demurrable. An allegation that an event occurred on or about a certain specified day is, however, sufficient. Less certainty is required concerning facts of which a discovery is sought from the defendant. And facts not necessarily in the complainant's knowledge he may allege "as your orator is informed and believes, and therefore avers."8 § 68. Scandal and impertinence.-"Every bill shall be expressed in as brief and succinct terms as it reasonably can be and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in hæc verba, or any other impertinent matter, or any scandalous matter not relevant to the suit."1 "Facts not material to the decision are impertinent, and if reproachful they are scandalous; and, perhaps, the best test by which to ascertain whether the matter be impertinent is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties." It is customary in bills seeking the protection or enforcement of rights depending upon complicated provisions of Federal or State statutes, to set forth such statutes either at length or according to their legal effect; and when the complainant depends upon historical facts, of which the court will take judicial notice, to state such facts also. Sometimes former decisions of the courts are similarly pleaded. Although this practice is not strictly correct, it is still convenient for the court as well as counsel, inasmuch as the case made by the bill is thereby made more easy of comprehension. It seems that exceptions to such allegations for impertinence cannot be sustained. Needless repetitions are imperti R. 718; Kelley v. Boettcher (C. C. A.), 85 Fed. R. 553; Curran v. Campion, 85 Fed. R. 67. § 68. 1 Rule 26. 2 Chancellor Kent in Woods v. Morrell, 1 J. Ch. (N. Y.) 103, at p. 106. See also Hood v. Inman, 4 J. Ch. (N. Y.) 437. For an illustration of scandal, see the record in U. S. v. Schurz, 102 U. S. 378. 3 Wells v. Oregon Ry. & N. Co., 15 Fed. R. 561; s. c., 8 Sawyer, 600; Allen v. O'Donald, 23 Fed. R. 573; Steam Gauge & Lantern Co. v. Mc nent. If a bill contains scandalous or impertinent matter, "it may, on exceptions, be referred to a master by any judge of the court, for impertinence or scandal; and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the reference." "No order shall be made by any judge for referring any bill, answer, or pleading, or other matter or proceeding depending before the court, for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order when obtained shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the Roberts, 26 Fed. R. 765. In a bill to enjoin the enforcement of an order of a State railroad commission for the reduction of railroad charges, an allegation that the reduction was made at the instance of the governor who was not a member of the commission; and quotations from his message to the legislature, and averments that he had in an address to the commission attacked a decision of the Supreme Court of the United States in violent language, were all held to be impertinent; but a statement of the action of the defendant's predecessors upon the same subject, and of the defendant's inaction against other railroad companies, was held to be relevant and not impertinent. Wilmington & W. R. Co. v. Board of R. Com'rs, 90 Fed. R. 33. See Einstein v. Schnebley, 89 Fed. R. 540. Upon a bill to restrain the infringement of a patent, averments as to decrees obtained by consent against strangers to the suit, and as to interference proceedings in the Patent Office with which defendants were not connected, were held to be impertinent. Western El. Co. v. Williams, Abbott El. Co., 83 Fed. R. 842. 4 Kelly v. Boettcher, 85 Fed. R. 55, 60; Norton v. Woods, 5 Paige (N. Y.), 260; Camden & A. R. Co. v. Stewart, 19 N. J. Eq. 343; Nevada Nickel Syndicate v. National N. Co., 86 Fed. R. 486. Allegations that a trustee was actuated by corrupt and improper motives are not scandalous or impertinent in a suit by the beneficiaries to remove him. Portsmouth v. Fellows, 5 Mass. 450. In a bill to remove the directors of a bank for paying a loss resulting from an illegal loan made by the officers, it was held proper to allege the previous unlawful management of the bank. Wilk. inson v. Dodd, 42 N. J. Eq. 234; s. c. as Dodd v. Wilkinson, 42 N. J. Eq. 647. 5 Rule 26. master to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examination." It has been held in England that a person not a party to the suit may, by leave of the court, file exceptions to a bill for scandalous matter reflecting upon himself. The court may of its own motion expunge scandalous matter at any time. Exceptions to a bill for impertinence cannot, however, be taken after answer. It has been intimated in England that an examiner might be made to pay the costs incurred by his taking down an impertinent answer by a witness.10 Neither scandal nor impertinence, however gross, is a ground for demurrer, it being a maxim of pleading that utile per inutile non vitiatur." It has been said that an exception for impertinence must be allowed in whole or not at all.12 § 69. Certainty.- A bill must state the plaintiff's case with sufficient certainty. The bill must state facts, not conclusions 6 Rule 27. See Camden & A. R. Co. the corporation and the dates of the v. Stewart, 19 N. J. Eq. 343. 7 Williams v. Douglas, 5 Beav. 82; Daniell's Ch. Pr. (2d Am. ed.) 402. 8 Kelly v. Boettcher, 85 Fed. R. 55; Ex parte Simpson, 15 Ves. 476; Daniell's Ch. Pr. (2d Am. ed.) 402, 403; Story's Eq. Pl., § 270. See also Langdon v. Goddard, 3 Story, 13. Story's Eq. PL., § 270. 10 Camden & A. R. Co. v. Stewart, 19 N. J. Eq. 343, 346. But see infra, § 284. 11 Daniell's Ch. Pr. (2d Am. ed.) 401. See also Pacific R. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 505, 516, 522. 12 Chapman v. School District, Deady, 108, 117, per Deady, J. For scandal and impertinence in answers, see infra, § 147. § 69. Thus a bill by a receiver of a national bank to recover for the loss caused to it by the negligence of its directors, which prays relief against the persons who acted as directors during various periods of time, together with the representatives of such as are dead, must" state the dates of the losses sustained by acts or omissions contributing to those losses, with sufficient certainty to inform each of the defendants with which and how many of the losses it is sought to charge him." Price v. Coleman, 21 Fed. R. 357. For an insufficient allegation that plaintiff was a bona fide purchaser of a note before its maturity, see Caesar v. Capell, 83 Fed. R. 409. For a lack of certainty in allegations concerning the assignment of a patent, see Jaros H. U. Co. v. Fleece H. U. Co., 60 Fed. R. 622. A bill to enjoin the enforcement as a lien upon land of a judgment entered a few days after complainant had begun to erect a building upon such land under a contract which he claimed gave him priority under a mechanic's lien, was held demurrable for lack of certainty because it failed to set forth "the actual dates at which he commenced, carried on, and finished work and labor, and the actual dates on which he furnished materials," in order that the court might determine the validity and extent and right to priority of law, which will be disregarded by the court. Thus, a general charge of fraud is not sufficient, but it must allege the specific acts or language which constitute the fraud.' All the evidence of the fraud need not be pleaded. It is sufficient if the main facts or incidents which constitute the fraud against which relief is desired are fairly stated so as to put the defendant upon his guard and apprise him of what answer may be required of him. An allegation of a fraudulent intent was held to be an allegation of a fact. A bill for relief from an of the lien he claimed. McKee v. Travelers' Ins. Co., 41 Fed. R. 117, 119. An allegation that a song formed a material part of a dramatic composition was held fatally indefinite because it failed to say whether the pleader intended merely the words of the song, which were set out in the bill, or also the music to which they were sung. Henderson v. Tompkins, 60 Fed. R. 758, 765. 2 Harper v. Hill, 35 Miss. 63. 3 Gilbert v. Lewis, 1 De G. J. & Sm. 38, 49; Bryan v. Spruill, 4 Jones Eq. (N. C.), 27; U. S. v. Atherton, 102 U. S. 372; U. S. v. Norsch, 42 Fed. R. 417. But see Field v. Hastings & Bradley Co., 65 Fed. R. 279; Kittel v. Augusta, T. & G. R. Co., 65 Fed. R. 859; Patton v. Glatz, 56 Fed. R. 367. See infra, § 106. A bill to set aside a decree for fraud must specifically state the manner in which the imposition was practiced upon the court. U. S. v. Norsch, 42 Fed. R. 417. A bill to set aside a land patent on account of fraud or mistake must state the particulars of the fraud, the names of those engaged therein, the officers who were deceived and the manner in which the mistake occurred. U. S. v. Atherton, 102 U. S. 372. But see U. S. v. Am. Bell Tel. Co., 128 U. S. 315. A bill to enjoin the erection of a county vault, which avers that the commissioners who let the contract 'were imposed upon by false and fraudulent representation made to 64 them by the contractor and carpenter, as to the character, quality, and cost of the material of said vault," does not show with sufficient definiteness what representations were made; and an averment "that said contract or agreement was made by collusion or agreement between said A. and co-respondents, or some of them, in order to give said A. an undue advantage in the erection of the vault over any other persons, to the great damage and injury of the county," is insufficient as failing to set out the facts constituting collusion. Hays v. Alrichs, 115 Ala. 239; s. c., 22 S. R. 465. See Moore v. Hawkins, 19 How. 69. 4U. S. v. Am. Bell Tel. Co., 128 U. S. 315, 316. It has been held that a creditor's bill for an injunction and a receiver, because of the fraudulent disposition of assets, need not describe the assets. Shainwald v. Lewis, 6 Fed. R. 766, 775. 5U. S. v. Am. Bell Tel. Co., 128 U. S. 315, 316. 6 Platt v. Mead, 9 Fed. R. 91. In a suit for a conveyance of land, it was held to be sufficient to allege that the defendant, while plaintiff's agent, proposed that she convey the property to him for the purposes of its management, and promised that he would reconvey it upon demand, which promise he then had no intention of performing, but made in order to fraudulently procure the land; and that she was induced by his old fraud must state the time of the discovery of the fraud, the reason why it was not discovered earlier, the means used by the defendant to conceal it, the manner in which it was learned, and the diligence with which the transaction was investigated. A general allegation of concealment and igno promise and representations to make the transfer. Alaniz v. Casenave, 91 Cal. 41. See also Tyler v. Savage, 143 U. S. 79; Peck v. Vinson, 124 Ind. 12; Lawrence v. Gayetty, 78 Cal. 126. An averment that one B. was from infancy of unsound mind, and that his mother and her legal adviser procured a deed from him for a grossly inadequate consideration, which was never paid, is a sufficient averment of fraud. Rhino v. Emery (C. C. A.), 72 Fed. R. 382. The allegation that a decedent, when very feeble both in mind and body, was persuaded and induced through some undue and improper influence, unknown to complainants, to execute a deed, was held to be insufficient. Jackson v. Rowell, 87 Ala. 685. But see Mott v. Mott, 68 N. Y. 246; S. C., 22 Atl. R. 797, cited infra, § 70. A bill alleged "that the bank was insolvent on the 5th day of May; that this was well known to its officers; that it wrongfully neglected to disclose its insolvency to complainant, and, by continuing business and otherwise, represented to complainant and all other persons dealing with it, that it was solvent; that complainant, on the faith of these representations, believed such to be the fact, without suspicion that the bank was, or was in danger of becoming, insolvent; that, acting upon the representations, and relying on the bank's solvency, complainant delivered the draft; that next morning the bank closed its doors, and the draft was collected thereafter; and that, by reason of the premises, the draft or its pro ceeds did not become the property of the bank." These allegations were held sufficient to charge fraud. "The omission to state in the pleading the degree of insolvency which rendered the bank's conduct fraudulent was not fatal, as the conclusion asserted showed the intention of the pleader." St. Louis & S. F. Ry. Co. v. Johnson, 133 U. S. 566, 577, 578. On a bill 'against the officers of a bank for damages caused by the bad management of its affairs, it was held that specific allegations, which in themselves might not be sufficient, when supported by general allegations of misconduct and negligence, made out a case for relief. Ackerman v. Halsey, 37 N. J. Eq. 336; s. c., 38 N. J. Eq. 501. A bill by a stockholder seeking dissolution of a corporation and accounting, alleged that business had been suspended, "among other things," because of the worthlessness of a patent under which it had been carried on, but without stating that that was the controlling reason; that the officers were misapplying the funds, but without stating that any effort had been made to have the corporation bring suit; that the officers had tampered with the books, but without stating in what manner; that certain assets had not been entered in the books, but without charging concealment or intentional wrong. It was held that the allegations were too general and indefinite to justify granting relief. Watson v. U. S. Sugar Refinery (C. C. A.), 68 Fed. R. 769. Badger v. Badger, 2 Wall. 95; |