has paid taxes or other liens to protect his security so state, and the amount thereof. Add an appropriate prayer. FRAUD, HOW PLEADED. An allegation of fraud without a statement of the facts constituting the fraud is not sufficient. The reason is, fraud is a conclusion of law, and it is insufficient to allege that an act was effected by fraud, as that a deed was obtained by fraud, unless the things done constituting such fraud are stated on the face of the pleading. This is a very old rule, and the current of authority sustaining it is almost unbroken. 1 The use of epithets, however bountifully multiplied, will not supply the place of facts. 2 Remedies of party defrauded. As a general rule a party defrauded may, on discovering the fraud, tender back what he has received, and rescind the contract, or he may affirm the contract and sue for damages. If he seeks to rescind, he must act promptly on the discovery of the fraud, as a court of equity will refuse relief where the delay has been so considerable that laches is fairly imputable. So when the defrauded party has so dealt with the subject matter of the contract as to make it impossible to put the other in statu quò, his right to rescind ordinarily will be gone, and his remedy be a suit for damages.* 1 Story's Eq. Pl. § 251a; Gilbert v. Lewis, 1 De G. J. & Sm. 38; Bryan v. Spruill, 4 Jones. Eq. 27; Clark v. Dayton, 6 Neb. 192; Williams v. First Pres. Church, 1 O. St. 478; Kraus v. Thompson, 30 Minn, 64; Humphreys v. Mattoon, 43 Iowa, 556. 2 Clodfelter v. Hullett, 72 Ind. 137144. "But, although a general charge is insufficient, yet it does not follow that the plaintiff in his bill is bound to set forth all the minute facts. On the contrary, the general statement of a precise fact is often sufficient; and the circumstances which go to confirm or establish it need not be (although they often are) minutely charged, for they more properly constitute matters of evidence than matters of allegation. Thus, for ex ample, if a bill is brought to set aside an award, bond or deed, for fraud, imposition, partiality or undue practice, it is not necessary in the bill to charge minutely every particular circumstance; for that is matter of evidence, every part of which need not be charged." Story's Eq. Pl. § 252. * Cooley on Torts, 503; Hercy v. Dinwoody, 2 Ves. 87; Janson v. Tuberville, Id. 11; Masson v. Bovel, I Den. 69; Pearsoll v. Chapin, 44 Penn. St. 9; Herrin v. Libbey, 36 Me. 350; Cook v. Gilman, 34 N. H. 556; Wright v. Peet, 36 Mich. 213; Hammond v. Stanton, 4 R. I. 65. cited. Cooley on Torts, 505, and cases A few exceptions to the rule requiring a return of the property will be found, as where the property received was absolutely worthless.1 Frame of a petition pleading fraud. There are three material points to be presented. First, a statement of the deception practiced by the defendant to induce the plaintiff to enter into the contract, and second, that the plaintiff, relying upon said fraudulent acts of the defendant entered into the contract and was thereby defrauded in a specified sum. Third, if a rescission is sought the further allegation must be made of an election to rescind and a tender back of the things received. The facts in relation to the alleged fraud may be pleaded substantially as follows: that, on the day of, at the request of the defendant, the plaintiff purchased from the defendant a certain [horse] for the sum of $; that the defendant, to induce the plaintiff to purchase said horse, falsely and fraudulently represented and warranted said horse to be sound in every respect, and the plaintiff relied on said representation and warranty in making said purchase. Second. Said horse at the time of said sale and warranty was unsound in this (state in what the unsoundness consisted), as the defendant well knew, and he then falsely and fraudulenty deceived the plaintiff in the sale of said horse in the sum of $-. of 18 Third. [If a rescission is sought], allege that, immediately on discovering the fraud, to wit: On the the plaintiff notified the defendant that he elected to rescind said contract, and he thereupon tendered to said defendant (the things received from him), and demanded a return of (the property given by the plaintiff), but the defendant refused to receive the same or deliver up the property received from the plaintiff. ' Id. 504-5. Where a party has received money on a compromise which he claims is fraudulent, he must return the money to enable him to bring an ac Potter v. Mon tion on the claim. INJUNCTIONS. An injunction will be issued only on a petition setting forth the necessary facts, and which contains a prayer for such specific relief.1 Affidavits alone, without a petition, will not warrant the issuing of an injunction. 2 The facts upon which the right to an injunction depend must be established by a positive affidavit, or other proof, annexed to the petition. If the affidavit in support of the petition state more than the petition, the force of the facts stated in the petition will not thereby be weakened, nor will the effect be to make the affidavit take the place of the petition. 4 A petition does not show a case for an injunction, if it appears only by inference and not by averment that acts are threatened, or contemplated, which will cause an injury to the plaintiff. 5 But one cause of action. A petition in which it is sought to enjoin the maintenance of an elevated railway in front of plaintiff's property, and for damages caused by such maintenance, states but one cause of action, the damages being incident to the relief by an injunction." 1 Lewiston, etc., Co. v. Franklin Co., 54 Me. 402; Union Bank v. Kerr, 2 Md. Ch. 460; Wood v. Beadell, 3 Sim. 273; African M. E. Church v. Conover, 12 C. E. Green, 157; Willet v. Woodhams, I Bradw. 411; 10 Am. & Eng. Ency. of Law, 1004. 2 People v. New York, 3 Abb. Pr. 181; Badger v. Wagstaff, 11 How. Pr. 562. 3 Campbell v. Morrison, 7 Paige, 157; Shonk v. Knight, 12 W. Va. 667; Southern, etc., Co. v. Hixon, 5 Ind. 165; Walker v. Deveneaux, 4 Paige, 229; Glidden v. Morrell, 44 Mich. 202; Gaertner v. Fond du Lac, 34 Wis. 497. • Badger v. Wagstaff, 11 How. Pr. 562; 10 Am. & Eng. Ency. of Law, 1004. * Maloney v. Finnegan, 35 N. W. R. 723. In the case cited the action was brought to remove a cloud from the plaintiff's title to real estate, and a major ty of the court held that because the alleged cloud -a certificate- was void on its face, therefore the court would grant no relief. The authorities on this point are in conflict, but in reason it would seem but justice, where there is a blemish on a party's title which affects the value thereof, that he should have relief although the costs of the action may, as a condition, be taxed to him. 6 Shepard v. Manhattan Ry. Co., 117 N. Y. 442; 23 N. E. R. 30. It is said, "Although property owners have a remedy at law for the intrusion upon their rights, yet as the trespass is continuous in its nature, they can invoke the restraining power of a court of equity in their behalf, in order to prevent a multiplicity of suits, and they can recover the damages they have sustained as incidental to the granting of the equitable relief. Williams v. Railroad Co., Facts to be sworn to positively. Affidavits. There should be a special affidavit or other proof of the truth of all the facts upon which the application is based. 1 The true rule seems to be that stated by Chancellor Walworth, 2 that if the plaintiff has no personal knowledge of the facts upon which his right to an injunction rests, he should annex to his petition the affidavit of the party who knows and can swear to the facts. In the same case he suggests that where the plaintiff personally cannot swear to the facts and is unable to procure the affidavit of the person who knows them, upon verifying the petition upon information and belief, the defendant may be required to show cause why a temporary injunction should not be issued, and a restraining order granted until the hearing. In states where positive testimony must be introduced in support of the petition, it is evident that such an affidavit would not be sufficient, as the plaintiff before bringing the action should be able to verify the pleading. Where the only affidavit was the verification of the petition by one of the attorneys, in effect that what he knew of his own knowledge was true, and what he had heard he believed. was true, without stating what facts he knew of his own knowledge, or what he had heard, is insufficient. 8 Waiver. If the defendant demurs to the petition, or other 16 N. Y. 97; Henderson v. R. Co., 78 N. Y. 423. The violation of the property rights of abutting owners being adjudged in such an action, the awarding of damages sustained in the past from defendants follows, they being, on equitable principles, deemed incidental to the main relief sought. Story Eq. Jur. $ 794-795-799. With the object of doing complete justice to all persons interested, if the incidental relief to be 'granted by way of damages for the past injuries affects other parties than the present owners of the fee, is there any reason why those other parties should not be brought into the action? I see none, where the parties so joined derive their right of action from the same source, in the injury to the same prop 3 Landes v. Globe Mfg. Co., 73 Ga. 176; Hone v. Moody, 59 Id. 731; 10 Am. & Eng. Ency. of Law, 1004. An injunction should not be granted on a petition sworn to on information and belief, and unaccompanied by an affidavit of the facts from the person from whom the information and belief were derived, Ruge v. A.O., etc., Co., R. 6 So. R.489. But in Alspaugh v. Adams, 80 Ga. 345, it was held that affidavits produced at the hearing would supply the want of a positive verification of the petition. wise enters a general appearance, he thereby waives defects in the oath. 1 2 A petition sworn to positively may perform the duties of a petition and also an affidavit. If the oath is made by the attorney, he should state the reason why it is not made by the plaintiff. 3 Temporary order. If it appears from the petition that the plaintiff is entitled to the relief demanded, and such relief, or a part thereof, consists in restraining the commission or continuance of some act that would produce great or irreparable injury to the plaintiff, a temporary injunction may be granted. An injunction which is allowed to restrain the commission of some act while the action is pending is called a temporary injunction. If part of the final judgment, it is called a perpetual injunction. 4 A temporary injunction will not be granted unless prayed for in the petition, nor against a stranger to the action. 5 The granting of a temporary order is not a matter of strict right, but the court or judge should grant or refuse the same as may seem to him just and equitable. 1 6 1 Gibson v. Gibson, 46 Wis 462. 2 Woodroff v. Fisher, 17 Barb. 225; Olmsteal v. Koester, 14 Kas. 463; Penfield v. White, 8 How. Pr. 87; Morgan v. Quackenbush, 22 Barb. 76. The pleader must consult the decisions of his own state. 3 Hone v. Moody, 59 Ga. 731. Walker v. Deveneaux, 4 Paige, 229. The chancellor says (p. 248): "A final injunction may be obtained upon the prayer for relief by injunction, or perhaps under the prayer for general relief. But to obtain a preliminary injunction to restrain the defendant's proceedings pending the suit, there should be a formal prayer for such process or some other prayer which is equivalent. Thus, in the case of Wood v. Beadell (3 Simons, Rep. 273), an injunction was asked for, as here, in the general prayer of the bill, but as there was no preliminary injunction asked for in the prayer of process, such injunction was refused. The complainant, however, was permitted to renew his application upon an amended bill. 5 Fellows v. Fellows, 4 Johns. Ch. 25, Chancellor Kent says: "I find," said Lord Eldon," the court has adhered very closely to the principle that you cannot have an injunction except against a party to the suit. Upon a review of all the cases I think the practice of granting an injunction against a creditor, who is not a party, is wrong. The court has no right to grant an injunction against a person whom they have not brought or attempted to bring before the court by subpoena. I have no conception that it is competent to this court to hold a man bound by an injunction, who is not a party in the cause, for the purpose of the cause. I shall, accordingly, dissolve the injunction as against those persons who were not made parties to the suit. A purchaser was restrained in the case of Green v. Lowes (3 Bro. 217) from paying the purchase money, on a bill by the creditors of the vendor, but the purchaser was made a party." 6 Olmstead v. Koster, 14 Kas. 463. |