were out of the way. 12 It was held, under the former rules, that an equitable owner of stock, whose title was contested, could not in the same suit obtain the legal title and also protection of the corporate assets.13 But the soundness of these decisions may be doubted, and, under the new rules, the doctrine, that equity having once obtained jurisdiction will afford full relief, may be enforced.

It has been held that a bill is not multifarious which joins an insufficient with a good case for equitable relief, when there is no misjoinder of parties, and that the proper course of the defendant is to demur to so much of the bill as is insufficient; 14 but that a bill is multifarious which joins two inconsistent complaints by different plaintiffs. Under the former practice, where a cause of action arising under the laws of the United States was joined with one of which a Federal court had no original jurisdiction, and there was no diversity of citizenship, a demurrer for multifariousness was sustained.15 The fact that the complainants prayed for relief to which they were not entitled, or alleged facts not material to any relief was held not to make the bill multifarious.16 Since the new equity rules, it has been held: that when the complainant prayed relief which the court, because of a lack of diversity of citizen

12 Inman V. N. Y. Interurban Water Co., 131 Fed. 997, 999; quoted with approval, Witherbee v. Bowles, 142 App. Div. (N. Y.) 407, 417, reversed, 201 N. Y. 427.

13 Inman v. N. Y. Interurban Water Co., 131 Fed. 997, 999; Witherbee v. Bowles, 142 App. Div. (N. Y.) 407, 417, reversing 201 N. Y. 427; U. S. Steel Corporation v. Hodge, 64 N. J. Eq. 807, 809, 60 L. R.A. 742. Contra, Weber v. Wallerstein, No. 1, 111 App. Div. (N. Y.) 693. See infra, § 145.

14 McCabe v. Bellows, 1 Allen (Mass.) 269; Snavely v. Harkrader, 29 Gratt. (Va.) 112; Everglades Drainage League v. Broward Drainage Dist. 253 Fed. 246. Story's Eq. Pl., § 283. Contra, Hastings V. Douglas, 249 Fed. 378, 384; Price

v. Union Land Co., C. C. A., 187 Fed. 886. See Brown v. Guarantee Trust Co., 128 U. S. 403, 32 L. ed. 468.

15 Keasby & Mattison Co. V. Philip Cary Mfg. Co., 113 Fed. 432; C. L. King & Co. v. Inlander, 133 Fed. 416. Contra, Onondaga Indian Wigwam Co. v. Ka-Noo-No Indian Mfg. Co., 182 Fed. 832. See, also, Jaros Hygienic Underwear Co. v. Fleece Hygienic Underwear Co., 60 Fed. 622; Ball & Socket Fastener Co. v. Cohn, 90 Fed. 664; Adam v. Folger, C. C. A., 120 Fed. 260; G. Heileman Brewing Co. v. Independent Brewing Co., C. C. A., 191 Fed. 489. See supra, § 24.

16 Everglades Drainage League v. Broward Drainage Dist., 253 Fed. 246.

ship as to the controversy thereover, had no jurisdiction to grant, the bill should be dismissed as multifarious unless they filed a disclaimer of all right thereto.17 Where the requisite diversity of citizenship was pleaded, such joinder might be made when the transactions were connected; 18 but not, in a patent case, where the infringement was committed within the district, but neither party was a citizen or resident thereof.19

Under the former practice, it was not multifarious to seek, in the same bill, an injunction against the infringement of several copyrights by the same publication 20 or theatrical performance,21 or in different States where the general method of the infringement was the same and the acts were committed pursuant to a common purpose by the defendant.22 Where diverse citizenship exists and the jurisdictional amount is involved, the bill may join prayers to restrain the infringement of a trade mark 23 or of a patent 24 and to restrain unfair competition. A bill may seek to restrain the infringement by the same defendant of separate patents owned by the plaintiff.25 It has been held, in England, that plaintiff may not sue the defendant for the infringement of twenty-three patents, but that he will be limited to selecting no more than three of them for joinder of acts of infringement thereof in the same suit.26 The former rules concerning the joinder of complaints against the infringement of different patents are considered in a subsequent section.27

§ 143. Objections for multifariousness or misjoinder. An objection to a bill for multifariousness or a misjoinder of parties or of causes of action, when it appears upon the face of the bill, should be taken by a motion to dismiss upon that specific

17 Hastings v. Douglas, 249 Fed. 378, 384.

18 Havens v. Burns, 188 Fed. 441. 19 Woerheide v. H. W. JohnsManville Co., 199 Fed. 535.

20 Amberg F. & I. Co. v. Shea, C. C. A., 82 Fed. 314; Harper v. Holman, 84 Fed. 222.

21 Empire City Amusement Co. v. Wilton, 134 Fed. 132.

22 Bracken v. Rosenthal, 151 Fed. 136.

28 Samson Cordage Works v. PuriFed. Prac. Vol. I-51

tan Cordage Mills, C. C. A., 211 Fed. 603.

24 Miller Rubber Co. v. Behrend, C. C. A., 242 Fed. 515.

25 Elliott Co. v. Lagonda Mfg. Co., 205 Fed. 152; Eclipse Mach. Co. v. Harley Davidson Motor Co., 244 Fed. 463; Crystal Percolator Co. v. Landers, 258 Fed. 28.

26 Saccharin Corporation v. Wild (1903, C. A.), 1 Ch. 410. See Saccharin Corporation v. White (C. A.), 88 L. T. 850.

27 Infra, § 146.

ground. The rule formerly was that the objection should be raised by a special demurrer.2 If not apparent upon the face of the bill, it is doubtful whether it can be raised by plea or answer. If it is shown by the bill, it can never be taken for the first time at the hearing or upon appeal; 5 but the court may, of its own motion, dismiss a bill for multifariousness at any time; and perhaps the objection that the rights of the complaints are inconsistent can be raised at the hearing. In one case the court, at the hearing, required the petitioner to elect which claim it should enforce, and then dismissed the rest of the petition.8

The objection cannot be taken by a defendant who is not injured by it. The misjoinder of a defendant against whom the

bill states no ground for relief is not a cause for a demurrer by the other defendants.10 Multifariousness as to subjects or parties does not render a. decree void, so that it can be treated as a nullity in a collateral action,11 although the case shown by the principal plaintiff is not sufficient.12 When a bill was held to be multifarious for uniting an insufficient cause of action with one that was good, it was held that the plaintiff should be given the right to replead,13 or to file a disclaimer of the insufficient cause of action; 14 and upon his failure to do so, the dismissal should be without prejudice.15 It is within the constitutional power of Congress to pass a law allowing, in a single specified suit against a corporation chartered by it, matters and defendants to be joined in a manner that would otherwise constitute multifariousness.16

The question in each instance where it arises calls for the exercise of the discretion of the court, regard being had to considerations of convenience and the substantial rights of the parties.17 Multifariousness depends so much upon the discretion of the courts of first instance that a decision over-ruling an objection upon that ground would not be reviewed upon appeal,18 except under very extraordinary circumstances. When an objection for multifariousness is sustained the complainant will always be allowed, if he asks leave to do so, to amend upon payment of costs.19 If the bill is dismissed, the dismissal should be without prejudice.20 In general, it may be remarked that

10 Warthen v. Brantley, 5 Ga. 571; Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106; Miller v. Jamison, 9 C. E. Green (N. J.), 41 Story's Eq. Pl., § 544.

11 Hefner v. Northwestern Life Ins. Co., 123 U. S. 747, 31 L. ed. 309.

12 Walker v. Powers, 104 U. S. 245, 249, 26 L. ed. 729, 731; Bracken v. Rosenthal, 151 Fed. 136.

13 Price v. Union Land Co., C. C. A., 187 Fed. 886.

14 Hastings v. Douglas, 249 Fed. 378, 384.

15 Price v. Union Land Co., C. C. A., 187 Fed. 886.

*

16 U. S. v. Union Pacific R. Co., 98 U. S. 569, 25 L. ed. 143.

17 Weir v. Bay State Gas Co., 91 Fed. 940, per Dallas, J.

18 See Gaines v. Chew, 2 How. 619, 11 L. ed. 402; Oliver v. Piatt, 3 How. 333, 11 L. ed. 622; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Graves v. Ashburn, 215 U. S. 331, 54 L. ed. 217; Sheldon v. Keokuk N. L. Packet Co., 8 Fed. 769; Hosmer v. Wyoming Ry. & Iron Co., 126 Fed. 884.

19 Walker v. Powers, 104 U. S. 245, 249, 26 L. ed. 729, 731; Price v. Coleman, 21 Fed. 357.

20 Field v. Camp, C. C. A., 201

multifariousness is an objection much more often taken than sustained.21

§ 144. General rules of equity pleading. Otherwise, the rules regulating the frame of a bill and, with the exceptions subsequently given, of other pleadings in equity are substantially the same as those of pleading at common law; but more liberality is used in their construction, and the use of technical expressions is never necessary. The Equity Rules of 1912 provide: "Unless otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished." 3 When a second cause of action is founded in part upon some of the same facts set forth in the pleading of the first cause of action, it is the better practice to include them by reference.

An allegation that the plaintiff is seized in fee simple is equivalent to an allegation that he is in possession. If the

Fed. 682; Price v. Union Land Co.,
C. C. A., 187 Fed. 886.

21 Quoted with approval, United Cigarette Mach. Co. v. Wright, 132 Fed. 195.

$144. 1 Daniell's Ch. Pr. (2d Am. ed.), 413. Supra, § 137.

2 Daniell's Ch. Pr. (2d Am. ed.), 414.

3 Eq. Rule 18.

4 Maxwell Steel Vault Co. v. Nat. Casket Co., 205 Fed. 515.

5 Gage v. Kaufman, 133 U. S. 471, 33 L. ed. 725. A plea which simply alleged that the defendant was "the sole owner in fee simple" of the property in question was held to be bad as a conclusion of law. MeCloskey v. Barr, 38 Fed. 165. It was said that, in a suit to remove a cloud from the title of land, generally, it will be found sufficient for the plaintiff to allege his possession, and interest or estate in the land, as that he is the owner thereof in fee for life or for years, and that he claims the same by a regular chain of conveyances from some recognized and undisputed

source of title, as, the United States, or its donee under the donation act of September 27, 1850, without setting out such conveyances or stating them in detail. But when there is reason to believe, as in this case and many others, that the rightfulness of the defendant's claim depends on the validity or legal effect of some link or links in the conveyances under which the plaintiff claims title, it is very convenient, if not necessary, that the statement of the plaintiff's case should contain the facts fully and in detail at that point in the chain of his title where it conflicts with the claim of the defendant. By so doing the necessity of future amendments will be avoided, and the progress and dispatch of the case promoted. A demurrer to a bill for a lack of certainty in this respect was sustained. Goldsmith v. Gilliland, 22 Fed. 865. But see Thomas v. Nantahala M. & T. Co., 58 Fed. 485. On the foreclosure of a mortgage for default in payment of interest coupons, an allegation