Commercial Mutual Insurance v. McLoon , 96 Mass. 351 ( 1867 )

Hoar, J.

The demurrer is supported in argument upon the single ground that the bill is a bill to perpetuate testimony merely, and that its prayer for relief makes it multifarious. But the defendant does not attempt to controvert the position, that if the prayer to take testimony were stricken out, the bill would present a proper case for equitable relief. It alleges, by formal and sufficient averments, that the defendant obtained a policy of insurance by fraud, which gives him an apparent cause of action, from which the plaintiff is in danger; and prays that this policy may be given up and cancelled. The authorities are abundant to show that a bill for this purpose may be sustained.

The prayer that a commission may issue to take testimony does not seem to us to make such a bill multifarious. There is no prayer to perpetuate testimony ; and asking that a commission may issue to take testimony, though unnecessary to be inserted in the bill, and unusual, is merely a prayer for one of the common incidents of the suit, which does not in any degree affect the general scope of the bill, or impair its force or efficiency. It is superfluous, but adds no new or incongruous cause of action. ■ Demurrer overruled.