Page:Federal Reporter, 1st Series, Volume 7.djvu/423

 KMMA, ETC., CO. (LIMITBD} V. EMMA, ETC., CO. OF N. T. 411 �that it does not state the faots above referred to, or other factB independently of fraud, as the apparent ground or basis on which the pleader relied ; and that it does not con- tain any prayer for rescission, except on the ground of fraud. The form of the prayer for relief may undoubtedly be re- ferred to, where the purpose of the pleader is fairly doubtful, in the stating part of the bill, to ascertain the grounds on ■which he proceeds ; but in the present case the prayer of the bill is not inconsistent with an intent on the part of the pleader to rely on the facts above referred to, with or without proof of actual fraud. The prayer is that the transaction of sale be declared to be f raudulent and void ; that the complain- ant be decreed to be entitled to a return of the consideration ; and for general relief. The special relief thus prayed for seems to me to be enough to indicate that the pleader may have had in view an avoidance of the sale, even without proof of the alleged fraud. The prayer that it be decreed fraudulent and void is not necessarily to be understood as a prayer that it be declared void simply because fraudulent; and the prayer for the return of the consideration, which is the substantial part of the relief to follow a reseission, is equally appropriate in either view of the bill. Nor is there in the body of the bill anything to show that the pleader re- lied wholly on the alleged fraud, or framed his bill on the theory of fraud alone. I do not think, upon a fair perusal of this bill, that the defendants have been misled as to the grounds on which the relief sought is asked for. The defend- ants cite Hickson v. Lombard, L. E. 1 H. L. 321, as an authority for treating this bill as a bill for fraud only. There is nothing in that case to sustain this view of tho bill, except ^ dictum of Lord Cranworth, which, however, is not sustained by the opinion of the Lord Chancelier, and is opposed to the views of all the learned judges in the courts below, and is only applicable to the present case if it appears that the bill was so framed as to mislead the defendants into the belief that the complainant relied alone on his charges of fraud. I think that case fails to sustain this position of the defendants. These pleas must therefore be overruled. ��� �