apparent on the face of the Bill, the party, improperly joined, may rely on the objection by way of a plea, or insist upon it in his answer. It is not safe, however, in any case, to rely upon the mere non-joinder or misjoinder of parties, as an objection at the hearing; for if the Court can make a decree at the hearing, which will do entire justice to all the parties, and not prejudice their rights, notwithstanding the non-joinder or mis-joinder, it will not then allow the objection to prevail. The true course, therefore, is, to take it by way of demurrer, when it is apparent on the face of the Bill; or, if not apparent, by plea, or by answer.3 When the objection of want of proper parties exists, the Court will ordinarily allow the defect to be supplied by an amendment of the original Bill, or by a supplemental Bill, as the stage of the proceedings, at which the objection is taken, may require.*

§ 238. Where a demurrer, or a plea, is put in for the want of proper parties, if a demurrer, it must appear, if a plea, it must be shown, who are the proper parties, not indeed by name, for that might be impos

1 Cooper, Eq. Pl. 42; Mitf. Eq. Pl. by Jeremy, 160, 161; Post, § 541, 544.

2 Lambert v. Hutchinson, 1 Beavan, R. 277; Post, § 283, 544; Pringle v. Crooks, 3 Younge & Coll. 666. In this last case, a doubt was suggested, whether in any case a mis-joinder of a defendant was a ground of demurrer. Post, § 544 and note. The very point as to a non-joinder of a defendant arose in the case of Whiting v. Bank of United States, 13 Peters, R. 6-14; and it was there held, that unless the non-joinder operated a prejudice to the rights of the other defendants, it could not be taken advantage of at the hearing, or upon a rehearing on a Bill of review. See also Russell v. Clarke's Ex'rs, 7 Cranch, 69; Elmendorf v. Taylor, 10 Wheaton, R. 152; Carneal v. Banks, 10 Wheaton, R. 181; Mallon v. Hinde, 12 Wheaton, R. 193; Mechanics' Bank of Alexandria v. Setons, 1 Peters, R. 306; Vattier v. Hinde, 7 Peters, R. 252; Boone's Heirs v. Chiles, 8 Peters, R. 532; Ante, § 232, 236 and note; Post, § 541, 544. 3 Ibid.

sible; but in such a manner as to point out to the plaintiff the objection to his Bill, and enable him to amend by adding the proper parties. Indeed, cases may occur of such a nature, as even to require the names to be stated, if the more general description is not sufficient to enable the plaintiff to ascertain with reasonable certainty the names of the absent parties.2 For example, if it should appear in the case of a Bill to enforce a rent charge for a charity, that other lands also were charged, it might be required in the plea to set forth, who are the present owners of these lands, and their precise locality, especially if the transaction were of great antiquity, and the original description were loose and indeterminate.3

1 Mitf. Eq. Pl. by Jeremy, 180, 181; Attorney-General v. Jackson, 11 Ves. 369, 370; Post, § 543. See Attorney-General v. Poole, 4 Mylne & Craig, 17; 1 Daniell, Ch. Pract. 384-388.

2 Attorney-General v. Jackson, 11 Ves. 367-371.

3 Ibid.; Attorney-General v. Wyburgh, 1 P. Will. 509; AttorneyGeneral v. Shelly, 1 Salk. R. 163.

239. HAVING gone through with these preliminary considerations as to parties, we shall now proceed to a more particular consideration of some of the general rules and principles applicable to the structure of Original Bills for relief. We have already had occasion to state the nature, and general character, and appropriate subdivisions, and parts of such Bills, which should be borne in mind in our subsequent inquiries.

§ 240. In the first place, then, as to the certainty, which is required in the statements of Bills. With reference to certainty in pleadings at the Common Law, there are said to be three kinds, applicable to different parts of the pleadings, founded, as it should seem, upon one general maxim; Certa debet esse intentio, et narratio, et certum fundamentum, et certa res, quæ deducitur in judicium. The first kind is certainty to a common intent; and that is sufficient in a bar, which is to defend the party, and to excuse him. The sec

ond is certainty to a certain intent in general, as in counts, replications, and other pleadings of the plaintiff, that is, to convict the defendant, as in indictments, &c. The third is, certainty to a certain intent in every particular, as in estoppels, which are odious in the law. It has been said, that, in pleading, there must be the same strictness in Equity as in law; as,

1 Co. Litt. 303, a.

2 Story v. Lord Windsor, 2 Atk. 632.

2

for example, it has been adjudged, that if a plea sets up a bona fide purchase without notice, as a defence, it will not be sufficient to state in it, that the vendor being seised, or pretending to be seised, did convey, &c.; but there should be a direct averment, that the vendor was actually seised.' But, however true this may be as to a plea in Equity, technically so called, it can hardly be affirmed to be true in the framing of Bills or answers, in respect to which more liberality prevails. And it may perhaps be correctly affirmed, that certainty to a common intent is the most, that the rules of Equity ordinarily require in pleadings for any purpose.3

§ 241. In the next place it may be affirmed, as an elementary rule of the most extensive influence, that the Bill should state the right, title, or claim of the plaintiff with accuracy and clearness; and that it should, in like manner, state the injury, or grievance, of which he complains, and the relief, which he asks of the Court. In other words, there must be such certainty in the averment of the title, upon which the Bill is founded, that the defendant may be distinctly informed of the nature of the case, which he is called

1 Story v. Lord Windsor, 2 Atk. 632; Beam. Eq. Pl. 21.

2 3 Black. Comm. 446; 1 Mont. Eq. Pl. 27, note (m); 2 Mont. Eq. Pl. 92, 93, note (A. I.); Carew v. Johnston, 2 Sch. & Lefr. 305; Carlton v. Leighton, 3 Meriv. R. 671.

3 Wigram on Points in Discov. 77, 1st edit.; Id. p. 123, 124, 2d edit. ; Cooper, Eq. Pl. 181. It is sometimes laid down in the Reports, as well as in elementary works, that there should be the same certainty in a Bill in Equity, that there is in a declaration and other pleadings at the Common Law. So Lord Hardwicke is reported to have said in Story v. Lord Windsor, 2 Atk. 632. See also Mitf. Eq. Pl. by Jeremy, 284; 1 Mont. Eq. Pl. 25. But the proposition is not strictly accurate; and it has been well said by Mr. Wooddeson (3 Wooddeson Lect. 55, p. 370), that the matter of the Bill need not be set forth with that decisive and categorical certainty, which is requisite in pleadings at the Common Law. Thus, a part of the allegations of a Bill may be in the disjunctive.

upon to meet.' The other material facts ought, also, to be plainly, yet succinctly alleged, and with all necessary and convenient certainty, as to the essential circumstances of time, place, manner, and other incidents.2 If title deeds or other instruments are referred to, they should not be set out in hæc verba; but the substance of such portions only of them as are necessary to a right understanding of the real matters of the Bill.3

§ 242. Uncertainty in a Bill, (as has been well observed,) may arise in various ways. (1.) The case intended to be made by the Bill may be vague and uncertain. (2.) The case intended to be made may be certain; but the allegations of the Bill may be so vague and general, as to draw with them the consequences and mischiefs of uncertainty in pleadings.* (3.) Some of the material facts may be stated with sufficient certainty, and others again with so much indistinctness or incompleteness, as to their nature, extent, date, or other essential requisites (as, for example, in stating the title of the plaintiff), as to render inert or inefficient those, with which they are connected, or upon which they depend.5 In each of these

1 Houghton v. Reynolds, 2 Hare, R. 266.

2 Mitf. Eq. Pl. by Jeremy, 41; Cooper, Eq. Pl. 5; Wyatt, Pract. Reg. 57.

3 Wyatt, Pract. Reg. 57, 58; Barton, Eq. Pl. 31, note (2); Beam. Ord. in Ch. 25, 69, 70, 160, 167; Hood v. Inmann, 4 John. Ch. R. 437. In the East India Company v. Henchman, 1 Ves. jr. 289, the Lord Chancellor adverted to the looseness and prolixity of the Bill, in which a great many letters were set forth; and then added; "Allow the demurrer, and let them (the plaintiffs) file another Bill in three lines to suit the point, instead of stating all these letters, to show, that the transactions, appearing fair, in fact are not fair. Where is the use of that? What is the allegation?"

4 Wigram on Discov. 77, 78, 1st edit.; Id. p. 123-125, 2d edit. ; Wormald v. De Lisle, 3 Beavan, R. 18; Plumbe v. Plumbe, 4 Younge & Coll. 345.

5 Houghton v. Reynolds, 2 Hare, R. 264, 266.