Page:Federal Reporter, 1st Series, Volume 8.djvu/546

 532 PEDEBAL EEPOBTER. �jonr orators, and with reasonable diligence could not be learned during the pendency of the suit in this court, the only one to which your orators were parties." �A bill for relief on the ground of fraud rciust be specifie. It is not «nough to charge in general terms that a partioular transaction was fraudaient. The facts constituting the fraud must be stated, so that the court, and not the pleader, may determine -whether, if true, they constitute fraud. This rule applies to all bills for relief on the ground of fraud, including, of course, a bill to set aside a judgment or decree upon that ground. Story, Eq. PL 251, 428; Kerr on Fraud and Mistakes, 365. �It is also necessary to charge the intent to deceive, either by an «xpress averment or by such words as necessarily imply such in- tent. Moss v.Riddle, 5 Cranch, 351; Gray v. Earl, 13 lowa, 188. �The counsel who draf ted this bill evidently intended to comply with these rules by inserting the allegations embraced in the second quo- tation above, wherein it is set forth in eflfect that the balance due complainant was made to appear either by mistake of all the parties, or by deception practiced upon this railway company, or by collusion with that company. By this allegation the complainants say, in sub- stance, that the wrong was done them in one of these three ways, but as to which one they are unable to say. The insufficiency of such an allegation will be very apparent when it is suggested that mistake is one thing and fraud another, and that the character of the case and nature of the defence would depend very mueh upon the question whether it is a case of mistake or a case of fraud that is set out. �No man can be required to answer and prepare for trial upon a bill which leaves him in doubt as to the exact nature of the case against which he is to defend. Hence, the rule that allegations must not be in the alternative. Story, Eq. PI. 245, 245a. �In view of these considerations, I am constrained to hold that the bill does not set forth the circumstances of the fraud charged with sufficient certainty and partieularity. �2. The fraud relied upon is charged only upon information and belief. An injunction cannot be granted in the first instance upon an allegation of this character. It is necessary that the fraud should be made to appear by positive averments, founded on complainant 's own knowledge or that of some person cognizant of the facts. High on Inj. § 35, and cases cited; Id. § 118, and cases cited. �3. Another and much more important question is presented by this record, and bas been discussed by counsel. This is a bill to set ��� �