is necessary that all of the heirs should be made parties, before such a sale can be ordered.1 A bill which seeks to set aside a fraudulent receipt obtained by an administrator from a distributee of a decedent's estate, and to recover the amount coming to that distributee, is not a suit in which all other persons interested in the estate can be heard, unless they are made parties, or make themselves parties to the suit in some appropriate way.2 The sureties of an administrator on his official bond may be joined with him in an equity proceeding for an erroneous and fraudulent administration of the estate by him, if on finding a balance against the administrator those sureties would be liable.3

The rule for ordinary cases of fraud on creditors by a debtor who has made an assignment, voluntary or involuntary, in bankruptcy or not, or by a corporation or the like in the hands of a receiver, is that the assignee or the receiver should sue, not individual creditors; but the case may be different where the assignee, upon sufficient notice or request, neglects or refuses to proceed, or where the evidence is such as to show that neither notice nor request would avail, as where collusion of the assignee with the debtor has been shown.5 So too in ordinary cases it is for the representative of an intestate debtor, who has made a conveyance in fraud of his creditors, to take the necessary legal steps to recover the property or its avails for the creditors, and not for creditors individually or otherwise than by the intestate's representative to sue. But the case will be different here also if the representative unreasonably neglect or refuse to proceed, or if he is shown to have been in collusion with the debtor in the fraud. In either of these two cases the recusant or colluding party should be joined with the debtor."

1 Harding v. Handy, 11 Wheat. 103.

2 Hook v. Payne, 14 Wall. 252.

3 Payne v. Hook, 7 Wall. 425.

4 Monitor Furnace Co. v. Peters, 40 Ohio St. 575.

5 Comp. Brewer v. Boston Theatre, 104 Mass. 378; ante, p. 57.

6 Bate v. Graham, 11 N. Y. 237.

7 See ib.; Monitor Furnace Co. v. Peters, supra.

The rule of equity that all persons materially interested in the subject-matter of a suit should be made parties to it, like all general rules, will yield whenever it is necessary that it should yield, in order to accomplish the ends of justice. It will yield, if the court is able to proceed to a decree and do justice to the parties before it without injury to absent persons, equally interested in the litigation, who cannot conveniently be made parties to the suit. And this exception prevails as well in the case of a bill founded on fraud as in other cases.1

Where a bill to set aside a conveyance as fraudulent is remanded or dismissed, because the complainant has not added necessary parties, costs are allowed a co-defendant, the person charged with having received the fraudulent conveyance.2

CHAPTER VIII.

PLEADING.

§ 1. ALLEGATION OF FRAUD.

RELIEF in equity or at law, on the ground of fraud, will not be granted, unless the fraud be made a distinct allegation in the bill or declaration, so that it may be put in issue in the pleadings. In bills in equity facts from which the allegation of fraud is derived are part of the case, and must therefore be alleged. For example it is held that a party seeking, on the ground of fraud, to open an account that has been allowed and settled in the Probate Court, must point out the particu

lars in which the account is fraudulent, so as to apprise the opposite party what he intends to prove; and he must lay such evidence before the court as will make out a clear prima facie case. But if the defendant goes to trial without objecting, and the plaintiff prove facts sufficient to constitute fraud, he will be entitled to a decree.2

In accordance with this rule a party who seeks to charge another with the consequences of a fraudulent breach of trust is bound so to state his case upon the bill that the circumstances alleged must, if proved, necessarily and at all events, constitute a fraudulent breach of trust. His case must not be left to bare inference. Where therefore an information was filed, alleging that certain payments, charged to be illegal and improper, were about to be made by a municipal corporation out of corporate funds, and praying that the corporation might be restrained from making them, but the payments were of such a kind that under certain circumstances (the existence of which was not negatived by the information) they might be justifiable, a demurrer was sustained.3

In like manner a declaration in deceit must show not only what the fraud was, and that the plaintiff has been injured,1 but also the connection of the fraud with the alleged damage, so that it may appear to the court whether the fraud and the damage sustain to each other the relation of cause and effect, or at least whether the one might have resulted directly from the other. Hence a general charge that a party acted 'fraud

4

ulently,' or 'made fraudulent representations,' is not good, unless accompanied with a statement of facts to sustain it;1 and this whether by the plaintiff or by the defendant.2 So too a party seeking relief from the payment of purchase-money on the ground of fraud must allege the fraud distinctly in his bill. And particular acts of fraud should be alleged. Thus that the plaintiff has understood that a sale was conducted fraudulently, that the defendants and others specified were the wrong-doers, and that they suppressed certain facts which ought to have been made known, are not a sufficient statement of the facts constituting the alleged fraud. It should appear in what respect the sale was fraudulently conducted, or what facts were suppressed to the detriment of the plaintiff.5 But if the facts alleged clearly show fraud, actual or constructive, it will not be material that there is no direct averment of fraud.6 And in an action for a false and fraudulent mis

1 Sharpe v. San Paulo Ry. Co., 8 Ch. D. 597, C. A.; Riley v. Riley, 34 Wis. 372; Welshbillig v. Dienhart, 65 Ind. 94; Hess v. Young, 59 Ind. 379; Durr v. Jackson, 59 Ala. 203 (affidavit of attachment must charge actual fraud and evil intent to hinder and delay creditors); McIlroy v. Buckner, 35 Ark. 555; Mock v. Pleasants, 34 Ark. 63; Estate of Kidder, 66 Cal. 487; West v. Wright, 98 Ind. 335. See McComas v. Haas, 93 Ind. 276.

2 Mills v. Collins, 67 Iowa, 164. 8 Noonan v. Lee, 2 Black, 499. 4 Marr's Appeal, 78 Penn. St. 66; Lewis v. Neugel, 38 Penn. St. 222; Mills v. Collins, 67 Iowa, 164.

Small v. Boudinot, 1 Stockt. 381. It is held in Missouri, under the new practice, to be unnecessary to set out the facts constituting fraud. A general plea of fraud is good. Edgell v. Sigerson, 20 Mo. 494. Indeed that practice was considered proper in that state under the common-law system of plead

ing.

Montgomery v. Tipton, 1 Mo. 318; Pemberton v. Staples, 6 Mo. 59; Hill v. Montague, 2 Maule & S. 377. The effect of the decision in Edgell v. Sigerson therefore is that the new practice does not require greater particularity than the old, not that it is satisfied with less. Under the Code of New York it is held necessary to set out the facts. Faure v. Martin, 7 N. Y. 210.

6 Farnam v. Brooks, 9 Pick. 212; Mussina v. Goldthwaite, 34 Tex. 125; McCalmon v. Rankin, 8 Hare, 1, 15; Marshall v. Sladden, 7 Hare, 428, 444; Pickering v. Pickering, 4 Mylne & C. 289.

If a declaration disclose a state of facts upon which an action may be maintained, independently of the existence of fraud, the plaintiff is not bound to prove fraud, though his declaration allege it; he may recover on the liabil ity which the facts disclose, though the allegation of fraud be in fact disproved. Swinfen v. Chelmsford, 5 Hurl. & N. 890.