and better particulars of the matter stated.37 By the former practice, when not raised by demurrer, they were ordinarily held to have been waived.38 § 138. Inconsistency and bills with a double aspect. The Equity Rules of 1912 provide: that the relief prayed "may be stated and sought in alternative forms."1 "2 It has not yet been decided whether this changes the former practice, which was as follows: A bill must not state two inconsistent states of fact and ask relief in the alternative. But it may state the facts and ask relief in the alternative according to the conclusion of law that the court may draw from them, so that if one kind of relief sought be denied, another may be granted; and it may state facts of a different nature not inconsistent with each other, and equally supporting the prayer for relief. In both of these cases a bill is said to have "a double aspect. Thus, a bill may state facts constituting an attempt to form a new corporation by the consolidation of two already existing and pray that, if the new corporation have a legal existence, the plaintiff may be declared entitled to a certain number of shares therein, otherwise to a corresponding interest in the stock of one of the old companies. A bill to enjoin the infringement of a copyright may set forth an agreement between the author and the plaintiff, and then allege that if such agreement does not constitute an assignment of the copyright, it is an exclusive license. The complainant may seek to quiet the title to lands, 37 Eq. Rule 20; infra, §§ 240-242. 38 Chicago, M. & St. P. R. Co. v. Pullman P. C. Co., 50 Fed. 24; Green v. Terwilliger, 56 Fed. 384; Thomas v. Nantahala, M. & T. Co., C. C. A., 58 Fed. 485; Rorback v. Dorsheimer, 25 N. J. Eq. 516, 518; Mason v. Daly, 117 Mass. 403. § 138. 1 Eq. Rule 25. 2 Shields v. Barow, 17 How. 130, 144, 15 L. ed. 158, 162; Halsey v. Goddard, 86 Fed. 25; Shackleton v. Baggaley, C. C. A., 170 Fed. 57, Story's Eq. Pl., § 426, note, $254. 3 Kilgour v. New Orleans GasLight Co., 2 Woods, 144, 148. The averment that if said intention is 66 true, which is denied, then the 4 Black v. Henry G. Allen Co., 9 L.R.A. 433, 42 Fed. 618, 623. See Chaffin v. Hull, 39 Fed. 877. claiming either as devisee or as heir-at-law. A bill may contain prayer that an agreement be either set aside as obtained by fraud, or else specifically enforced or an accounting thereunder directed," or else that it be reformed, or if that cannot be allowed that it be cancelled, or else that a lien upon the same, in favor of the plaintiff, be foreclosed, or that the defendant either restore property obtained by fraud or else pay the value of the same. 10 But, at least before the act of March 3, 1915,10 not for specific performance or in the alternative, for damages which might be recovered at law.11 A bill may allege that the defendant had actual knowledge or constructive notice of an essential fact.12 5 Gaines v. Chew, 2 Haw. 619, 643, 11 L. ed. 402, 411; Tully v. Triangle Film Corp., 229 Fed. 297. 6 Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141. But see Shields v. Barrow, 17 How. 130, 143, 15 L. ed. 158, 161; St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 33 Fed. 440, 448. But see Cella v. Brown, C. C. A., 144 Fed. 742. A bill was sustained when filed by one partner against another praying for specific performance of a contract for the sale of land, or else for an account of the partnership debts, and a charge of their amount upon the land as belonging to the assets of the firm. Hoxie v. Carr, 1 Sumn. 173. It was held: that a bill was not demurrable for multifariousness, or as based on tagonistic rights, when it alleged that a mortgage debt was paid before the mortgage was foreclosed under a power of sale, and asked that the mortgage and deed be cancelled, and, at the same time, asked that the sale be set aside because the mortgage became the purchaser at his own sale. Dickerson v. Winslow, 97 Ala. 491; s. c., 11 S. R. 918. But see Cut an ler v. Iowa Water Co., 96 Fed. 777. It was held that a bill was not demurrable for multifariousness, nor based upon antagonistic rights, when it prayed, for specific performance of an agreement to deliver coal in return for an advance of money, and in the alternative for the foreclosure of a mortgage, by which the return of the money was secured (Peale v. Marian Coal Co., 172 Fed. 639). 7 Jackson v. Jackson, C. C. A., 175 Fed. 710. 8 Electric Goods Mfg. Co. v. Koltonski, 171 Fed. 550. 9 Jones v. Missouri-Edison El. Co., C. C. A., 144 Fed. 765. 10 Hubbard v. Urton, 67 Fed. 419; U. S. v. Debell, C. C. A., 227 Fed. 760. But see Alger v. Anderson, 92 Fed. 696. 10a 38 St. at L. 956, quoted supra, $ 80. 11 United States v. Debell, C. C. A., 227 Fed. 760; Beveridge v. Crawford Cotton Mills, 257 Fed. 832. 12 Brady v. Reliance Motion Picture Corp., 232 Fed. 259; Beveridge v. Crawford Cotton Mills, 257 Fed. 832. When the complainant alleged that a decree which he wished to set aside was obtained either by mistake of all the parties, or by deception practiced upon himself, or by collusion of the defendant with third parties, the bill was held to be demurrable for indefiniteness.13 "To allege that a sale is simulated and if not simulated is fraudulent, meaning thereby it is a sham sale, and if not a sham then a real sale, but fraudulent, may be consistent, but it is not certain; and certainty is a requisite in equity pleading as well as consistency. It seems to me that, if there is doubt as to the nature of the transaction, the creditor, who has 'to strike in the dark,' should charge a fraudulent simulation, and on discovery amend if necessary. 13 Brooks v. O'Hara, 8 Fed. 529; s. c., 2 McCrary, 644. But see Williams v. U. S., 138 U. S. 514, 517, 34 L. ed. 1026, 1028. 14 Pardee, J., in Socola v. Grant, 15 Fed. 487, 489. A bill by a judgment creditor of a railroad company, against that and another railroad company, to redeem property in the possession of the latter company as mortgagee, on the ground that such possession was fraudulently acquired, and also to subject to the payment of the judgment certain bonds about to be issued by the latter, to the officers of the former company, in order to confirm the title to such property, was held to be bad as multifarious. Merriman v. Chicago & E. I. R. Co., C. C. A., 64 Fed. 535, 550, 551, per Baker D. J.: "If the appellant's case was solely that the Eastern Illinois Company has no title to the property of the Danville Company, they might pray for various forms of alternative relief consistent with that case; but they cannot in the same bill make a case that it has no title, and also a case that it has a title, and then ask for inconsistent relief accord 14 ing to the different cases thus made. Such course of procedure we do not understand is warranted by the doctrine of alternative relief. Such are alternative cases, and not cases of alternative relief. They are inconsistent, for a decree of one of those forms of relief would proceed upon a theory fatal to the other form of relief." Where a bank filed a bill to foreclose a mortgage and to restrain a sale of the mortgaged property to satisfy a judgment obtained against it by another, and the holder of the judgment thereupon filed an answer and cross-bill alleging that the mortgage had been withheld from record in fraud of creditors, and praying that the property be sold to satisfy the judgment, and the complainants filed an amendment alleging that, previous to the recovery of the said judgment, they themselves had recovered a judgment upon an indebtedness separate and distinct from the mortgage indebtedness, and that if their mortgage was invalid they had a prior lien under this judgment; it was held that the bill was demurrable for multifariousness. Mobile Savings It was held in England that a bill may not pray relief primarily against one of two defendants, and, in case the court should hold him free from liability, then against the other.15 It was held that where a bill prayed specific performance of a contract in relation to certain patents, and also contained expressions looking for relief by an injunction against an infringement of one of them, it could not be maintained for the latter relief as a bill with a double aspect, since the necessary parties must be different in each case.1 16 And that a bill could not seek a preliminary injunction to restrain infringement through sales, made by defendant, in violation of the terms of its license, where the bill also prayed for additional relief, which could only be granted if the license was still in force.17 It was further held: that a bill was bad when it contained two alternative claims each belonging to several persons, of whom one had no interest in one claim, and others had no interest in the other; 18 that a bill should not pray in the alternative legal and equitable relief,19 and that a bill in equity with a double aspect must state each position separately and distinctly.20 Under the modern practice in England, it has been held that, in an action for the recovery of land, plaintiff may claim possession as the residuary Bank v. Burke, 94 Ala. 125, 10 S. 15 Clark v. Lord Rivers, L. R. 5 Eq. 91, 97. But see Kilgour v. New Orleans G. L. Co., 2 Woods, 144, 148; Brown v. Pegram, 149 Fed. 515. "The plaintiff brought a bill in equity joining A and B as defendants. The bill alleged that the plaintiff owned a lot fifty feet wide, that A owned a lot on one side and B owned a lot on the other side of the plaintiff's lot, that all three claimed under a common grantor, that A and B had erected buildings on their lots, that these buildings were less than fifty feet apart, but that the plaintiff's surveyors could not agree as to which defendant was encroaching. The bill prayed for a determination of the encroachment and a decree for the removal of the encroaching building and damages. Held, that the bill was not demurrable. Caleo v. Goldstein, 118 N. Y. Supp. 859, (Sup. Ct., App. Div.) 16 Am. Box Mach. Co. v. Crosman, 57 Fed. 1021. See Magic R. Co. v. Elm City Co., 13 Blatch. 151; Halsey v. Goddard, 86 Fed. 25. 17 Lovell-McConnell Mfg. Co. v. Waite Auto Supply Co., 198 Fed. 130. 18 Stebbins v. St. Anne, 116 U. S. 386, 29 L. ed. 667. 19 Cherokee Nation V. Southern Kansas Ry. Co., 135 U. S. 641, 651, 34 L. ed. 295, 300; Alger v. Anderson, 92 Fed. 696; Beveridge v. Crauford Cotton Mills, 257 Fed. 832. 20 Electric Goods Mfg. Co. v. Koltonski, 171 Fed. 550; Munro v. Smith, 243 Fed. 654. devisee; and, in the alternative, should the will be held invalid, as heir at law.21 "When the pleadings are so framed as to rest the claim for relief solely on the ground of fraud, it is not open to the plaintiff, if he fails in establishing the fraud, to pick out from the allegations of the bill facts which might, if not put forward as proofs of fraud, have yet warranted the plaintiff in asking for relief. A defendant in answering a case not founded on fraud is not bound to do more than answer the case in the mode in which it is put forward. If, indeed, relief is asked alternatively, either on the ground of fraud, or, failing on that ground, on some other equity, a plaintiff failing on the first may succeed on the latter alternative. But when the attention of the defendant has been distinctly called to it, and he has been called upon to answer the case according to both alternatives, it is the duty of the judge to determine whether the two are so interwoven with each other that, on the failure of proof of fraud, it is impossible to treat the facts as separate allegations, justifying a separate mode of dealing with them." 22 Thus, it has been held, that where a bill to rescind a contract was based solely upon alleged fraudulent representations by defendant, it could not be sustained upon proof of a mutual mistake; 23 and upon a bill to set aside a decree for fraud and error, apparent upon the record, relief upon proof of a mistake of fact was denied.24 When the bill charged fraud by the defendants and the evidence showed that they had obtained their title through the fraud of 21 Annual Practice, 1913, p. 317. But see Field v. Camp, 193 Fed. 160. 22 Dwight Foster's Lectures on Equity Pleadings, MS.; Eyre v. Potter, 15 How. 42, 56, 14 L. ed. 592, 598; Britton v. Brewster, 2 Fed. 160; French v. Shoemaker, 14 Wall. 314, 335, 20 L. ed. 852, 857; Fisher v. Boody, 1 Curt, 206; Hoyt v. Hoyt, 27 N. J. Eq. 399; Wilde v. Gibson, 1 H. of L. Cases, 605; Hickson v. Lombard, L. R. 1 H. of L. 326; Thomson v. Eastwood, L. R. 2 App. Cases, 215; Price v. Berrington, 2 Mach. & G. 486, 498; Dashiell v. Grosvenor, C. C. A., 27 L.R.A. 67, 66 Fed. 334; Grosvenor v. Dashiell, 62 Fed. 584; Brown v. Davis, C. C. A., 62 Fed. 519; Hendryx v. Perkins, C. C. A., 114 Fed. 801. See Chicago, B. & Q. R. R. Co. v Babcock, 204 U. S. 585, 593, 51 L. ed. 636, 638. 23 Burk v. Johnson, C. C. A., 146 Fed. 209. 24 Hendryx v. Perkins, C. C. A., 114 Fed. 801. |