43

The courts, in the exercise of a sound discretion, seem to consider the circumstances of each case with reference to avoiding on one hand a multiplicity of suits, and on the other hand inconvenience and hardships to the defendants from being obliged to answer matters with which they have, in great part, no connection, and the complication and confusion of evidence. The question must be determined alone by the averments and the relief prayed for in the bill.42 Courts, however, seek to discourage a multiplicity of suits, and will not permit the objection of multifariousness to prevail where there is no liability to injustice. Very great latitude is allowed in pleading in cases involving the question of fraud, and circumstances, however various, may be set forth, and parties, however numerous, may be impleaded in the same bill, so long as one connected scheme of fraud is alleged." The objection of multifariousness will not hold against a bill where one general right is claimed by plaintiff, although defendants may have separate and distinct rights, and distinct grounds of defense. The rule is well established that a creditor's action seeking to set aside several fraudulent conveyances made by the debtor, at various times to various persons, and to subject the property, states but one cause of action, and the grantor and the various transferees may be joined on defendants, although there was no privity between the transferees and they may have no common interest in the parcels so conveyed, and such a bill is not multifarious. The object of the suit in such case is single, based upon one general right, to reach property which has been conveyed in fraud of creditors, although

42. U. S.-Harrison v. Perea, 168 U. S. 311, 18 Sup. Ct. 129, 42 L. Ed. 478; Oliver v. Piatt, 3 How. 333, 11 L. Ed. 622; Gaines v. Chew, 2 How. 619, 11 L. Ed. 402; McLean v. Lafayette Bank, 16 Fed. Cas. No. 8,886, 3 McLean, 415.

Ala. Steiner Land, etc., Co. v. Kind, 118 Ala. 545, 24 So. 35; Hill v. Moone, 104 Ala. 353, 16 So. 67; Collins v. Stix, 95 Ala. 338, 11 So.

380; Hinds v. Hinds, 80 Ala. 225; Lehman v. Meyer, 67 Ala. 396.

Conn.-DeWolf v. A. W. Sprague Mfg. Co., 49 Conn. 282.

43. Jordan v. Liggan, 95 Va. 616, 29 S. E. 330.

44. Jordan v. Liggan, supra. 45. Dimmock v. Bixby, 37 Mass. 368; Lewis v. St. Albans Iron, etc., Works, 50 Vt. 477.

each vendee is charged only with participating in the fraud concerning his own purchase, and it is not necessary to allege a conspiracy between the different grantees to defeat the grantor's creditors.46 A bill to reach property fraudulently conveyed by a debtor in the hands of a subsequent grantee is not multifarious, if it joins as defendants the debtor and all persons through whom his title has been conveyed, as well as the present holders."

46. N. Y.-Reed v. Stryker, 4 Abb. Dec. 26, 12 Abb. Pr. 47; Hammond v. Hudson River Iron, etc., Co., 20 Barb. 378; Newbould v. Warrin, 14 Abb. Pr. 80; Morton v. Weil, 11 Abb. Pr. 421; Jacot v. Boyle, 18 How. Pr. 106; Fellows v. Fellows, 4 Cow. 682, 15 Am. Dec. 412; Boyd v. Hoyt, 5 Paige, 65; Brinkerhoff v. Brown, 6 Johns. Ch. 139.

U. S.-Jones v. Slauson, 33 Fed. 632; Potts v. Hahn, 32 Fed. 660.

Ala.-Gassenheimer v. Kellogg, 121 Ala. 109, 23 So. 29; Burford v. Steele, 80 Ala. 147; Russell v. Garrett, 75 Ala. 348; Allen v. Montgomery R. Co., 11 Ala. 437.

Fla.-Bauknight v. Sloan, 17 Fla.

Perkins v. Baer, 95 Mo. App. 70, 68
S. W. 939.

N. H.-Chase v. Searles, 45 N. H. 511.

N. J.-Miller v. Jamison, 24 N. J. Eq. 41; Randolph v. Daly, 16 N. J. Eq. 313; Way v. Bragaw, 16 N. J. Eq. 213, 84 Am. Dec. 147.

N. C.-Dawson Bank v. Harris, 84 N. C. 206; Vann v. Hargett, 22 N. C. 31.

S. C.--State v. Foot, 27 S. C. 340; Williams v. Neel, 10 Rich. Eq. 338, 73 Am. Dec. 94.

Va.-Commonwealth v. Drake, 81 Va. 305; Almond v. Wilson, 75 Va. 613. Wis.-Hamlin v. Wright, 23 Wis. 491; Blake v. Van Tilborg, 21 Wis. 672. Eng.-Cornish v. Clark, L. R. 14 Eq. 184, 42 L. J. Ch. 14, 26 L. T. Rep. N. S. 494, 20 Wkly. Rep. 897.

47. Craft v. Wilcox, 102 Ala. 378, 14 So. 653. The joinder in a bill to set aside a certain conveyance, as in fraud of creditors, of one claiming under a subsequent mortgage, also alleged to be fraudulent, does not render the bill multifarious, when a unity of fraudulent design permeates the whole transaction. Williams v. Spragins, 102 Ala. 424, 15 So. 247.

18. Amendments.-It is within the discretion of the trial court, and may be a proper exercise of the court's discretion, to permit an amendment of a bill in equity or other pleading by the addition of specific allegations or otherwise, and the granting of leave to amend a bill will not be reversed on appeal unless it is shown that such discretion has been abused. The plaintiff having the right to amend the petition at any time before trial, if defective, any other creditor has that right after plaintiff has quit the suit.49 When amendments are permitted to be made is immaterial, except as to the terms the court may impose as a condition thereto.50 An amendment to a bill setting up an alternative ground of relief is proper, when the matter of amendment might have been stated in the alternative in the original bill.51 An amendment of a bill is properly allowed on the hearing, in furtherance of justice, to avoid the effects of a variance from the proofs, provided it is not inconsistent with the original theory of the case.52 But amendments will not be allowed of additional allegations which bring into the case a new and substantive cause of action different from that set forth in the original bill, and which the complainant then

48. U. S.-Smith v. Babcock, 22 Fed. Cas. No. 13,008, 3 Sumn. 583. Ga.-Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 33 S. E. 945. Ill.-Gordon v. Reynolds, 114 Ill. 118, 28 N. E. 455; McArtee v. Engart, 13 Ill. 242.

Tobacco Ware

Ky.-Cincinnati house Co. v. Matthews, 24 Ky. L. Rep. 2445, 74 S. W. 242, the debtor may by amendment set up in his answer that the land alleged to have been fraudulently conveyed was his homestead.

Neb.-Monroe v. Reid, 46 Neb. 316, 64 N. W. 983.

Va.-Kinney v. Craig, 103 Va. 158, 48 S. E. 864.

49. Slusher v. Simpkinson, 101 Ky. 594, 40 S. W. 570, 43 S. W. 692, 10 Ky. L. Rep. 1184.

50. Gordon v. Reynolds, 114 Ill. 118, 28 N. E. 455.

51. Wimberly v. Montgomery Fertilizer Co., 132 Ala. 107, 31 So. 524.

52. U. S.-Neale v. Neale, 9 Wall. 1, 19 L. Ed. 590; Fisher v. Campbell, 101 Fed. 156, 41 C. C. A. 256; Collinson v. Jackson, 14 Fed. 305, 8 Sawy. 357.

Ala.-Tissier v. Wailes (1905), 39 So. 925.

Ga.-Kruger v. Walker, 111 Ga. 383, 36 S. E. 794.

Mich.-Smith v. Sherman, 52 Mich. 637, 18 N. W. 394, where no demurrer has been entered.

N. J.-Foster v. Knowles, 42 N. J. Eq. 226, 7 Atl. 290.

Va.-Kinney v. Craig, 103 Va. 158, 48 S. E. 864.

54

intended to assert, or which set up new defenses inconsistent with that originally relied upon, particularly after the former issue has been decided.53 Material matters occurring after the filing of the original bill may properly be brought into the bill by way of amendment, but an amendment to the bill to introduce a subsequent judgment obtained by one of the creditors will not be permitted, nor may the complaint be amended so as to allege that, after the service of the summons and complaint upon the debtor, an execution was issued upon the judgment, although it was issued before the summons and complaint was served on the grantee."

55

56

§ 19. Supplemental pleadings.-A supplemental bill, when properly filed, is to be considered as part of the original bill, and if, upon the whole bill, the complainant is entitled to relief, it must be decreed him.57 An objection that a second complaint, made and served as supplemental in pursuance of an order of the court, is not in aid of the original complaint, and therefore not supplemental, cannot be raised on appeal from the judgment. Defendant should appeal from the order.58 Where there is no defect in the original bill, and new matters transpiring after the filing of the original bill, but connected with the grounds of recovery relied on in the original bill, must be relied on by the complainant for complete relief, a supplemental bill should be filed stating the facts which entitle him to the relief and asking the appropriate relief." But if a bill be so wholly defective

Grant. Ch. (U. C.) 416; Rees v.
Wittrock, 6 Grant Ch. (U. C.) 418.

53. Davidson v. Dishman, 22 Ky. L. Rep. 940, 59 S. W. 326; Skowhegan Bank v. Cutler, 49 Me. 315; Farwell v. Meyer, 67 Mo. App. 566; Kinney v. Craig, 103 Va. 158, 48 S. E. 864; Tidball V. Shenandoah Nat.

Bank, 100 Va. 741, 42 S. E. 867.

54. Cleveland v. Chambliss, 64 Ga. 352; Jamison v. Bagot, 106 Mo. 240, 16 S. W. 697; Fidelity L. & T. Co. v. Engleby, 99 Va. 168, 37 S. E. 957;

First Nat. Bank v. Prager, 50 W. Va. 660, 41 S. E. 363.

55. Lore v. Getsinger, 7 N. J. Eq. 191.

56. McCullough v. Colby, 17 N. Y. Super. Ct. 603.

57. Cunningham v. Rogers, 14 Ala. 147; French V. Commercial Nat. Bank, 199 Ill. 213, €5 N. E. 252.

58. Wetmore v. Truslow, 51 N. Y.

338.

59. French v. Commercial Nat. Bank, supra; Edgar v. Clevenger, 3

61

60

that no decree can be made upon it, it will not be aided by a supplemental bill founded on facts that have subsequently taken place. A supplemental bill may be filed when facts have occurred subsequently to the filing of the original bill, which vary the relief to which the plaintiff was entitled under it, and if the original bill were sufficient for one kind of relief, and facts afterwards occur which entitle the plaintiff to other and more extensive relief, he may have such relief by setting out the new matter in a supplemental bill.62 Where it is essential that the creditor should allege the issuing of an execution in order to state a cause of action in equity, if the creditor files his original bill before he has exhausted his remedy at law, he cannot cure the defect by filing a supplemental bill alleged a subsequent judgment and execution returned unsatisfied.63 But this defect is waived if no objection be made to the supplemental bill on this specific ground." Where a bill is sustainable on any ground, even for the purpose of granting temporary relief, the court will retain possession of it, to allow the complainant to file a supplemental bill.65

§ 20. Demurrer.-Where matter in bar of relief is apparent on the face of the bill, the defendant may demur.66 But where the matter of defense is not apparent on the face of the bill, the

N. J. Eq. 258; Fleischner v. First
Nat. Bank, 36 Or. 553, 54 Pac. 884,
60 Pac. 603, 61 Pac. 345; Pike v.
Miles, 23 Wis. 164, 99 Am. Dec. 148.

60. Candler v. Pettit, 1 Paige (N. Y.), 168, 19 Am. Dec. 399; Edgar v. Clevenger, 3 N. J. Eq. 258.

61. Hasbrouck v. Schuster, 4 Barb. (N. Y.) 285.

62. Candler v. Pettit, 1 Paige (N. Y.), 168, 19 Am. Dec. 399.

63. McCullough v. Colby, 17 N. Y. Super. Ct. 603, 18 N. Y. Super Ct. 477; Candler v. Pettit, supra; Butchers, etc., Bank v. Willis, 1 Edw. Ch. (N. Y.) 645; Morrison v. Schuster, 1

Mackey (D. C.) 190; Brown v. State
Bank, 31 Miss. 454.

64. Fleischner v. First Nat. Bank, 36 Or. 553; Meacham Arms Co. v. Swarts, 2 Wash. Terr. 412, 7 Pac. 859. 65. Edgar v. Clevenger, supra.

66. Bromberg v. Heyer, 69 Ala. 22; Levy v. Marx (Miss. 1895), 18 So. 575; Tappan v. Evans, 11 N. H. 311; Reed Fertilizer Co. v. Thomas, 97 Tenn. 478, 37 S. W. 220, allegations which raise the question whether an assignment for the benefit of creditors was fraudulent in law, but do not charge fraud in fact, are properly heard on demurrer; Gullickson v.