in a clear and distinct narrative, with the facts relied upon as the basis of the suit. For convenience, each paragraph should be numbered, so that the successive allegations may be readily referred to.2 The objection of old common-law pleading was to bring the matter in controversy to certain distinct issues. In equity pleading no such attempt was made. The statement of the plaintiff's case in the bill differs little in language or form from any other statement of facts which might be drawn up for the information of third parties, say an application to a government board. The defend

ant's answer usually admits, or denies, or qualifies seriatim each statement in the bill; and occasionally, before proceeding to notice the statement in detail, the defendant gives a general history of the case from his own point of view. The issues, both of fact and of law, are thus often involved in large masses of statement, and have to be selected, so to speak, by the judge who

54 Irons v. Manufacturers' Nat. Bank, 17 Fed. 308; McClelland v. Rose, C. C. C., 247 Fed. 721.

55 Murray v. Sioux Alaska Mining Co., C. C. A., 239 Fed. 818.

56 State of Maine Lumber Co. v.

Kingfield Co., 218 Fed. 902, supra, § 114.

§ 136. 1 Eq. Rule 25.

2 An omission to do this will not

be a defect in pleading.

tries the cause, with the assistance of the arguments of counsel. It would be difficult to imagine a less technical document than a bill in equity."3

"A bill in equity is not to be read and construed as an indictment would have been read and construed a hundred years ago, but it is to be taken to mean what it fairly conveys to a dispassionate reader by a fairly exact use of English speech."'4

The bill must contain every fact essential to the plaintiff's cause of action, for no evidence will be admitted or considered to prove any fact not alleged in it. It must plead every fact essential to the rights of the plaintiff, and necessarily within his knowledge, positively, not upon information and belief," and with certainty. Otherwise, it is defective. An allegation of an essential fact which is made by recital, but in such form that the existence of the fact appears by necessary implication is sufficient. An allegation may be made by reference to a former allegation. This is the better practice in pleading a second cause of action.8

8b

9

It is an elementary rule of pleading in equity and at common

3 Lectures before the Law School of Boston University on Equity Pleading by Judge Dwight Foster, MS. See Hayne, Eq. 70.

4 Swift & Co. v. U. S., 196 U. S. 375, 395, 25 Sup. Ct. 276, 49 L. ed. 518; per Holmes, J.: "After all the specific charges there is a general allegation that the defendants are conspiring with one another, the railroads and others, to monopolize the supply and distribution of fresh meats throughout the United States, etc., as has been stated above, and it seems to us that this general allegation of intent colors and applies to all the specific charges of the bill." See Prindle v. Brown, C. C. A., 155 Fed. 531, 533; Ware-Kramer Tobacco Co. v. Am. Tobacco Co., 180 Fed. 160.

5 Gordon v. Gordon, 3 Swanst. 400, 472; Miller v. Cotten, 5 Ga. 341, 346; Wilson v. Stolley, 4 McLean, 275; Crocket V. Lee, 7

Wheat. 522, 5 L. ed. 513; Jackson v. Ashton, 8 Pet. 148, 8 L. ed. 898; Henry v. Suttle, 42 Fed. 91; Phillipps v. Phillipps, 4 Q. B. D. 127,

133.

6 Lord Uxbridge v. Staveland, 1 Ves. Sen. 56; Egremont v. Cowell, 5 Beav. 620; Gaines & Co. V. Stroufe, 117 Fed. 965; Mitford's Pl. 40; Story's Eq. Pl., §§ 255, 256.

7 Harrison v. Dixon, 9 Pet. 483, 503, 9 L. ed. 201, 208; Wormald v. De Lisle, 3 Beav. 18; Brooks & Hardy v. O'Hara Brothers, 8 Fed. 529; Daniell's Ch. Pr. (2d Am. ed.) 421-425; infra, § 137.

8 Investor Pub. Co. Dobinson, 72 Fed. 603; Grasselli Chemical Co. v. Etna Explosives Co., 247 Fed. 603. 8a Maxwell Steel Vault Co. V. National Casket Co., 205 Fed. 515, 524.

8b Ibid.
9 Ibid.

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