TREATISE PROCEEDINGS IN EQUITY, BY WAY OF Supplement anU ilebibon WITH AN APPENDIX OF PRECEDENTS. BY GEORGE TOWRY WHITE, ESQ. OF lincoln's-inn, barrister-at-law. LONDON: STEVENS & NORTON, BELL YARD; AND S. SWEET, CHANCERY LANE, AND A. MILLIKEN, GRAFTON STREET, DUBLIN. 1843. LONDON: WILLIAM STEVENS, PRINTEH, DELL YARD, TEMPLE BAR. PREFACE. The subject of this treatise has appeared to the author to deserve a more detailed notice than it has hitherto received. Occupying a portion only of works which embrace the whole field of Equity Pleadings or Practice, it has been necessarily circumscribed Avithin limits too narrow to admit of much discussion. By devoting a volume to its exclusive consideration, and subjecting it to a more strict analysis than it has as yet undergone, the author has thought that its principles may be better developed than they have hitherto been, and that much of the obscurity of which Lord Redesdale complains may be,— if not dis- persed, — at least put in train for dispersion by others. With this view the author has departed from the method which has been adopted in former treatises ; — that of first describing the bills in use, and then proceeding to inquire to what circumstances they are applicable ; — and has preferred bringing the imner- fections before the reader in the first instance, and thence deducing the measures provided for tlieir A 2 79/2.4r IV PREFACE. cure. In other words, whilst hitherto Supplemental Bills and Bills of Revivor have been taken as the data, and their objects as the qucBsita, the present author, reversing the problem, has treated Defect and Abatement as the matter given, and their respective remedies as the question to be determined. With respect to the precedents of Bills and Peti- tions given in the Appendix, the author thinks it proper to state that in a few instances, where he has been unable to meet with a precedent which suited his purpose, he has composed a fictitious form out of the materials within his reach. This is also the case with the Order, No. VI., which is an adaptation of the Order in Partridge v. Ushorne, (Reg. Lib. 1827, B. fol. 2249,) made to suit the petition and bill which precede and follow it. With this exception the Orders and Decrees are genuine. 18, Old Square, Lincoln'' s Inn, \st July, 1843. ANALYSIS. I. Imperfections originally inherent in a suit, p. 4. II. Imperfections subsequent to the institution of the suit, p. 61, I. The event alters the parties to the suit, p. 65, 1. By a civil death, p, 65, A, The interest survives the death, p. 65, a. Devolves by operation of law, p, 98, b. Devolves by the act of the party, p. 126. B. The interest ceases with the death, p, 148. 2. By changes of interest inter vivos, p. 171, A. An interest is assigned, p. 171. B. A new interest arises, p, 198, C. An interest ceases during life, p. 201. II. The event does not alter the parties to the suit, p. 20S. TABLE OF CONTENTS. CHAP. I. — Introduction. PAGE Object of the work . . . . .-1 What imperfections cannot be remedied by amendment . ib. Imperfections subsequent to the filing of the original bill . ib. Imperfections originally inherent cannot always be remedied by amendment . . . . .2 Obstacle from a change in the imperfection . . . ib. Obstacle from the advanced stage of the suit . . ib. CHAP. II. — Of Imperfections originally inherent in THE Suit. The nature of the remedy Amendment .... Supplemental bill . . Amendment preferable to supplemental bill . In what stages a supplemental bill will lie For what purposes a supplemental bill may be filed The supplemental matter must have been unknown at the filing of the original bill To correct an error in the original statements But the correction of the error must not change the original issue ..... To strengthen the original case Leave of the Court unnecessary in either case To extend the prayer for relief Partnership accounts The plaintiff cannot, at the hearing, make out an additional case for additional relief Unless the additional case has been already alluded to Much less after decree Nor can he, after decree, prosecute a case already made, but neglected ..... For discovery .... 4 ib. 5 6 7 ib. 9 11 12 13 14 ib. 15 ib. 16 ib. 17 vm TABLE OF CONTENTS. To perpetuate testimony . . To add parties . • . • • _ Case of a plaintiff purposely omitting a party . To make an infant co-plaintiff a defendant Where a party dies before appearance to the original bill To give further directions after decree, in aid of the decree But the bill must not seek to change the relief Form of the supplemental bill Original statements Former proceedings Supplemental matter Calls for answer to itself And sometimes for answer to the original bill Prayer Case of a change of name iu the plaintiff Signature of Counsel What party may file the supplemental bill Parties to the supplemental bill Original co-plaintiffs Original defendants Subpoena .... Defence . . • • Objection by motion irregular Pleas and demurrers Answer . • ' • Process to compel answer Replication . • ^« Evidence Interrogatories . • • • Whether the new defendant is bound by the former proceed ings Hearing and Decree pXge 17 18 19 20 21 ib. 22 23 ib; 24 25 ib. ib. ib. 26 ib. ib. 27 ib. 28 36 37 ib. ib. ib. 38 39 ib. ib. 41 ib. CHAP. III. — Of the Reversal of Decrees on Supple- mental Matter. Nature of the remedy for an erroneous decree . . 43 Bill of review . . . . . 44 Rehearing, and supplemental bill in the nature of a bill of review . . . . . ib. Leave of the Court . . . . . ib. TABLE OF CONTENTS. ix Affidavit . . . ■ ^ Respective prayers of the petition and supplemental-bill Conditions of the supplemental bill The new matter must be both relevant and material Whether the new matter may change the issue or not The new matter must have been unknown before publica tion • . . . Due diligence ... Confession after decree Decree obtained by fraud The decree must be first performed Exceptions . . A party who has not joined in the petition may sometimes have the benefit of it . The decree must be impeached in the Court in which it was made • • . . Leave to bring the bill is discretionary Bill of review is good after afiirmation of the decree in the House of Lords Review of a review is good Limitation of time for bringing the review Form of the bill States the former proceedings and the decree And the supplemental matter And the discovery And the leave of the Court . Prayer . , . , May be joined with bills of revivor or supplement Parties • • . . Subsequent proceedings PAGE 44 45. 47 ib. 48 53 ib. 54 ib. 55 ib. 56 ib. 57 ib. ib. ib. 58 ib. 59 ib. ib. 60 ib. ib. ib. CHAP. IV. — Of Imperfections Subsequent to the Insti- TUTION OF THE SuiT. The various sorts of imperfections subsequent Where the event causes a change in the parties Civil death of a party «... Where the interest survives the death . Where the interest dies with the party Changes of interest inter vivos . Where the event causes no change in the parties Division of the subject 61 ib. 62 ib. 63 ib. ib. ib. TABLE OF CONTENTS. CHAP. v. — Of Abatement. PAGE Nature of abatement . . . . .65 May be total or partial . . . . ib. Cannot occur in a creditors' suit where there are more than one plaintiff . . . . . ib. Unless they sue in respect of their several demands, or in dif- ferent capacities . . . . . 66 What events cause abatement, and the contrary . . ib. Excommunication and popish recusancy no longer cause a civil death . . . . . 67 Death . . . . . . ib. Marriage of a female . . . . . ib. Outlawry . . . . .68 Attainder . . . . . . 70 War, in the case of an alien . . . . ib. Bankruptcy and Insolvency . . . . ib. Effects of abatement . . . . .72 I. On existing proceedings . . . . ib. Order to dismiss bill . . ' . ib. Process, injunctions, &c. . . . . 73 A ^er^e^wa/ injunction does not abate . . . ib. II. On further proceedings . . . . ib. Order in the cause . . . . . ib. Process of contempt . . . . . 74 Crossbill . . . . .75 Depositions . . . . . . ib. Passing a decree . . . . . ib. The irregular proceeding must be questioned at the time of its occurrence . . . . . 76 Partial abatement . . . . . ib. Exceptions to the rule . . . . . 77 Payment of money out of Court . . . ib. Delivery of deeds and writings . . . . 79 Conduct of the cause . . . . ib. Enrolment of decree . . . . . ib. Discharge of irregular order . . . . ib. Depositions . . . . . . ib. Judgment . . , . .80 Order on appeal . . . . . ib. CHAP. VI.— Of Revivor. Nature of revivor . . . . .81 For what purposes a suit may be revived . . . 82 TABLE OF CONTENTS. XI Not for costs • • . . Unless they have been taxed Or left untaxed by special agreement Or where they are to be paid out of a particular fund For further discovery .... To supply an omission in a decree What party may revive a suit Before decree • . . . There is no priority .... Whether a defendant may move for dismissal in default revivor .... After decree ..... A defendant need not give notice of his intention to revive A defendant may revive wherever he has an interest Mode of revivor ..... Where the interest devolves by the operation of law Where the interest devolves by the act of the deceased of PAGE 82 83 ib. 84 ib. 85 ib. ib. 86 87 93 94 95 96 ib. ib. CHAP. VII.— Of Revivor by Simple Bill and Order. Nature of the process , . . . .98 One bill of revivor in several suits . . . ib. Bill of revivor and supplement , , .99 Where a defendant dies before appearance to the original bill 100 Revivor by scire facias . , . . ib. Abatement by marriage . . . .102 Form of the bill of revivor . . . . . ib. Original statements . . . . ib. Subsequent proceedings . . , , 104 Prayer . . . . . . ib. Amendments of the original case , . . . ib. An executor reviving must charge that he has proved the will . . . . . .105 Bill of revivor against an executor may inquire as to assets . ib. Where the bill of revivor calls for an answer to the original bill . . . . . .106 A bill of revivor after decree must not controvert the decree ib. Signature . . . . . . ib. Parties . . . . . . ib. Original co-plaintiffs . . . . . ib. Original defendants . . . .110 Death of sole plaintiff . . ..Ill Of a co-plaintiff . . . . . ib. Xil TABLE OF CONTENTS, Of a defendant .... Revivor by a defendant after decree The bill of revivor need not add an entirely new party, how ever necessary . . . • Subpoena . . . . • Order for revivor .... I. Where the defendant absconds II. Where the defendant refuses to enter an appearance III. Where the defendant appears, but does not shew cause The defendant may move to dismiss the bill of revivor, if the order to revive is not obtained . . . . After decree a defendant may revive on the plaintiff's bill of revivor .... IV. Where the defendant shews cause Mode of shewing cause against revivor Cause may be shewn after the order for revivor has been ob tained .... An answer to a bill of revivor must be confined to the subject of the bill of revivor Exceptions to the answer Where the bill of revivor calls for an answer to the original bill ..... Process .... Replication ..... Hearing . . . • Subpoenas to hear judgment PAGE 111 112 ib. ib. 113 114 115 ib. 116 117 118 ib. 119 ib. 122 123 ib. ib. ib. 125 CHAP. VIII. — Of Revivor by Supplemental Suit AND Decree. Nature of the process .... I. Where a sole plaintiff devises Original bill in the nature of a bill of revivor Form of the bill .... Parties .... Defence . . . . . Subsequent proceedings II. Where a defendant devises Supplemental bill in the nature of a bill of revivor Where a defendant devises before appearance to the original bill ..... Form of the bill Amendment of the original case 126 ib. 127 129 131 ib. ib. ib. 132 133 ib. 134 TABLE OF CONTENTS. XIU Parties III. Where a co-plaintiff devises . IV. Wliere tlie devise is after decree PAGE 135 13fi ib. CHAP. IX. — Of the Revived Suit. Effects of revivor on the original suit . . . 137 I. On existing proceedings . . . . ib. A limited time allowed for any thing . . . ib. Process of contempt . . . . . 138 Sequestration . . . . .139 Receivership appointed on process . . .141 Subpoenas to hear judgment . . , . ib. Injunctions . . . . . . ib. A defence already put in . . . .142 An appeal . . . . . . ib. Costs of the original suit .... 143 Proceedings erroneously had after the abatement, but before the revivor . . . . . 144 II. On further proceedings .... 145 Amendment . . . . . ib. Interrogatories . . . . . ib. Decree &c. . , . . . , 147 Any party may prosecute the revived suit after decree . ib. QucBre whether the revived suit must be set down for hearing because a specific direction in the original decree has not been complied with . . . . . ib. CHAP. X. — Of the Cessation of Interest upon the Death of a Party. Death of a corporation sole .... 148 Original bill in the nature of a supplemental bill . . ib. Form of the bill ..... 149 Benefit of former proceedings . . . . 150 Parties •...,. 152 Exceptions to the rule . . . . . 153 Administrator de bonis non . . , . ib. Executor acting by mistake . ... 154 Committee of lunatic . . . . . ib. Next friend • . . . . 155 Assignees of bankrupt or insolvent debtor . . . ib. XIV TABLE OF CONTENTS. Sole plaintiff in a creditors' suit, when his representative declines to proceed with it on his death . .155 Wife and children, after reference to the Master to approve of a settlement . . . . . 157 Death of a tenant for life . . . . ib. The bill must shew that the interest was determinable . 158 Death of a first tenant in tail without issue . . .159 Ca.se oi Lloyd V. Johnes . . . .162 Consideration of Lord Eldon's judgment . . . ib. The second tenant in tail proceeds or is proceeded against by a simple supplemental bill . . . .167 And may appeal against a decree . . . ib. Death of a husband party in right of his wife . . 168 Where he is a plaintiff . . . . . ib. Where he is a defendant . . . .169 The death of the w'?ye causes imperfection . . .170 Death of a relator, or plaintiff in interpleader . . ib. CHAP. XI. — Of Assignment of Interest. Effects of assignment . . . . . 171 I. Where the assignment puts an end to the whole suit, as a total assignment by a sole plaintiff . . .173 The assignee files an original bill in the nature of a supple- mental bill . . . ..174 Motion by a defendant to dismiss for want of prosecution, where a sole plaintiff becomes bankrupt . . ib. How far the benefit of a decree in the first suit is obtained in the second suit . . . . . 177 The assignee must shew that the first decree was a proper one . . . . . . ib. Where a plaintiff becomes lunatic, idiot, or imbecile . 179 II. Where the assignment causes a defect only, and the plaintiff wishes to remedy it by adding the assignee . .180 Where the assignment is questionable . . . ib. A plaintiff becoming bankrupt may proceed with his own suit 181 Partial assignment by a sole plaintiff . . . ib. Assignment by a co-plaintiff . . . . ib. Assignment by a defendant . . . .182 Where a defendant becomes banki'upt, the plaintiff may go in under the bankruptcy . . . . ib. Where a defendant assigns before appearance . . ib. TABLE OF CONTENTS. XV PAGE Case of new trustees of a Charity appointed in the place of former trustees defendants . . , jgo One supplemental bill will not supply a defect in more than one suit . . , _ Form of the supplemental bill . . - . Parties • . . , . Evidence . . . ^ How far the assignee is bound by the evidence Decree &c, . A defendant may bring forward the assignee, after decree The assignee comes in pro bono et malo III. Where the assignee adds himself to the suit, on the plaintiff' neglecting to do so . He may sometimes come in without filing any bill Otherwise he files a new bill, after giving notice to the plaintiff ib. How far the assignee gets the benefit of the former decree 195 ib. 184 185 186 187 190 191 192 ib. 193 CHAP. XII. — Of the Rise of a New Interest. Nature of the remedy . . . _ jog Case of an intermediate tenant in tail coming into esse . 199 CHAP. XIII. — Of the Cessatiox of an Interest during Life. Nature of the new proceedings Exceptions to the general rule Administrator durante minori cetate Administrator pendente lite Removal of assignees of bankrupts or insolvents Rightful heir put in the place of a wrongful heir 201 204 ib. 205 ib. 206 CHAP. XIV. — Of Events which do not alter the Parties. Nature of the remedy . . _ 208 Amendment . . . _ ju Supplemental bill . . , _ 210 Nature of the supplemental matter . . , ib. Not good to support a bad title . . . . ib. The new event must be material . . .212 It must be material to the merits and not to the evidence . 213 XVI TABLE OF CONTENTS. Supplemental bill not necessary in order to obtain a ne exeat regno . . . . . 215 Where the subject matter of the suit has become altered . 216 Whei'e the subject matter of the suit has become augmented 217 To vary the relief when the former relief prayed has become impossible . . . . . 218 For an account of receipts and profits . . . 219 Will not lie to alter a decree already made . . . 220 Form of the bill, Parties, and Subsequent Proceedings . . 221 ADDENDA. Amendment and supplemental bill . . . . 223 Bill of revivor and supplement .... 225 Abatement after bill taken pro confesso . . . ib. Administrator de bonis nan .... 226 APPENDIX OF PRECEDENTS. I. Supplemental bill to introduce new matter which existed at the time of filing the original bill, — Vide Chap. II. 229 II. Supplemental bill against new parties who ought to have been made defendants to the original bill. — Vide Chap. II. . . . . . 235 III. Supplemental bill against the representative of a defendant to the original bill, who had died lefore appearance, — Vide Chap. II. . . . . 240 IV. Petition for leave to file a supplemental bill in the nature of a bill of review. — FzWe Chap. III. . . . 245 V. Affidavit in support of the petition. — Vide Chap. III. . 250 VI. Order for leave to file the \A\\.—Vide Chap. III. . 251 VII. Petition for rehearing the cause. — Vide Chap. III. . 252 VIII. Supplemental bill in the nature of a bill of review. — Vide Chap. III. . . . . .254 IX. Bill of revivor.— Fi(fe Chap. VII. . . . 258 X. Order for revivor. — Vide Chap. VII. . . 262 XI. Original bill in the nature of a bill of revivor. — Vide Chap. VIII. . . , . . 263 XII, Supplemental bill in the nature of a bill of revivor. — Vide Chap. VIII. . . . .268 XIII. Decree for revivor. — Vide Chap. VIII, . . . 271 TABLE OF CONTENTS. xvii PAGE XIV. Original information in the nature of a supplemental in- formation against the successor of a Rector defendant. — Vide Chap. X. . . . _ 272 XV. Decree on an original bill in the nature of a supplemental bill, filed by a remainder-man on the death of a tenant for life. — Vide Chap. X. . . .278 XVI. Original bill in the nature of a supplemental bill by the assignees of a bankrupt plaintiff. — Vide Chap. XI. . 279 . XVII. Supplemental bill against the assignees of a bankrupt defendant. — Vide Chap. XI. . . , 283 XVIII. Decree on a sujiplemental bill against the assignees of an insolvent defendant. — Vide Chap. XI. . . 287 XIX. Order for leave to a purchaser jiendente life to attend the Master in making inquiries under the decree. — Vide Chap. XI. .... 288 XX. Supplemental bill against a child born pendente lite. — Vide Chap. XII. .... 289 Index . . . . . , . 293 TABLE OF CASES. PAGE Abergavenny v. Abergavenny . 68 Adams v. Dowding Adamson v. Hall Altree v. Horden Anderson v. Wallis Anon. 1 Atk. 88 1 Atk. 263 3 Atk. 691 3 Atk. 726 Gary, 31 • Freem. 31 2 Law J. 170 12 Mod. 343 2 P. W. 283 1 Vern. 351 2 Vern. 197 . Armstrong, ex parte Asbee v. Shipley Askew V. Peddle V. Townsend Atholl v. Derby Att.-Gen. v. Barkham V. Day 214 88,91 . 92 20, 24 . 155 . 71 . 95 . 168 . 205 . 48 . 86 . 55 . 45 . 170 . 168 . 77 21, 25 155, 158 . 73 . 140 82,110, 111 . 178 V. Fishmongers' Co. 13, 224 V. Foster 149, 183, 202 V. Pearson . . 33 V. Turner . . 48 B. Backhouse v. Middleton . 75 Bagnall v. Bagnall . 40 Baillie v. Jackson . 41 Bainbridge v. Blair . 155 Baldwin v. Mackown 25 Ball V. Going . 139 Bampton v. Birchall 100 Barbon v. Searle 57 Barfield v. KeUy Earned v. Laing Barrington v. O'Brien Barrow v. Hobhouse Beard v. Powis Beaumont v. Boultbee Bennet v. Lee Bertie o. Falkland . Betagh v. Concannon Bignall v. Atkins Bingham v. Dawson Binks V. Binks Blake v. Foster Bligh V. Darnley Blower v. Morretts . Boddy V. Kent 66, 73 Boeve v. Skipwith " . Bolton V. Bolton Bond V, Newcastle . Booth V. Creswicke Bowyer v. Bright Boyle V. Blake Branch v. Primrose Bray v. Woodran Bromley v. Gregory Brown v. Clark V. Higden . Lee Buckingham v. Sheffield Burdett v. Rockley Burnell v. Wellington Burney v. Morgan Byne v. Potter Byrne v. Byrne PAGE . 220 . 215 . 53 . 183 . 79 5 47,57 . 76 . 144 . 28 . 54 . 195 48, 50, 54 . 140 . 84 ■4, 79, 158 . 17 . 116 . 37 . 194 . 37 . 119 . 106 . 141 . 177 . 179 . 61 . 115 . 79 . 140 88, 91 66, 87, 147 . 141 . 212 Caddick w. Masson . .177 Caermarthen v. Hawson . .140 Canham V. Vincent . 88,117 XX TABLE OF CASES. 12; Carlisle v. Globe Carrington v. Holly Cattell V. Corrall . Catton V. Carlisle . Chambers v. Middleton Chichester v. Hunter Child V. Frederick . Chowick V. Dimes • Clapham v. Phillips Clare v. Werden ■ V. Wordall Clough V. Bond Clunn V. Crofts Cockbnrn v. Raphael Cockburne v. Hussey Codrington v. Houlditch Coke V. Hodges Colclough V. Evans, 12, Cook V. Bolton Cramborne v. Dalmahoy Crawford v. Fisher . Crompton j-.Wombwell, 7 Cropper v. Knapman Croster v. Wister . Crowfoot V. Mander Curtis V. Smallridge D. PAGE . 47 . 44 184, 191 . 39 . 116 . 88 71, 128 88, 117 . 79 . 120 , 128, 130 21, 25, 31 178, 195 141 40 118 205 , 224 79 70 218 ,13,14,224 14 101 21, 25 . 54 13, 14 Davidson v. Butler . 71 . 212 Davies v. Davies . 80 . 157 Delfosse v. Crawshaw 9, 27 Derby ?'. Ancram . 140 Devaynes v. Morris 95, 120 Dixon V. Wyatt . 156 Dodson V. Juda . 85 Dolan V. Nevill . 56 Dormer v. Fortescue . 21 Dryden v. Walford . 89, 117 Dunny v. Filmore . . 57 Durbanie v. Knight . 143 Durham, Bp. v. Liddell . 55 Dyneby v. Hartley . . 23 Dyson v. Morris 33, 35 E. Eades v. Harris Edgill V. Brown Edwards v. Carroll EflBngham's case Egremont v. Cowell Exton V. Turner Eyton V. Eyton PAGE . 225 . 110 . 169 Fallowes i). Williamson, 28, 86, 110, 138, 158 Feary v. Stephenson, 33, 35, 3fi, 110, 186 Ferrers v. Cherry . . .81 Field V. Delaney . • .15 Finch V. Winchelsea, 65, 76, 86, 95, 157 Fitton «. Macclesfield . 55,58,60 Folland r. Lamotte . .117 Foster v. Deacon . • • 194 French y. Barber . . .175 172, 192 , 83 . 58 . 49 G. Garth v. Crawford . V. Ward Gibbs V. Churton . Giftbrd v. Hort Gilchrist v. Reiiten . Giles V. Giles Glover v. Portington Godwin v. Ferrars . Goodwin v. Goodwin Gordon v. Bertram . Gough V. Latouche Gould V. Barnes Greenwood v. Atkinson Gregson v. Oswald . H. Hall r. Smith . Hamilton v. Houghton Hampden v. Brewer Harries v. Johnson . Harris v. Pollard Hartwell v. Townsend Hawkins v. Crook . Hill V. Chapman Hitchens v. Congreve Hodson V. Ball Horwood V. Schmedes Houlditch V. Donegall Huet V. Sav & Sele . 187 . 187 75, 110 . 167 , 155 26, 40 . 46 . 68 . 6 . 117 . 154 . 84 7,30,33, 35, 36, 222 . 73 83 178, 179 137,159 . 147 119,124 46,60 . 140 . 56 . 187 45,60,99 73,93,95 . 156 . 136 22, TABLE OF CASES. XXI PAGE Huggins V. York Buildings Co. 82, 124 . 39 '7,112 . 208 . 105 . 175 . 175 Hyde v. Donne . , .45 V. Forster . . .139 V. GreenhUl . . .140 Hughson V. Cookson Humphreys v. HoUis V. Humphreys V. Incledon . Huntingtower i\ Douglas . V. Sherburne J. Jackson v. Rawlins V. Smith Jenour v. Jenour Johnson v. Northey - V. Peck Jones V. Bassett r. Howell V. Jones V. Smith V. Williams Jupp V. Geering K. Kemp V. Mackrell . Kent V. Kent . Killigrew v. Killigrew Kilminster v. Pratt King v. TuUock Knight V. Knight . V. Mattliews V. Waterford Knox V. Brown L. Lake v. Anstwick V. Mason Langley v. Fisher Latham v. Kenrick Lautour v. Holcombe Lee V. Lee V. Warner Leigh I', Thomas Lewis V. Armstrong V. Bridgman Livesey v. Livesey . 170 . 68 . 84 128,178 . 84 . 205 34,36 16,37, 221 115, 146 . 77 . 83 82,83,84 95 69 177 212 17 209 17 182 125 143 119,222 177 19 117 115 66 143 118 86 89 PAGE Llewellyn v. Mack worth . 37, 45 Lloyd V. Johnes 159, 160, 161,162, 167 V. Powis . 143 V. Russell . 30 Loubier v. Cross . 45 Lowndes v. Taylor . . 181 Lowteni;. Corp, of Colchester . 83 Ludlow V. Macartney . 54 Lyon V. Mercer . 154 M. Manaton v. Molesworth Manson v. Burton . Marten v. Whichelo Mehrtens v. Andrews Mendham v. Robinson Metcalfe v. Metcalfe Micklethwaite v. Calverley Mills V. Fry . Milner i'. Harewood MinshuU v. Mohun . Mole V. Smith Monteith v. Taylor . Montgomery v. Clarke Moore v. Elkington ?'. Moore Morgan v. Scudamore Morris v. Ellis Murray v. Elibank . Mutter V. Chauvel . N. Nanny v. Totty Nelson v. Bridges . Newdigate v. Newdigate Norris v. Le Neve . O. O'Connor v. Spaight Oldham r. Eboral Onge V, Truelock Ord V. Noel . Ormsby v. Palmer Osborne v. Usher Owen V. Curzon Oxbursh v. Fincham . 55 . 182 . 226 . 9 . 155 . 112 . 142 . 177 . 213 . 132 . 170 . 182 . 49 . 99 45, 46 . 82 . 214 . 157 . 212 120, 122 . 216 . 17 48, 59 . 213 . 206 24, 147 47,53 . 187 . 158 . 153 . Ill xxu TABLE OF CASES. PAGE Palk V. Clinton ... 5 Partridge v. Usborne 45, 50, 55 Paterson v. Slaughter . .49 Peachy v. Vintner . . .76 Pemberton v. Walford . . 223 Penfold V. Penfold ... 26 Perry v. Phelips . 46, 59, 60 Peters v. Robinson . . .80 Phelps V. Sproule • . 104, 226 Philipps V. Clarke . . 114, 194 Philips I'. Darbie . . . 145 Pinkus V. Peters . . 219, 222 Pitt V. Arglass . . .57 V. Richmond's creditors Poole V. Marsh Porter v. Cox . Portsmouth v. Effingham Price V. Keyte Pritchard v. Draper V. Foulkes Pruen v. Lunn Simmons v. Gutteridge Sinclair v. James Smart v. Floyer Smith V. Effingham Spencer v. Wray Standish v. Radley . Stewart v. Nicolls Stowell, Lady, v. Cole , Lord, V, Cole 157 119 175 47 60 211 41, 147 Strickland v. Strickland Stuart V. Ancell Stubbs V. Leigh Swan V. Swan FAUE . 15 . 80 . 75 . 20 . 81 44,45 21, 25 . 93 . 93 11,27 . 142 . 205 9 T. Thompson v. Took . Thorpe v. Mattingley Tirrel v. Moreton . Tonkin v. Lethbridge 114, 118 : Toosey v. Burchell . Troward v. Bingham Tucker v. Wilkins . R. Randall v. Mumford . .176 Ranger v. Great Western R. Co. 13 Rees V. Mansell . 114 Roberts v. Griffith . . 18 . 53 Robinson v. Robinson 106, 179 Roundell v. Currer . . 77 Russell V. Sharp . 193 Rutherford v. Miller . 182 Ryland v. Latouche . 82 Sadler v. Lovatt . . ,10 Salisbury v. Hatcher . . 32 Samuda v. Furtado . . 142 Savil V. Darcy . . .55 Sayer v. Sayer . . .82 SayleiJ. Graham . . 38, 123 Sellers v. Dawson . . 71, 73 Semple v. L. & B. Railway Co. 181 . t>. Price . 18,31,33 Setcole V. Healy . . .177 Sharp V. Taylor Shelberry v. Briggs . Shepherd v. Titley . Sherrington v. Smith 215 169 179 58 80 80 46 210 193 114, 116, 143 . 84 U. University Coll. v. Foxcroft . 140 Upjohn V. Upjohn . 152, 158 Usborne ». Baker . . 17,215 Vendebende v, Levingston . 46 Vigersw.Audley,36, 37,38,113, 123, 184 W. WagstafFw. Bryan . Waite V. Temple Wakelyn v. Wathill Ward V. Lake . 120 . 19 . 138 . 101 Warner v. Armstrong Wartnaby v. Wartnaby Webb V. Webb . 143 . 179 . 46 Werden v. Gerard . . 178 West V. Skip . Wharam v. Brougliton Wheeler v. Malins . 178 139, 140 . 177 Whitcomb v. Minchin . 192 TABLE OF CASES. xxm White V. Hayward . Whitehear v. Hughes Willan V. Willan Williams v. Arthur V. Cooke V. Mellish Wilson V. Todd V. Webb Winter v. Dancie Witham v. Bland Wood V. Wood Woods V. Creaghe PAGE . 139 . 117 . 49 . 85 . 93 . 55 . 16 . 57 . 80 . 140 7 . 141 PAGE Woods V. Woods, 24, 104, 132, 134, 135, 145 Woodward v. Woodward 8, 19 Woolley V. Gordon . . 14 Wortley v. Birkhead . .221 Y. Yeomans v. Kilvington Young V. Keighly . . 73 49, 53 ADDENDA ET CORRIGENDA. Page 7, note (/), add " See also Wood v. Wood, 1840, 4 Y. & Coll. E. E. 185." P. 49, line 15, /or " of" read " when." P. 80, note («), insert the date, " 1634." P. 89, note (/), col. 1, lines 6, 7, /or "have seen" read " shall see." P. 104, line 12, refer to " Phelps v. Spro^de, 1831, 4 Sim. 318," P. 106, line 19, dele "the." P. Ill, line 9, refer to " Cave v. Cork, 1843, 2 Y. & Coll. C. C. 130." P. 146, note, add " affirmed, 1843, 7 Jurist, 500. See also S. C, 2 Y. cS: Coll. C. C. 42." P. 155, note (r), col. 1, line 7, for " Acts" i-ead " sections." P. 175, note (d), add "In Tennant \. Storar, 1843, 7 Jurist, 526, where the plaintiffs became insolvent, Sir J. L. Knight Bruce, V. C, dismissed their bill in default &c. with costs ; ordering, however, that no proceedings should be taken against the plaintiffs, personally, for the costs." A TREATISE, CHAPTER I. INTRODUCTION. The object of this Treatise is to point out tlie reme- Object of the dies for such imperfections as may exist or occur in y °J''' , tlie frame of a suit in Equity, and cannot be cor- i-ected by Amendment of the Original Bill. A certain description of imperfections, therefore, being excluded from the consideration of tliis v/ork, it may be desirable to show more fully to what tliat exclusion applies. Within certain limits of time, and of siilject matter, Amemlment, a plaintiff is allowed to correct an error by amendment of his original bill. The bill so amended speaks from its original date, and the plaintiff is thereby put in the same situation as if the error in question had never existed. From this property, however, of an amended bill, it necessarily follows that that remedy b appli- cable to those imperfections only which are originally inherent in a suit, and not to those which may arise in it from the subsequent course of events. For it would be manifestly absurd to allow a document which is to bear date as from a past period, to refer to an event posterior in time to such date. All imperfec- Imperfections tions, therefore, which arise in a suit during- the ^'^'^'^^'i"'^"* '■^ £. . . 1 T r« , • 1 filingof original proo-ress or it, are incapable ot bemg remedied bv bill. 2 Introduction. Object of the amendment (a), and fall, consequently, within the pro- V "'^ ' i vinee of this Treatise. Imperfections Noi* are imperfections originally inherent in the originally in- gj^j^.^ r^^-^^ wliich Seem to fomi the natural subject of amendment, always susceptible of that remedy. Amendment may become impossible from changes which have happened relative to the subject of the imperfection since the beginning of the suit; or from the progress which has been made in the suit render- ing an alteration in the original bill inconvenient. Obstacle from The first sort of obstacle may occur in various ways, hnSctira.^^ ^^"^ ^^ ^^^^ ^^ sufficient to give a single example. Sup- pose that in the original bill a necessary party is omitted ; — here is an imperfection inherent in the suit ah initio, and capable of being remedied by amend- ment. But suppose that, before the bill is amended, the party omitted dies, and thereby some other per- son becomes a necessary party ; — the remedy by amendment is clearly no longer available, as it would be necessary to state in the bill an event subsequent to the filing of it, which we have seen is inadmissible. Obstacle from The second sort of obstacle to amendment, arises stage of the from the inconvenience of deranging the suit after a suit, certain period. When a cause has gone through seve- ral stages, any material alteration in the original bill, on which all the proceedings hinge, would obviously tend to produce great confusion. The liberty, there- fore, allowed to a plaintiff, of amending his bill, be- comes more and more circumscribed as the suit draws nearer to its termination ; and in the same proportion his power of using the remedies treated of in this work increases. (a) In some few instances the introduced into it by amendment. Court breaks through this rule, and These will be noticed in a subse- allows events which occur after quent part of this work, the filing of the original bill to be Introduction. 3 From what has been said above, our subject will Object of the naturally divide itself into two j3arts ; the first of which v ^°''''"' . will treat of cases where the suit is imperfect from the beginning; while the second will be devoted to those in which the suit, though originally complete, becomes imperfect by subsequent events. B V CHAPTER II. OF IMPERFECTIONS ORIGINALLY INHERENT IN THE SUIT. The nature of WHENEVER ail error lias been committed in the frame the emey. ^ ^^^ orjo-inal bill, the suit is from the beoinniiio- more or less imperfect. It is obvious that tliere are various sorts of such errors. The plaintiff may subsequently discover that some fact has been falsely stated ; — that some material fact has been altogether omitted ; — that the prayer of his bill is not sufHciently exten- sive ; — or, lastly, that be has neglected to include in the suit some one who is a necessary party to it (a). Amendment. It has been already stated, that up to certain periods of the proceedings these imperfections may, with more or less of difficulty, be remedied by amendment of the original bill, unless there has been any change in the subject of the imperfection since the filing of that ]n\l. It will be necessary, therefore, before we proceed to consider any other remedy, to call to mind the limits within which amendment is applicable. We learn from the treatises on this subject, that, until ansAver, a plaintiff' may amend his bill as often as he pleases ; and that the leave of the Court for that purpose may be obtained as of course ; — that after an- swer, and before replication, his right is restricted to (a) Another fault in a bill may in which case it is remedied by dis- be, that it includes unnecessary par- missing the bill against him ; or it ties. But this is either matter of is vitally prejudicial, as where one surplusage only, and does not afl'ect of several plaintiffs has no interest the efficacy of the suit, as where in the suit, in which case it is in- the superfluous party is a defendant, capable of remedy. Of Imperfections originally inherent in the Suit. 5 once only, except upon the terms specified in tlie The nature of Thirteenth Order of 1828 ;— but that after replication ^the Remedy.^ no amendment can in general be made, because the replication has the effect of putting the cause in issue. It is true that, in some cases, the Court will allow the jilaintiftto withdraw his replication, and the7i to amend his original bill ; but for this purpose special leave must be obtained upon motion with notice ; and the Court must be satisfied, not only that the matter of the proposed amendment is material, but that it could not with reasonable diligence have been sooner intro- duced into the cause (b). It is true, also, that there are some cases in which, after replication, a bill may be amended without with- drawing the replication. Thus it appears that the prayer for relief may be extended after replication, if the case already made by the bill warrants the prayer for the additional relief (c); although a neio case can- not be made without first withdrawing the replication. So new parties may be added by amendment vrhile a replication is on the file, and new averments may be made for the purpose of shewing the necessity of such new parties, provided such new averments do not vary the case already made against the original parties {d). As, however, it is not at all times, and on all occa- Suiipiemental sions, that imperfections in the frame of a suit can be remedied by amendment, another sort of remedy is permitted. This is obtained by filing a new bill, which refers to the original bill, and states the new matter necessary to be brought before the Court, and prays I'elief founded upon such new matter according to the circumstances of the case, together with the benefit of (Z.) Order XV. 1828. (rf) Palk v. Clinton, 1806, 12 (c) Beaumont \. Boultbee, IBOO, Ves. 64. cited 12 Ves. G4. 6 Of Imjjerfections originally The nature of the former proceedings in the suit; and, in case the ^ e erne y. ^ object is to bring forward a ne^y party, calls upon him to answer the original bill. This bill being not an in- dependent document, but a sort of rider attached to another bill, and supplying the defects in it, is called a sitppleme)ital bill (e). Thus, in Goodwill v. Goodwin{f), after publication had passed, and the cause was set down, the plaintiff attempted to introduce the statement of a will, by amendment, into the original bill. But, at the hear- ing. Lord Hardwicke held that such amendment, after publication passed in the cause, was irregular; but ordered the cause to stand over, in order that the plaintiff might bring the will before the Court by sup- plemental bill. As long as the proceedings are in such a state as to admit of amendment of the original bill, that way of remedying an imperfection is obviously preferable to filing a supplemental bill, being both more simple and less expensive. As a general rule, therefore, it may be stated, with Lord Redesdale, that " wherever the same end may be obtained by amendment, the Court will not permit a supplemental bill to be filed {g)^ It is apprehended, however, that even if the plaintiff might, under the Fifteenth Order of 1828, above referred to, obtain leave to withdraw his replication and amend his original bill, yet he is not bound to ask leave to Amendment preferable to supplemental bill. (e) According to Lord Hard- wicke, \_vide 3 Atk. 217,] this title more properly belongs to another sort of bill, filed for bringing be- fore the Court matter which has arisen subsequently to the filing of the original bill, and which will be considered hereafter. The name has, however, become indiscrimi- nately applicable to both sorts of bills ; though, as some error has arisen from confounding the two together, it may be regretted that the species of bill under considera- tion is not distinguished by a dif- ferent title. It might, for instance, be termed a supplementary bill. (/) 1/46, 3 Atk. 370. {y) Ld. Red. ed. 4, p. 62. inherent in the Suit. 7 adopt this method of remedying his imperfection, but The nature of may file a supplemental bill at once, for that purpose, k^^^ Remedy.^ if he prefers it (A). It seems also that, if amendment is permitted out of its proper place, for one of the purposes for which we have seen it is permitted, this does not take from the plaintiff the right which he before had of having re- course to a supplemental bill for the same purpose. Thus, in Greenwood v. Atkinson (i), where at the hear- ing the defendant insisted that a party, by whom he was entitled to be reimbursed what he (the defendant) should have to pay to the plaintiff, was a necessary party to the suit ; and the cause was permitted to stand over with liberty to the plaintiff to add such new party by amendment, and to introduce averments shewing him to be a necessary party; the plaintiff, instead of amending, filed a supplemental bill for that purpose, and was held to be justified in so doing. It appears then that, before replication, a supple- In what stages mental bill for correcting an inherent error will not biKuuiT'^'^^^ lie ; and that the plaintiffs power of filing such a bill commences after replication ; subject however, even then, to certain conditions as to the relevancy of the new matter, the diligence of the plaintiff in bringing it forward, and the effects which it seems likely to have on the end and object of the suit. And having once commenced, the power seems to continue to the last period of the suit : thus the Court will frequently postpone the hearing of the original suit, in order to give an opportunity of filing such a bill ; and even after decree this method of supplying an omission in the oi-iginal bill may be resorted to, provided that the (h) Crompton v. Wombwell, (?) 1832, 5 Sim. 419. 1831, 4 Sim. 628. 8 Of Imperfections originally The nature of nature of the supplemental matter does not militate V ^^ ^'"^ ^'i against any of the conditions laid down hereafter {k). For what pur- Even vvlieie amendment is no longer possible, it is mental Bill ' ^' ^^^^ always that an imperfection inherent in the frame maybe filed, of a suit Can be remedied by supplemental bill. The period of the suit may be a proper one for such a remedy ; but still the supplemental matter may be improper to be brought forward, either on account of its nature, or from extrinsic circumstances. We will proceed then to consider the several purposes for which a supplemental bill, of the species in question, may be filed ; at the same time pointing out such cir- cumstances as have been held fatal to tlie adoption of that remedy. The supple- As a general rule, it may be laid down that it is mental matter ., , ,.,. „ , ii-iii. must have essential to the validity oi a supplemental bill, that been unknown ^jjg plaintiff should have been ignorant of the supple- at the fihng of ^ . *= ^ • o the original mental matter, whatever it maybe, at the time of ^'''' filing the original bill. Thus, where a plaintiff filed a bill for a partition of certain leasehold property, to which he and the de- fendant were entitled in undivided moieties, and the defendant, wlio had been in possession of the whole property, claimed a lien on it for certain improvements made by him, and the Court ordered an account of what had been expended in such improvements ; the plaintiff' filed a supplemental bill, charging tliat the defendant had received various sums of money, to a considerable amount, during the period of his occupa- tion, for rent ; and that he had wasted the pro])erty, Tlie bill prayed a further account in respect of such {k) A supplemental bill to cairy appeal by the defendant from the a decree into execution, and to add decree, iroodwardx. Woodaard, new parties, has been held to be 1799, Dick. 33. regularly filed, even pending an inherent in the Suit. 9 matters; but a denuirrer, for that the supplemental For what pur- matter must all liave arisen, and been known to the -'"^^^^'^"'^l^''-'' 1 • - 1- 1 p mental Bill piaintitr, before tlie time of filing the original bill, wars may be filed. allowed by the Court ; wlio observed, that " however ' just it might be that the account should be extended as pi-ayed, this could not be the proper course for obtaining such end. Tlie plaintiff should either have amended his l)ill on the defendants answer coming in, or at least he should have applied to the Court for leave to amend, or to file a supplemental bill, in an earlier stage of the proceeding. Parties could never be sure, in possessing a decree, if this practice were allowed in a case like the present, where there was nothing like surprise; — and there would be no end of supplemental bills (/)." A supplemental bill may be filed for the purpose of To correct an correcting an error in the statements of the original ^""^"r '° ^'^^ , .,, „„ *- . . 11 TT TA • 11 1 original state- buJ. 1 lius, n\ a case mentioned by Mr. Daniell {m), where meats. a bill was filed on behalf of a great number of j)lain- tifFs interested in nn annuity, to recover the arrears thereof; and after tlic cause was at issue, and wit- nesses had been examined, it was discovered that one of the plaintiffs in whose name the bill was exhibited, liad died before the hling of the bill, a supplemental bill was filed by the existing plaintiffs and the repre- sentative of the deceased plaintiff against the defen- dants, praying to have the same benefit of the pro- ceedings in the original suit, as they would have been entitled to had the plaintiff, who was dead, been alive when the bill was filed ; and the decree Mas made in both suits. J?o where a plaintiff, claiming under a lease, in a {I) Swany. Swan, 1819, 8 Price, (m) Del/osse\. Crawshaw, 1634, 518. Vide etium Mehrtcns v. 3 Dan. Ch. Pr. 15G. AndrcKH, 1839, 3 Beav. 72, 77. ]0 Of Imperfections originally For what pur- bill for speclfic performance of a covenant for renewal mental BiU^'^^' ^f the lease, by mistake set forth a supposed defect in may be filed, his title under the lease, and prayed that the lease ' might be declared valid ; and just as the bill was about to be dismissed with costs, it was discovered that the supposed defect did not exist ; it was held that evidence of the true state of the title might be re- ceived, although not in issue, and even contrary to the statements in the original bill, because there was no surprise on the defendant, who being the landlord, and having a counterpart of the lease, had the same means of knowledge of the plaintiff's title under it, as the plaintiff himself had. The bill, therefore, was not dismissed without prejudice to a new bill, but leave was given to file a supplemental bill to pray specific performance on the true title ; such relief being within the general prayer, and the Court having before it the whole instrument which contained the supposed de- fect, and on which the relief was grounded (w). And where, in a suit by certain legatees, the original bill stated, " that although all the other legacies had been duly paid, yet no part of the legacies to the plaintifl:s had been paid ;" and afterwards a new co- plaintift' was added by supplemental bill, referring to the above statement, and shewing, by way of supple- ment, " that, whether or not the legacies (other than the legacies given to the original plaintiffs) had been paid, yet the legacy given to the new co-plaintifl" had not been paid ;" and a demurrer was filed, for that the supplemental bill contradicted the original bill, and that, therefore, the new co-plaintiff was an improper party; Sir J. L. Knight Bruce, V. C, said, that he was not quite satisfied that the statement in the original bill, as quoted in the supplemental bill, did amount to (h) Sadler v. Lovatt, 1828, 1 Moll. 162. inherent in the Suit. 11 an allegation tliut all the legacies (excepting a certain For what pur- number, not including the new co-plaintiff's) had been poses a Supple- •ii'P'Tii 1 mental Bill paid ; but if it did, lie "was not aware that he was may be filed. opposing either principle or authority, if he held, in • the case of a legatees' bill, where the legacies affected real estate, and where the cause was directed to stand over to add as parties legatees who were absent from the record as it was originally constituted, that the plaintiffs were entitled by supplemental bill to correct an erroneous statement in the original bill, as to the mere satisfaction of debts (o). If, however, the correction of the error in the But the correc original bill is such as, if stated, would change the*^°"°^*^? . ..,.,, ® error must not issue raised by the original bill, and make a new case, change the it cannot, properly speaking, be called sujyplemental to ''"S>nal issue. the original bill, because it is, on the contrary, subver- sive of it. It would, therefore, in fact, be no addition to the original matter, although it might be an amend- ment of it. Its nature, therefore, is such as prevents its being brought forward by supplemental bill. Thus, where a bill was filed for specific performance of an agreement by the defendant to sell his interest in certain property, which agreement had been entered into by the agent of such defendant under the autho- rity of a certain letter alleged to have been written by the defendant to the agent, the defendant in his an- swer denied the agent's authority to enter into the agreement. After the cause was at issue the plain- tiffs discovered, and stated by supplemental bill, that the letter was not written by the defendant, but by his wife acting on his behalf; and prayed for a disco- very of certain other letters written by or in the name of the defendant, which they alleged would prove that the defendant had adopted the agreement. But (o) Strickland v. Strickland, 1842, 7 Jurist, 32. 12 Of Imperfections originally For what pur- poses a Supple- mental Bill niiiv be filed. To strengthen the original case. Sir Lancelot Shadwell, V, C, held, on demurrer, that as the object of the supplemental bill was " to change completely the issue raised by the original bill, — in- asmuch as in the original bill it was averred that the material letter was written by the defendant, and in the supplemental bill it was averred that the letter was «o^ written by him ; — therefore, it was strictly not supplemental, but one which sought to make a new and different case, and was in substance an amend- ment ; and that to permit it would be in fact to permit the plaintiffs to do indirectly what the new Orders intended should not be done except upon special leave." His Honor therefore allowed the de- murrer, but with liberty to the plaintiffs to make application, under the Fifteenth Order of 1828, to withdraw the replication and amend the original bill(p). But where the object of the supplemental bill was not to change the issue raised by the original bill, but on the contrary to add supplemental matter strengthening the case{q) made by the original bill, the same learned Judge held, on demurrer, that such new matter teas matter for a supplemental bill, and might be brought before the Court by that process. Thus, where the purchaser of an estate alleged to be tithe-free, discovered that it was subject to the payment of tithes, and filed a l)ill for compensation out of the ])urchase money ; and tlie cause was set down and publication enlarged ; and then the plain- tiff discovered that one of tlie vendors was actually a lessee of those tithes, and filed a supplemental bill stating that fact, in order to strengthen his claim to compensation ; Sir Lancelot Shadwell, V. C, held, on {p) Colcloiigh V. Evans, 1831, 4 Sim. 7(» ; vide etiam 10 Sim. 239. {(j) For a precedent of such a supplemental bill, see the Appendix, No. I. inherent in the Suit. 1*^ demurrer, that the new matter, as it tended to prove For what pur- , . ,, poses a Supple- the plaintifFs right to the reliet originally prayed, mental Bill was good matter for a supplemental bill (?•). may be filed. ^ The above cases of Colclough v. Evans and Cromj)- Leave of the ton V. Womhivell have been sometimes quoted as ^e^g^ry!''"^' shewing that new matter existing at the time of the original bill may be the subject of a supplemental bill, whether it seeks to change the issue raised by the original bill or not ; but that in the former case the leave of the Court must be obtained to file such a bill, and that in tlie latter case it need not(.s). It is submitted, however, that those cases do not warrant such a conclusion ; for the former of them merely decides that new matter seeking to change the issue is not matter of supplemental bill, but of amendment, and cannot be brought forward at all unless it can be brought forward by amendment ; and the latter merely decides that new matter not seeking to change the issue, but to strengthen the original case, may be matter for a supplemental bill. However, in The Attorne>/ General v. The Fish- mongers' Company {t), where a motion on notice " for liberty to read a certain will as evidence at the hearing of the cause, or else for liberty to amend the information, or to file a supplemental information, by introducing the said will, and otherwise touching the same as counsel might advise," had been refused by the Master of the Rolls as being too general, but with liberty to amend the notice of motion ; Lord Cotten- ham,C., on appeal, after confirming sucli refusal, said that " although the circumstances of the above cases (r) Crompton v. WombiveU, land, January, 1843, not yet re- 1831, 4 Sim. 628. ported. But His Honor appears to (*) Such were the arguments used have remained of the same opinion in Ranger v. The Great Weafern on the point, as that given above. Raihvay Company, \. C. of Eng- (0 1333, 4 Myl. & Cr. 1. 14 Of Imperfections originally For what pur- of Colclough V. Evcins and Crompton v. Wombwell mwiLlBm^^' were different, yet it might not be very easy, perhaps, may be filed, to see what line His Honor the Vice Chancellor in- tended to draw." His Lordship, however, did not on that occasion give any opinion as to whether leave was necessary to file the supplemental information or not, it being unnecessary to do so, as in either case the motion must be dismissed ; — if leave were necessary, as being still too general ; — and if leave were not ne- cessary, as being unnecessary to be made at all. To extend the We have seen that additional relief may be prayed prayer for bv amendment of the oris-inal bill, after replication, relief. . o ' i ' provided the case already made warrants such prayer for additional relief It appears that the same object may be obtained by supplemental bill. But, as has been already observed, the plaintiff must have been ignorant of his title to such additional relief when he filed his original bill, in order to be entitled to file the supplemental bill. Thus, where, after a decree against executors to ac- count, it was suspected from the answer of one exe- cutor that a balance was due from him to the testa- tor's estate in respect of a partnership between them, a supplemental bill was permitted for the pur- pose of going into the partnership accounts before the Master (m). Partnership It appears, however, that such accounts may be directed upon petition, the petitioner paying the costs of the petition, and making the inquiry at his own ex- pense. " And indeed," said Sir John Leach, V.C., "pro- perly speaking, the Masters ought to take partnership accounts under the general order to take accounts (.r)." (u) Cropper v. Knapman, 1837, amendment oftheoriginalbillimme- 2 Y. & Coll. 338. But fju(ere v:he- diately after the filing of the answer ? ther in this case the additional re- (.r) Woolley v. Gordon, 1829, liefought not to have been prayed by Taml. 11. accounts. inherent in the Suit. 15 And where it was merely necessary to inquire whether For what pur- the "executor was indebted to the testator, without jj^^'^^'^^ ^y^^- going into new accounts, this being the interrogatory may he filed. of the Master, and not of the party, was allowed to be exhibited without supplemental bill (?/). If, however, the plaintiff has not stated a case en- Plaintiff can- titling him to the additional relief under the pi'^'^jei" "„°* ^^'J^ JyJ'^" for general relief; although lie may file a supple- an additional mental bill stating the additional case, and praying [H^^il^^^' the additional relief, before the hearing of the cause, yet it appears that the Court will not, at the hearing, allow the cause to stand over to give him an opportu- nity of filing such supplemental bill. Thus, where a plaintiff, entitled to an annuity charged on lands with personal covenants, jirayed relief as a sjDecific incum- brancer only, and not as a general creditor also, and made no case of personal claim by his bill, that re- lief was refused at the hearing ; and liberty to amend or file a supplemental bill for the purpose of obtain- ing such relief, was also refused (c). It seems, however, that if the plaintiff has mentioned Unless the ad- the additional case, though by way of inducement only, hasTeen'^ar the Court will at the hearing allow the cause to stand ready alluded over for the purpose of bringing forward that addi- tional case in a substantive manner, and adding the parties which it renders necessary. Thus, where a bill, filed to set aside a lease for forgery, alluded by way of inducement to a fraud respecting the lease, committed by certain trustees not before the Court ; and, at the hearing, an issue was directed to try the forgery, and afterwards upon the cause coming on upon the equity reserved, the plaintiff abandoned the case of forgery, and tried to set up the case of fraud, the Court said {y) Simmons V. Gutter idge,\%OQ, (z) Field x. Delanev, 1828, 1 13Ves. 262. Moll. 174. Hi Of Imperfections originaliy For what pur- poses a Supple- mental Bill may be filed. Much less after decree. Nor can the l)laintiff, after decree, pro- secute a case already made but ne£;lected. that lie could not establish that case upon the original bill, but directed him to file a supplemental bill to bring forward the case of fraud in a proper manner, and to bring the trustees before the Court (a). If at tlie hearing a supplemental bill will not be allowed, for the purpose of making an additional case and praying additional relief, much less can it be per- mitted after a decree. Thus, where a bill was filed ao-ainst two surviving executors and the supposed re- presentative of a deceased executor, for 'the admini- stration of their testator's estate, impeaching certain accounts between the defendants and tlie deceased co- executor ; it was discovered at the hearing that the true representative of the deceased executor was not before the Court, and tlie remedy as against his estate was abandoned. The decree accordingly restricted the account to the accounts of the defendants, and directed the account settled with the deceased co-exe- cutor not to be disturbed. Afterwards the })laintiffs filed a supplemental bill, bringing the true representa- tive of the deceased co-executor before the Court, and prayed an account of tlie deceased co-executor's re- ceipts; but it was held that the supplemental bill was in fact an original bill against the true representative, and was irregular, as inaking a new case (b). Even where the plaintiff Iirs made out his case for additional relief, by his original bill, yet if he has neg- lected to prosecute that case, he cannot after decree file a supplemental bill for the purpose of prosecuting it. Thus, where a plaintiff had made a case by his bill for inquiry and account as to equitable waste, and had had an opportunity of supporting that case by evidence, but had omitted to do so; he was lield not (a) Jones v, Jones, 17-14, 3 Atk. 110, 217. {b) Wilson V. Todd, 1335, 1 Myl. & Cr. 42. inherent in the Suit. 17 entitled to an issue as to that equity, nor to raise tlie For what pur- question anew in a supplemental or other suit; al- ^°^^^ ? ?"','P'^" ^ i i ' mental Bill though the bill as to that equity had not been d is- may be filed. missed by the decree (c). " Although a supplemental bill of discovery may be For discovery. filed {d) whenever a discovery is necessary and cannot be obtained by amendment of the original bill, yet this rule will not apply to cases where the plaintiff miglit have sought the discovery by his original bill, but neglected to do so. Thus where a bill was filed against an infant who put in an insufficient answer, which on account of the infancy could not be excepted to ; and after he had attained his full age the plaintiff filed a supplemental bill interrogating as to the un- answered matters in the original bill, and also as to other matters, and prayed only a discovery j and it did not appear that he might not have interrogated in his original bill as to the new matter ; it was held that the supplemental bill might be sustained so far as re- garded the interrogatories in the original bill, but not as to the new interrogatories (e). A supplemental bill may be filed to perpetuate the To perpetuate testimony of witnesses on the ground of facts discovered testimony. since the filing of the original bill ; but it has been held that the supplemental bill must state what those facts are, or else it cannot be sustained ( f). In the above case, however, it was said that if new evidence as to facts stated in the 07'iginal hill, had been discovered after the commission to examine witnesses had been closed, the proper course would have been, not to have filed a supplemental bill, but to have made (c) Newdigate v. Nexvdigate, Ch. Rep. 142. 1834, 8 Bli. N. S. 734. (e) Knight v. Waterford, 1833, (rf) Usborne v. Baker, 1817, 2 9 Bli. N. S. 331. Madd. 379. And even after a de- (/) Knight v. Knight, 1819, 4 cree to account. Boeve v. Skip- Madd. 1. with, 1679, 1 E. Ca. Ab. 80 ; 2 18 Of Imperfections originally For what pur- an application to the Court for permission to examine SJeK"'" the new witnesses. may be filed. We have said that new parties may be added by To add parties ^^^ndment, after replication, provided the new aver- ments shewing the necessity of such new parties, do not affect the case already made against the other parties. If such new averments do affect the case al- ready made, and a replication has been filed, a sup- plemental bill may be filed for the purpose of making such new averments, and bringing such new parties before the Court {g). Thus in Semplev. Price (/«), where a bill was filed charging a surviving trustee with a breach of trust, the surviving trustee submitted, in his answer, that the personal representative of the deceased trustee was a necessary party. The plaintiff, however, did not amend her bill, but after the cause was at issue, and a commission had issued for the examination of witnesses, she filed a supplemental bill against the personal representative of the deceased trustee, stating that she had lately discovered that the breach of trust had been committed in the deceased trustee's lifetime, and praying that his estate might also be made re- sponsible for it; and a demurrer to such supplemental bill was overruled. And in Roberts v. Griffith (i), where a bill was filed against an administratrix, a widow, charging misap- plication of the estate, but not during her husband's life, and not charging his estate therewith, and after- wards the plaintiff discovered that part of the misap- plication was made during the coverture, he Was al- lowed to file a supplemental bill bringing the deceased husband's representatives before the Court. And on (^) For a precedent of such a (h) 1839, 10 Sim. 238. supplemental bill, see the Appendix, (i) 1842, 6 Jurist, 1077. No. II. inherent in the Suit. 19 an objection being taken, that it would be time enough For what pur- to file a supplemental bill after the Master had re- ^^^^^ BiU*^ ^' ported that the fact was as above alleged. Sir Lance- may be filed. lot Shad well, V. C, said that " it was better that the supplemental bill should be filed at once, than that a decree should be first taken in the original suit, and then there might be the necessity of having a supple- mental decree upon the second bill." So where a party who was out of the jurisdiction of the Court where the original bill was filed, and against whom process was not prayed by the original bill, has since returned within the jurisdiction, he may be added by supplemental bill (k). And where the Master has been directed to find who are the next of kin of a testator, they may be made parties by supple- mental bill, if their claim has not been raised on the record, and no one of them is in that character a party to the cause ; for if their claim has been raised, and one of them is a party, the others may be heard with- out being made parties (Z). And parties may be added by supplemental bill after decree, as well as before, for the purpose of carrying the decree into execu- tion (m). Where, however, the bill had been dismissed for want of prosecution as against a defendant, and at the hearing such defendant was held to be a necessary party, the Court would not allow the plaintiff" to bring him before the Court again by supplemental bill, but dismissed the bill with costs (w). If the plaintiff" purposely omit to bring before the Case of a plain- Court a necessary party to his suit, such party may, omitting^a^ ^ it appears, file a new bill against all the parties to the party. (*) Ld. Red. ed. 4, p. 165, 1719, Dick. 33. (0 Waitev. Temple, 1823, 1 S. {n) Lautourx. Holcomle, 1842, & S. 319. 11 Sim. 71. (m) Woodward \. Woodward, c2 20 Of Imperfections originally For what pur- poses a Supple- mental Bill may be filed. To make an infant co- plaintiff a defendant. former suit ; but this will not be a supplemental bill, although the Court may afterwards declare that it shall be regarded in that light. It will not, therefore, have the effect of making the new party a party to the former suit. Thus where a Mr. Primrose granted five seve- ral annuities to Smith, Brown, Waite, Pearson, and Brydges, respectively, and executed a creditors' deed to trustees, the trusts of which were unknown to Smith ; Brydges filed a bill against the trustees and all the annuitants except Smith, in which suit the priorities were declared and a receiver was appointed. Aftervrards Smith filed a bill praying that he might be declared first incumbrancer, and that the receiver might be restrained from making further payments to the defendants, and that if necessary his bill might be taken as a bill in the nature of a bill of review of, or of a bill supplemental to, the former cause. But it was held that an application by Smith for an injunc- tion against the receiver was irregular, because the re- ceiver had been appointed in a different cause from that in which the application was made ; and that the proper remedy was for the new party to ask leave, in the other suit, to enforce his legal remedies. And the Court would not on that occasion determine whether the second bill should be taken as supplemental to the first or not, it being premature to do so (o). A supplemental bill may be filed for the purpose of making an infant co-plaintiff a defendant, if upon his attaining his majority he repudiates the suit. In An- derson v. Wallis (p) such a bill was filed after a decree dismissing the original bill, but of which decree the remaining co-plaintiffs intended to apply for a re- hearino-. (o) Smith V. Effingham, 1839, 2 Beav. 232. (;;) 1842, 6 Jurist, 907. inherent in the Suit. 21 If a party to the original bill die before lie has For what pur- appeared to such bill, it is considered that there is, in posesaSupple- i^r ' _ _ _ ' mental Bill fact, no suit in Court as against him. The imperfec- may be filed. tion, therefore, arising from the want of such a party where a party is inherent in the suit, and must be remedied by a sup- dies before plemental bill filed against the representative of the thTorkinri ^ deceased party, in the same manner as it would have bill, been filed against the deceased party himself, if he had been inadvertently omitted to be made a party to the original bill, and were still alive {q). A supplemental bill may be filed for the purjjose of To give further enablino- the Court to oive directions which were not «|"'ections after o _ o _ decree, in aid prayed by the original bill, but which, after a decree of the decree. has been made, the result of the proceedings under that decree has rendered proper. Thus, in Dormer v. Fortescue (r), Lord Hardwicke, after saying that he. was of opinion that the original bill extended to every thing which was prayed by the plaintiff" in the supple- mental bill, added, — " But suppose the original bill to have been as defective as the defendant's counsel would have it, could any thing be more proper than to bring a supplemental bill to put this matter in issue, and to. supply the defects, if any, in the original bill? Sup- plemental bills are often brought even in aid of a de- cree of this Court, as in a decree to account, for want of full directions before ; and directions are given, under the supplemental bill, that the new matter should be connected with the former decree. If the plaintiff^s original bill had not prayed this general relief, it was very proper to bring a supplemental bill that he might have an entire relief; and I think that {g) VideAsbeey. Shipley, 1822, v. Bond, 1841, 6 Jurist, 49. For a held, that he need not make the original defendant a party to such supplemental bill, " because it was filed for the purpose of being heard with the original bill, and for the same relief as the original (i).'" In other words, the original defendant could not dispute the truth of the allegations in the supplemental bill, because he had himself insisted on them by his an- swer. In the above case of Greenwood v. Atkinson, Sir Lancelot Shadwell, V. C, is rejjorted to have said, — " Where a supplemental bill is filed for the purpose of putting in issue a new fact, or an old fact newly dis- covered, it is right to make the original defendants parties to it ; but where the case consists of facts which existed prior to the filing of the original bill, the defective party is to be brought before the Court by supplemental bill, alone." There is some little obscurity in this passage, for the expression " facts which existed prior to the filing of the original bill" would seem to include " old facts newly discovered." But it is presumed that, by the former of these expres- sions. His Honor intended facts which existed prior to the filing of the original bill, and have been already put in issue as to the original defendants, either by the bill, or, as in this case, by the defendant's answer. So where a bill was filed charging a surviving trustee with a breach of trust, who by his answer sub- mitted that the personal representative of his late co- trustee was a necessary party ; and after the cause was at issue, the plaintiff" filed a supplemental bill against such personal representative, stating that she had {i) Greenwoodv. Atkinson, l^iZi, Russell, 1838, 1 C. P. Cooper, 5 Sim. 419 . Vide etiam Lloyd v. 258. inherent in the Suit. 31 lately discovered that the breach of trust was com- Parties to the mitted in the deceased trustee's lifetime ; such sup- Supplemental plemental bill was filed against the personal represen- tative alone, without making the surviving trustee a party (k). So where a defendant died before he had appeared to the original bill, and his representative was brought before the Court by supplemental bill ; and an objec- tion was made that the original defendants were not made parties to it ; Sir Lancelot Shadwell, V.C, said, — " Inasmuch as the deceased party never had appeared, it was not necessary, for the purpose of making the suit perfect, to file a bill of revivor against his repre- sentatives ; the way to revive it, as against them, was by supplemental bill ; and as his death did not alter the interests of any of the other defendants, it was not necessary to make them defendants to it." Again ; — " If a supplemental bill be only for the purpose of bringing a party before the Court upon a given case, it is sufficient to make that individual alone a party, without making the other defendants parties thereto ; but if the supplemental bill be filed to bring new fads before the Court, then the old defendants to the record must also be made parties to the supplemental bill ; but here the representative was made a party in respect of the antecedent facts upon record." The objection therefore was overruled (l.) So where a vendor filed a bill against a purchaser for specific performance of a contract to purchase an estate, not having herself the power of conveying the estate, but having obtained the consent of those who had the power, who, however, were not parties to the suit; and at the hearing she was directed to bring (k) Semple v. Price, 1839, 10 {I) Clough v. Bond, 1841, 6 Sim. 238. Jurist, 49, 51. 32 Of Imperfections originally Parties to the tliose persons before the Court by supplemental bill ; ^upp emen a ^^ objection that the purchaser was not made a party ^ >■ ' to such supplemental bill appears to have been over- ruled, the usual reference to the Master as to title being directed notwithstanding {m). So where a mortgagee of a term of years filed a bill for an account, and for a foreclosure or sale of the mortgaged estate, and having omitted to make the executors of the trustee of the term parties to the original bill, brought them before the Court by a sup- plemental bill, an objection was made that the original defendant, the mortgagor, was not made a party to it. But Sir James Wigram,V. C, said, — " The practice [as to a party's appearing at the hearing and consenting to be bound by the decree] as I collect it from the decided cases, is, that if a person is named as a party to a bill, and has not appeared, or not even been served with a subpoena to appear, the Court will, with the plaintiff's consent, permit such party to appear at the hearing, and become a party to the decree by sub- mitting to be bound by it. But where the party who appears at the hearing, and offers to be bound by the decree, is not named as a party to the bill, the Court will not, unless with the consent of all the parties to the cause, permit him to become a party to the decree. * # * # * The question then is, whether the mort- gagor ought to have been made a party to the supple- mental bill. I do not mean to decide any general proposition with respect to the cases which require that the defendants to an original bill should be parties to a supplemental bill. If compelled, which I am not, to express an opinion u])on that point, I should rather incline to say, that the cases in which the parties to the original bill were necessary parties to a supplemental (m) Salisbury \. Hatcher, 1842, 6 Jurist, 1051. inherent in the Suit. 33 bill, were those in wlucli tlie interests of the original Parties to the defendants required that such new parties should be Supplemental before the Court, and that the cases in which the '• ^ ' parlies to the original bill were not necessary parties to the supplemental bill, were those in which the new parties are brought before the Court in respect of the interest of the plaintiff or of the new defendants. It is sufficient, however, in this case to say that the de- cision in Greenicood y. Atkinson (71), which, was come to after argument, was followed in 77ie Attorney Gene- ral V. Pearson{o), and in Scmple v. Price {])), and was not disapproved of by Lord Langdale in Feary v. Ste2)henson{q). Upon these cases I observe only that the practice which they establish cannot possibly work injustice in this case. The original and supplemental causes are heard together. The mortgagor has a right to insist that the decree shall provide for the recon- veyance of the estate upon payment of the mortgage money, and it is only for the purpose of such recon- veyance that the executors of the trustee are necessary parties to the cause. If the Court cannot by means of the original or supplemental bill make sucli a decree as the mortgagor is entitled to, the suit must fail ; but if the original and supplemental bill do enable the Court to make the decree to Mhich the mortgagor has a right, it is obvious that he has no I'eason to com- plain of the form of the record. In this case the exe- cutors of the trustee are brought before the Court, and arc Avillini)- to do all which the exigencies of the case mny require, and the ground of objection, except as a matter of form, does not exist (?')." Lastly, Lord Redesdale, upon the authority of Lord («) 1332,5 Sim. 411), andAT/;;^. {q) 1833, 1 Beav. 42, andjwoA^ (o) 1835, 7 Sim. 290. Chapter XI. Ip) 183W, 10 Sim. 233, and s«- (r) Dyson v. Morris, 1842, I pra. Hare, 413. D 34 Of Imperfections originally Parties to the Hardwicke, lays down the rule that where the object ism.^ ^""^^ ^ ^f *^^^ supplemental bill is merely to bring formal parties before the Court as defendants, the defendants to the original bill need not in any case be made de- fendants to the supplemental bill (s). " In a decree to account," says Lord Hardwicke, " if during the ac- count any formal party, as trustees, should be wanting, it is not necessary to make the original defendants parties to the supplemental bill ; nor, when the cause comes on to be reheard, can those defendants object for want of parties (0-" The case o^ Jones v. Iloicell(u), on the other hand, is an instance of the original defendants being con- sidered to be necessary parties to the supplemental bill. There the bill was filed by the executor of a deceased lady, who was alleged to be the sole next of kin of an intestate, against the personal representative of that intestate, in order to have the estate adminis- tered. A reference was made to the Master, on in- terlocutory order, to inquire who were the next of kin of the intestate at the time of his decease ; and the Master found that the plaintiff's testatrix, and one Jane M. were the next of kin : Jane, however, had died before the institution of the suit. It thus ap- peared that the personal representative of Jane ought to have been a party to the suit at the commencement; and accordingly the plaintiff filed a supplemental bill against a Mr. Godsall, who was that personal repre- sentative, making no other person a party to the bill. At the hearing, an objection was taken by the original defendant that he ought to have been made a defen- dant to the supplemental bill, and Sir James Wigram, V, C, allowed the objection. (s) Ld. Red. ed. 4, p. 76. (m) V. C. Wigram, Marcli 27, (0 3 Atk. 217. 1843. inherent in the Suit. 35 His Honor observed, that if a decree for an account Parties to the were made at tlie hearing, it would convert Godsall ^^^ ementa into a plaintiff as against the objecting defendant, and ^ / ' yet such defendant would have been precluded by the course of the suit from making any defence against Godsall's claim. Liberty might indeed be given at the hearing to make a defence, but then the original de- fendant would have the disadvantage of coming un- prepared to the hearing, knowing nothing of the sup- plemental bill, and not aware that any defence would be necessary, or that it would be requisite to ask for leave to make one. After referring to Dyson v. Morris, already cited, His Honor observed, that where the nevv- defendant is brought before the Court, only to contest a question with the plaintiff, the old defendants need not be parties ; and that the same was the case where the new defendant is brought in respect of a claim made by him, in which the other defendants are not concerned ; but that in other cases he thought that the old defendants ought to be made parties : — that the admission by the plaintiff that some oppor- tunity must be given to the representatives of the in- testate, to contest Jane's claims, went a great way in support of the objection. The case of Feary v. Stephenson {x) also supported it; but in the case of Dyson v. Morris (y) His Honor was able to give all the relief wanted without making the original de- fendants parties. The difficulties in these cases arose where the rights of co-defendants remained to be liti- gated ; for one decree in both suits would bind the re- presentatives unjustly. But then the case of Green- looodv. Atkinson{z) v??is cited as an authority to the (s) 1838, 1 Beav. 42, and post, supra, in this chapter. Ciiapter XI. (r) 1832, 5 Sim. 419, and supra, {y) 1842, 1 Hare, 413, and in this chapter. d2 3& Of Imperfections originally Parties to the Supplemental Bill. .Subpoena. contrary. Now each defendant had a right to state on the record his whole case against every other party; and Greenwood v. Atkinson did not oppose this doc- trine, whilst Feary v. Stephenson directly supported it : and if there was any difference between the pre- sent decision and tlie decision in Greenwood v. Atkin- son, it was not as to the principle, but as to the appli- cation of it. The objection, therefore, must be allowed, being an objection of substance, and not merely of form. Mr. Daniell, in his treatise on Chancery Practice, distino-uishes defendants into tliose havina; concurrent interests with the plaintiff, and those having adverse interests. Adopting this distinction, it would seem that, where a supplemental bill is filed against a new defendant having a concurrent interest witli the plain- tiff, as in the above case of Jones v. Howell, the old defendants who have adverse interests to the plaintiff ought to be made parties to the supplemental bill; and perhaps it equally follows, that where the new defendant is one having an adverse interest to the plaintiff, such of the old defendants, if there are any, as have concurrent interests with the plaintiff, ought to be parties to the supplemental bill. The subpoena taken out upon the supplemental bill is a subpoena to appear and answer ; and if the supple- mental bill calls for an answer to the original bill, the defendant must answer the original bill, although the subpoena taken out is a subpoena requiring an answer to the supplemental bill only(ft)- The form of the subpoena is given in the Appendix to the General Orders of 1833. It is sued out, and served, in the same manner as an ordinary subpoena, and if the de- fendant is a Peer, he is served with the usual letter (fl) Vigers v. Audley, 1838, 9 Sim. 408. inherent in the ^uit. 37 missive and an office copy of the stipplenientul bill ; Subpoena, and if tlie supplemental Lill requires him to answer ' the original bill, he must be further served with an office copy of the original bill, and if not so served, process for default of answer will be irregular (Z»). But if the defendant is not a Peer, he must procure an office copy of the supplemental bill, and of the original bill also if required to be answered, for himself. Service of subpoenas on the clerk in Court in the original cause, has been held not to be good service in the supplemental cause (c). The means of defence to a supplemental bill are Defence. the same as those to an original bill ; namely, de- ^^ ' — — ' murrers, pleas, and answers. There seems to be no other way of making an ob- Objection by jection to a su])])lemental bill. Thus m Boivyer y. ™°^'"" '^'■*^' Bright {d) a motion for taking a supplemental biil ' off tlie file for irregularity on the ground that it did not state supplemental matter, was refused, the Court observing that the proper course in such a case was to demur. It has also been said that an objection for want of parties (e), or that the supplemental matter is not newly discovered (/), cannot be made at the hearing, but must be taken by plea or demui-rer put in previously to the hearing. Pleas and demurrei's to supplemental bills are sub- pieas and ject to the same rules, both with regard to their form 'demurrers. and substance, and to the practice arising upon them, as pleas and demurrers to original bills. If a defendant to a supplemental bill neitlier de- Answer. {b) Vigersv. Audley, ubi supra. solicitors of the parties. (c) Bond V. Newcastle, 1791, (d) 1824, 13 Price, 31(i. 3 Bro. C. C. 386; and now see (e) Jones \. Jones, 1745, 3 Atk.. Orders III. and XVI. Oct. 1842; 217. by which the clerks in Court are (/) Llewellyn v. Mackwortlty, abolished, and their duties, in 1740, 2 Atk. 40. these respects, transferred to the 38 Of Imiierfeciions originally Defence. murs nor pleads to it, he must ansvser it, as in the case of an original bill. If, however, there is any matter in the supplemental bill which is properly the subject of demurrer or plea, the defendant may by his answer claim the same benefit of it as he would have been entitled to, if he had put it in by way of de- murrer or plea {g). The form of an answer to a supplemental bill, and the manner of putting it in and filing it, are the same as in the case of an answer to an original bill. Where a defendant to a supplemental bill is called upon to answer the original bill also, the usual prac- tice is to include the answer to the original bill and the answer to the supplemental bill in the same answer. The answer is then intituled as the answer to both bills {h). It appears, however, tliat the an- swers may be separated if the defendant prefers it {i). Process. The process for compelling appearance and answer to a supplemental bill is the same as that which is in use with respect to original bills ; and the same prac- tice obtains in regard to exceptions to answers. Where one of two defendants, having failed to put in his answer to the original bill, was attached and sent to jail, but was afterwards discharged, though not brought up under Sugden's Act, and no further proceedings were then had against him ; and after decree the plaintiffs filed a supplemental bill against him, to which he appeared but put in no answer, whereupon another attachment issued against him ; and ultimately the bill was taken pro confesso against him ; an objection that the cause had not been pro- perly brought to a hearing against him, the plaintiffs having proceeded against him on the supplemental Graham, 1831, 5 iff) 3 Dan. Ch. Pr. 184. (h) VUjers v. Audley, 1838, 9 Sim. 408. ((') Sayle Sim. 8. inherent in the Suit. 39 bill only, was overruled, the decree in the suppleraen- Defence. tal suit reciting that it had become impossible to go "^ ' on with the original decree {It). The supplemental cause may be either set down to Replication, be heard on bill and answer, or a replication may be filed, and a subpoena to rejoin served, as in the case of an original bill. When the supplemental bill introduces supplemen- tal matter, merely to sustain the relief sought by the same plaintiff from the same defendant as by the original bill, it has been said that there is only one record, one replication, and one cause to be set down ; so that if there has been no replication in the original suit, a general replication will apply to the whole record, and not merely to the original bill {I). From this case it must, it is presumed, be inferred that when the supplemental bill brings a new party before the Court, before a replication has been filed in the original suit, such replication will not extend to the supplemental suit. If the new matter in the supplemental bill is not Evidence, admitted by the defendant's answer, it must be proved, otherwise the supplemental bill will be dismissed with costs. This proof must be obtained by the examina- tion of witnesses, as in the case of an original bill. If publication has not passed in the original suit, Interrogato- then if no witnesses have been examined on interro- ^''^^" gatories exhibited in the original cause, interrogato- ries may be exhibited and witnesses examined as to the matters in issue in the original suit, and also those in issue in the supplemental suit, at the same time (?«). If witnesses have been already partly examined on interrogatories exhibited in the original suit, the (k) HugJison v, Cookson, 1839, Madd. 427. 3 Y. & Coll. E. E. 579. (>h) 3 Dan. Ch. Pr. 186. (0 Catton V. Carlisle, 1820, 5 40 Of Imperfections originally Evidence. Coui't will Oil motion give leave to add to those inter- rogatories; but such new interrogatories must con- tain nothing but what relates to the supplemental suit in). If publication has passed in the original suit, sepa- rate interrogatories must be exhibited in the supple- mental suit, which must be strictly confined to the new matter and not extend to matters in issue in the original suit ; and if any witnesses are examined as to such matters, their depositions cannot be read at the hearing (o). If interrog-atories have been exhibited and evidence taken in the original suit, before the filing of the sup- plemental bill, such evidence may be made use of in both suits (although of course not intituled in both suits), because a supplemental suit is merely a con- tinuation of the original suit. Thus in Giles v. Giles (p), depositions taken in the oi'iginal suit were allowed to be read at the hearing of both causes. But it is appre- liended that the evidence taken in the original suit will be good as against the parties to the original suit only, and not as against any new party who may be brought before the Court by the supplemental bill. If the interrogatories are exhibited after the filing of the supplemental bill, they must be intituled in both suits. In this case, however, if interrogatories are exhibited by any of the original defendants who are no parties to the supplemental bill, they may in- titule them in the original cause only ; but if they have joined with the new defendant in the commission to examine witnesses, or if they have consented to the order for such commission, the interrogatories and de- positions must be intituled in both suits, following the (w) 3 Dan. Ch, Pr. 186. fntrne v.Hussei/, 1/92, 2 Ridg. P. (o) Bagnall v. Bagnall, 1725, C. ."104 ; Forum Rom. 109. 12 Vin. Ab. 114, pi. 9; Cock- (p) 18;'.6, 1 Keen, 085. inherent in the Suit. 41 title of the commission, or the depositions v.ill be Evidence, suppressed i/j). "^ " If, before tlie filing of the supplemental bill, the Whether the original bill has proceeded beyond bill and answer, so "sTound b'^-The that witnesses have been examined, orders made on former pro- motion, or a decree made at the hearing, it is appro- "^ ^"^^' hended that any new defendant who may be brought forward by the supplemental bill, is in no wise bound by such proceedings, having had no opportunity of canvassing them ; but that they must all be repeated against such new defendant, unless he will consent to be bound by them. Thus where certain mortgage and judgment creditors filed a bill for payment of their debts out of the estates of their deceased debtor, which he had devised to his son for life, with remainder to his son's children in tail, and after a decree for an account, and an order on further directions, the plain- tiffs discovered that a tenant in tail had been born before the filing of the original bill, and filed a sup- plemental bill against him ; it was held that the infant was not bound by the accounts taken, but that they must be taken over again. Liberty, however, was given to the Master, in this case, to adopt any of the former accounts, if he should judge them to be beneficial to the infant (r). If there has been no decree in the original suit before the filing of the supplemental bill, botli suits will be heard together, and there will be one decree made in both suits (.s) ; but if there has been a decree in the original suit before the filing of the supplemental bill, then a new decree must be made in the supplemental suit ; for which purpose the supplemental suit must be set down alone ; or if there has been a decree in {q) Pritchard v. Foulkes, 1S39, Sim. 167. 2 Beav. 133. (*) Ld. Red. ed. 1, p. 75. (r) Baillie v. Jackson, 1830, 10 42 Of Impel' fections originally inherent in the Suit. Hearing tlie Original suit, which is not final, it may be set down ^an ecree. ^ ^^ j^^ heard with the original suit on further direc- tions (t). When the supplemental suit is to he heard with the original suit, the Court will, on application, order the former to be advanced (z<). (0 Ld. Red. ed. 4, p. 75 ; and 00 Seton, 386. Seton, 38G. 43 CHAPTER III. OF THE REVERSAL OF DECREES ON SUPPLEMENTAL MATTER. The reversal of a decree on the statement of supple- Nature of mental matter omitted in the original hill, although ^the Remedy. properly included in that part of our subject which treats of imperfections originally inherent in the frame of a suit, yet being subject to certain conditions not imposed in respect of other objects for which the sort of bill we are now discussing may be filed, will be considered with more convenience in a separate chapter. It may happen that after a decree has been pro- nounced in a cause, a party aggrieved by the decree may discover new matter of such a nature as would in his opinion have materially influenced the decree, if it had been brought before the Court in due time. The decree may be right with reference to the matter before the Court, so as to preclude ajjpeal, and yet it may be unjust, because founded on false or incomplete pre- mises. When this is the case the rules of the Court furnish means of bringing the new matter before it, and of obtaining an examination and reversal or cor- rection of the decree, if proper. If the party aggrieved by the decree is i\\Q lilaintiff, the omission of the supplemental matter in the original bill may properly be ranked among those 5])ecies of imperfection which are originally inherent in the suit ; 44 Of the Reversal of Decrees Nature of but if the party aggrieved is a defendant, the omission t g emecy.^ ^^ ^1^^ supplemental matter in his answer can hardly be termed an imperfection originally inherent in the suit. As, however, the i-emedy for such omission is the same whether made use of by ])laintiff" or defen- dant, the doctrine, in either case, respecting the rever- sal of decrees on discovery of new matter, may very propei-ly be considered in the present treatise. Bill of review. If the decree has been signed and enrolled, whereby it has become a record of the Court, (which practice, however, has nearly fallen into disuse), the party wish- ing to reverse it attains his object by filing a new bill, called a bill of review (a) ; and, as this bill prays that the decree may be reviewed and reversed, and is heard independently, as it were, of the original bill, it is usually ranked among original bills, and is therefore foreign to the subject of this treatise. But if the decree has not been signed and enrolled, it may be Rehearing and altejed or reversed upon ^rehearing of the cause; and bilHirnature ^" ^^"^ ^^^^ ^ supplemental bill must be filed to bring of a bill of forward the new matter and make the original cause perfect. Such a supplemental bill is called a supple- mental bill in the nature of a bill of review. Leave of the Before M^e consider the form of the supplemental Court. IjJII^ j|. ]^j^,g^ J3Q premised that such a bill cannot, any more than a bill of review, be filed without the leave of the Court (b) ; and this leave is to be obtained by a petition presented for that purpose, and will not be Affidavit. granted without an affidavit that the new matter could not be produced or used by the party claiming the benefit of it, in the original cause. The afiidavit (a) Siandish v. Rudlcy, 1741, view ; Carrinyton v. Holly, 1755, 2 Atk. 178. A defendant may, if cited Dick. 612. he pleases, enrol a decree, in order {b) Order, Oct. 17, 1741, 2 Atk. to enable him to bring a bill of re- 139. on Supplemental Matter. 45 must also state the new matter intended to be brought Nature of forward, in order that tlie Court may exercise its >. ^ ^"°^ ^'y judgment upon its relevancy and materiality (c). In Hyde v. Donne (d), it is said that a petition for a rehearing, or for leave to file a bill of review, is bad for uncertainty. But in Partridge v. Ushorne (e), where the prayer of the petition was for leave to file a bill of review, or a supplemental bill in the nature of a bill of review, as the petitioner should be advised, the order was made according* to the prayer. It is apprehended, however, that the more correct way would be to state, in the petition, whether the decree has been enrolled or not, and to sav positively which sort of bill it is wished to file. If the bill is filed without the leave of the Court, the proper course is to move that it may be taken off the file for irregularity (/). The leave of the Court having been obtained, the person wishing to correct the decree must present the usual petition for a rehearing of the cause {y) : and on this petition being answered, he must file the sup- plemental bill in the nature of a bill of review for the purpose of bringing the new matter before the Court, and supplying the defect which occasioned the wrong- decree in the former suit (h). The prayer that the Respective decree may be reviewed and reversed is made by the petition and ^ petition of reheariuti- and the sunnlementnl bill in supplemental bill. (c) Ld. Red. ed. 4, p. 84. For precedents of the petition, affi- davit, and order, seetiie Appendix, Nos. IV. V. and VI. Tliere must also be a deposit, which, with tlie deposit upon obtaining a rehearing of the decree, shall make up 50/. Order, Oct. 17, 1741 ; 2 Atk. 139 ; Ano7i. 1725, 2 P. W. 283 ; LouMer V. Cross, 17.-)3, Dick. 223. id) 17:^5, 2 Anst. 551. (e) 1828,5 Russ. 195; Reg. Lib. 1827, B. fol. 2249. (/) Hodson V. Ball, 1S42, 1 Pliill. 177, affirming S. C. 1841, 11 Sim. 45G. (g) Moore \. Moore, 1755, 2 Ves. sen. 598. (A) Lleirellyn v. Mackivorth, 1740, 2 Atk. 40 ; Standinh v. Rad- leij, 1741, 2 Atk. 177. 46 Of the Reversal of Decrees Nature of nature of a bill of review merely prays that the cause t ^ ^°°^ y-^ j^ay |3e heard with respect to the new matter at the same time as it is reheard upon the original bill, and that the plaintiff may have such relief as the nature of the case made by the supplemental bill requires (^), It is not stated, in any of the cases, or in any of the books of practice, whether the petition for rehearing- is to be presented before or after the filing of the sup- plemental bill : but from the nature of the respective prayers of the petition and supplemental bill, it is apprehended that the petition of rehearing must be presented {i. e. left with the secretary) and answered, before the filing of the supplemental bill in the na- ture of a bill of review (It). Although, as we have seen, bills of review on dis- covery of new matter are not properly within the limits of this treatise, yet as the rules and principles applicable to those bills are for the most part equally applicable to supplemental bills in nature of bills of review, we shall in the course of this chapter have occasion to notice much of the practice respecting the former sort of bill, as well as that which is peculiar to the latter sort. It appears that a bill of review cannot be filed by the assignee or devisee of any party to the suit, for want of privity (Z) ; nor can it be filed by a party in whose favour the decree was pronounced (m) ; nor if the decree was taken by consent {n) ; nor will it lie (0 Ld. Red, ed. 4, p. 92; Jfoore {I) Tirrel \. Moreton, 1669, V. Moore, 1755, 2 Ves. sen. 596; 1 C. C. 123 ; Hartwell v. Towns- Dick. 66 ; Perry v. Phelips, 1809, end, 1768, 2 Bro. P. C, 107. 17 Ves. 177. (w) Glover v. Portingion,\664, (k) For precedents of the peti- Freem. 182 ; sed contra, S. C. 1 tion for rehearing, and the supple- C. C. 53 ; and Vendebende v. Le- mental bill in the nature of a bill vingston, 1674, 3 Swanst. fi25, of review, see the Appendix, Nos. (m) Webb v. Webb, 1676, 3 VII. and VIII. Swanst. 658. on Supplemental Matter. 47 against persons who were not parties to the original Nature of bill («). ^the Remedy. ^ The new matter must he relevant ; for its being new Conditions matter merely will not warrant a bill of review (o). ^ "f the Bill. ^ It must also be material, and such as, if unanswered, Tlie new matter would clearly entitle the party bringing it to a decree i^^e^yant and in his favour ; or at least raise a question of such material. nicety and difficulty as to be a fit subject of judgment in a cause. Therefore where a purchaser filed a bill for specific performance of a contract for sale, which was dismissed, and afterwards discovered certain deeds made between the vendor and a third party, treating the contract as valid ; it was held that this new matter did not warrant the purchaser in filing a supplemental bill in the nature of a bill of review (^9). Where the House of Lords, on appeal, reversed a decree in the Court below, and an application to the House of Lords for leave to file a supplemental bill in nature of a bill of review was remitted to the Court below, because it had been made to the Lords origi- nally, and not on appeal. Lord Chancellor Manners said, " I must be satisfied that the new facts sought to be put in issue are such as will materially aftect the grounds upon which the Lords' order was made. Even if I gave permission to file this bill, still, if brought to a hearing, I could not give relief on it. As I do not know the grounds on which the House of Lords decided, I do not see how the fact sought to be put in issue could be brought under Lord Hardwicke's rule in 1 Ves. sen. {q). I shall therefore refuse the application, and, upon the plaintiff"s appeal, if the (n) Carlisle V. Glole, 1659, 3 (p) Orrfv. JVoe;, 1821, 6 Madd. C. Rep. U ; Nels. 52 ; Freem. 148. 127. (o) Bennet x. Lee, 1742, 2 Atk. (q) Vide Portsmouth v. Effing- 529. ham, 1750, 1 Ves. sen. 430. 48 Of the Reversal of Decrees Conditions House of Loi'ds decides in his favour, the materiality , of the Bill. ^ ^f ^1^^ j^g^yjy discovered facts will be established (r)." Whether the 1'he cases seeiii to be contradictory as to whether new matter the new matter introduced into the bills in question may change the , , , • ^ ^ • i. t^ issue or not. «ia,y be such as constitutes a new issue, or not. l^rom some cases it would appear that the new matter must constitute a new issue. From others it would appear that the new matter may either constitute a new issue, or be further evidence of matter already in issue. Whilst others again seem to shew that the new matter can only be further evidence of matter already in issue, and must not constitute a new issue. In Lord Bacon's first Ordinance (5) it is said "that there may be a review upon new matter which hath arisen in time after the decree, and not any new proof which might have been used when the decree was made; nevertheless, upon new proof that has come to light after the decree made, and could not possi- bly have been used at the time when the decree passed, a bill of review may be grounded." In an anonymous case in Freeman's Reports (0 it is said, that " where a matter of fact was particularly in issue before the former hearing, though you have new -proof of that matter, upon that you sliall never have a bill of review. But where a new fact is alleged, that was not at the former hearing, there it may be ground for a bill of review." In The Attorney Gen. v. Turner (ii) written evidence was allowed to be brought forward by bill of review to contradict the testimony of a witness in the suit. In Norris v. Le Neve{x) Lord Hardwicke says, "The present application is for leave to bring in a bill in the nature of a bill of review ; and this is said (r) Blake v. Foster, 1824, 2 (0 1677, Freem. 31. Moll. ."^57. {u) 1742, Amb. 587. (.s) Beames's Orders, p. 1. {x) 1743, 3 Atk. 34. on Supplemental Matter. 49 to be founded upon new matter, not at all in issue in the Conditions former cause, or upon matter which was in issue, but i ° ! ' ' ^ discovered since the hearing of the cause. Upon these rules I do allow that bills of review have been granted ; for though it has been said that these were varied by the orders that were made in the cause of Montgomery V, Clark (y), yet I see no alteration, and, therefore, the rules I shall judge by in the present case must be the ancient ones. Lord Bacon's rules have never been de- parted from since the making of them. By the esta- blished practice of the Court there are two sorts of bills of review ; one founded on supposed error ap- pearing in the decree itself, the other on new matter, which must arise after the decree, or upon new proof which could not have been used at the time of the de- cree passed." In Paterson v. Slaughter {z). Lord Hardwicke says, "All the bills of review I recollect to have known, were of new matter to prove what was put in issue. Lord Effingham's case («) was so. He claimed under an old entail ; and though he afterwards made title under a different entail, yet the issue was as claiming under some old entail generally. In the present case it is not new matter to prove what was put in issue, but to prove a title that was not in issue ; and, therefore, the de- fendant would not be entitled to a bill of review." In Yomig v. Keighly (b), Lord Eldon says, "The ground of a bill of review is error apparent on the face of the decree, or new evidence of a fact mate- rially pressing upon the decree, and discovered at least after publication in the cause. If the fact had been known before publication, though some contra- {y) 1742, 2 Atk. 379. But ap- (a) 1750, 1 Ves. sen. 430. parently not reported as to the (ft) 1809, K! Ves. 348, 350 ; and point now in discussion. see WUlan v. Willan, 1809, ib. 72. {z) 1755, Arab. 292. E 50 Of the Reversal of Decrees Conditions dictioii appears in the cases, there is no authority that of the Bill. ^ j^g^ evidence would not be sufficient ground." Again : " As far as I can ascertain what the Court permits with regard to bills of review on facts newly dis- covered, the decision appears to have been on new evidence which, if produced in time, would have sup- ported the original case; and this is not applicable where the original case does not admit the introduc- tion of the evidence, as not being put in issue origi- nally." The same opinion was also expressed by Lord Manners in the case of Blake v. Foster (c). But from Partridge v. Ushorne{d) it appears, tliat matter discovered after the decree, though not capable of being used as evidence of any thing which was previously in issue in the cause, but constituting an entirely new issue, may be the subject of a supple- mental bill in the nature of a bill of review. In that case a purchaser, a defendant in a suit for specific per- formance of a contract for sale of an estate, by his answer insisted merely that a good title to the pro- perty could not be shewn ; but did not mention any warranty given, or representations made, by the ven- dor; and on the Master reporting in favour of the title, a decree for specific performance was made. After the order for the reference the defendant found that the timber on the estate had been falsely esti- mated in a statement which he alleged had been war- ranted at the sale, but which warranty was denied by the other side ; and leave was given to the defendant to file a supplemental bill in the nature of a bill of review, to have the same benefit of the alleged war- ranty as if he had insisted on it in his answer. In Gilbert's Forum Romanum it is said that "in bills of review they can examine to nothing that was (c) 1814, 2 B. & B.457. {d) 1828, 5 Russ. 195. on Supplemental Matter. 51 in the original cause, unless it be matter happening Conditions subsequent, which was not before in issue, or upon v. matter of record or writing not known before ; for if the Court shoukl give them leave to enter into proofs upon the same points that were in issue, that would be under the same mischief as the examination of wit- nesses after publication, and an inlet into manifest perjury (e)." Lastly, the opinion of Lord Redesdale seems to be, that a bill of review will lie in either case, whether the new matter constitutes a new issue, or is merely further evidence of matter already in issue. " It has been questioned," says His Lordship (/), " whether the discovery of new matter not in issue in the cause in which a decree has been made, could be the ground of a bill of review ; and whether the new matter on which bills of review have been founded, has not always been new matter to be used as evidence to prove matter in issue, in some manner, in the original bill. A case, indeed, can rarely happen in which new matter discovered would not be, in some degree, evi- dence of matter in issue in the original cause, if the pleadings were properly framed. Thus, if after a de- cree founded on a revocable deed, a deed of revoca- tion and new limitations were discovered, as it would be a necessary allegation of title under the revocable deed that it had not been revoked, the question of revocation would have been in issue in the original cause, if the pleadings had been properly framed. So if after a decree founded on a supposed title of a person claiming as heir, a settlement or will were dis- covered which destroyed or qualified that title, it would be a necessary allegation of the title of the person claiming as heir, that the ancestor died (e) For. Rom. p. 186. (/) Ld. Red. ed. 4, p. 85. E 2 of the Bill. 62 Of the Reversal of Decrees Conditions seised ill fee sini])le and intestate. But if a case t "f tfae Bill. ^ ^^,g,.g i^Q arise in which the new matter discovered could not be evidence of any matter in issue in the original cause, and yet clearly demonstrated error in the decree, it should seem that it might be used as 2'round for a bill of review, if relief could not other- wise be obtained. It is scarcely possible, however, that such a case should arise, which might not be deemed, in some degree, a case of fraud, and the de- cree impeachable on that ground. In the case where the doubt before mentioned appears to have been stated, the new matter discovered and alleged as ground for a bill of review was a purchase for valuable consideration without notice of the plaintiffs title. This could only be used as a defence ; and it seems to have been thought, that although it might have been proper under the circumstances, if the new mat- ter had been discovered before the decree, to have allowed the defendant to amend his answer and put it in issue, yet it could not be made the subject of a bill of review, because it created no title para- mount to the title of the plaintiff, but merely a ground to induce a Court of Equity not to interfere. And where a settlement had been made on a marriage in pursuance of articles, and the settlement, following the words of the articles, had made the husband tenant for life, with remainder to the heirs male of his body, and the husband, claiming as tenant in tail under the settlement, had levied a fine and devised to trustees, principally for the benefit of his son, and the trus- tees had obtained a decree to carry the trusts of the will into execution against the son, the son after- M'ards, on discovery of the articles, brought a bill to have the settlement rectified according to the articles, and a decree was made accordingly. In this case the on Supplemental Matter. 53 new matter does not a])pear to have been evidence of Conditions matter in issue in tlie first canse, but created a title y ' , adverse to tliaton whicli the first decree was made (^)." In the next place, the new matter must have first The new matter come to the knowledge of the party after tlie time 3c'no^wrbe!^" when it could have been used in the cause at the fpre publica- original hearing. Lord Bacon's Ordinance says, after the decree ; "but," says Mr. Justice Story (A), " that seems corrected by the subsequent words, and could not possibly have been used at the time when the decree passed ; which words })oint to the period of the publi- cation of the testimony. And accordingly it is now the establislied exposition of the Ordinance tliat the new matter shall not have been discovered until after publication has passed (i)." It must also be shewn that due diligence was used Due diligence, in seeking for the new means of defence, at the time when it might have been used as a defence (^). "Upon a supplemental bill in nature of a bill of review," says Lord Eldon (/), " the question always is, not what the plaintiff knew, but what, by using reasonable diligence, he might have known." Thus, where a vicar brought a bill for tithes, and the defendant insisted on non- payment of tithes for wool and lambs, and a decree was nevertheless made for an account of small tithes, including those articles, and the defendant appealed, and afterwards presented a petition representing that the tithe of wool and lambs was of right payable to the impropriate rector, and was covered by an {y) Roberts V. Kingsly, 1749, 1 knowledge of the party after pub- Ves. sen. 238. lication passed. Amb. 293 ; 3 Atk. {h) Eq. PI. 327. 34 ; vide etiam Ord v. Noel, 1821, {i) Lord Hardwicke is reported 6 Madd. 127. to have said that the words of Lord {k) Bar ring tons. O'Brien, 1812 Bacon were dark ; but that the con- 2 Ball & B. 142. struction has been that the new {I) Young v. Keighly, 1810, IG matter must have come to the Ves. 353. 54 Of the Reversal of Decrees Conditions of the BiU. Confession after decree. Decree ob- tained by fraud. ancient composition, and that the evidence of these tithes belonging to the rectory consisted of a grant from the Crown under James the First, and of certain records in the Augmentation OiRce, only recently known to the defendant, and praying leave to file a supplemental bill in the nature of a bill of review to introduce the new^ evidence at the hearing of the appeal, Lord Eldon said, " If circumstances of this kind are to form grounds of bills of review, these applications will be constant and eternal. If the Aug- mentation Office had been searched at first, there would have been a proper defence. If it is to be laid down that a party may go on to a decree without looking for a defence, and may then make applications of this kind, there will never be an end to them. It is not a case of a search made, and a miscarriage in that search, but it does not appear that there was any search at all {m)y So leave was refused where the evidence since discovered, consisted of a deed and of proceedings in a suit, to which the defendant, the applicant, had been a party {n). It has been said that a confession by the plaintiff after decree, will not warrant a bill of review by the defendant (o). It has also been said that, if the new matter to be brought forward by the aggrieved party was known to the opposite party at the time of the decree, then, in order to warrant a bill of review, the new matter must be such as the party knowing it was not in conscience obliged to discover to the Court. For if it is such as he ouo;ht in conscience to have discovered to (m) Bingham v. Daivson, 1821, Macartney, 1719, 2 Bro. P. C. 67. Jacob, 2415. (o) Curtis v. Smallridge, 1663, (n) Blake v. Foster, 1814, 2 Ball Freem. 178 ; 1 C. C. 43 ; IE. Ca. & B. 457; vide etiam Ludlow \. Ab. 377. on Supplemental Matter. 55 the Court, then the decree has been obtained by fraud, Conditions and ought to be set aside by original h\\\{p). v ° t ^ ' ' By the third of Lord Bacon's Ordinances it is de- Tiie decree Glared that " no bill of review, or any other new bill, pgrfor^gj®*^ shall be admitted to change matter decreed, except the decree be first obeyed and performed ; as if it be for land, that the possession is yielded ; if it be for money, that the money be paid {q) ; if it be for evi- dences, that the evidences be brought in ; and so in other cases which stand upon the strength of the decree alone (r)." But by the fourth Ordinance it is Exceptions, declared that " if any act be decreed to be done which extinguisheth the party's right at common law, as making of assurance or release, acknowledging satis- faction, cancelling of bonds or evidences, and the like, those points of the decree are to be spared until the bill of review be determined, but such sparing is to be warranted by public order made in Court (s)." So, also, a party may obtain leave to file a supple- mental bill in the nature of a bill of review, and may file the bill, even though he has not performed the decree in the original suit, if the proceedings under the decree are not at the time in such a state as to enable the adverse party to bring- him into default for not having performed the decree. Thus in Partridge V. Usborneit) above referred to, it was held, that after the defendant had obtained leave to file his supple- mental bill in the nature of a bill of review, he had a (;;) Manaion v. Molesworth, v. iVM/w/i, 1682, 1 Vern, 117. And 1757, 1 Eden, 18. so where the defendant gave good ((/) Vide Bp. of Durham v. security for payment, Savil v. Liddell, 1717, 2 Bro. P. C. G3. Darcy, 1662, 1 C, C. 42; Freem. Even this seems to have been dis- 172 ; 1 E. Ca. Ab. 82, pensed with, where it appeared {r) Beames's Orders, 3 ; Fitton that the party was unable to pay v. Macclesfield, 1684, Freem. 88; the money, Fitton v. Macclesfield, Anon. 1699, 12 Mod. 343. 1684, 1 Vern. 264 ; Freem. 88 ; or («) Beames's Orders, 4. to perform the decree, Williams (/) 1828, 5 Russ. 195. 56 Of the Reversal of Decrees Conditions right to file it Avithout having previously paid the pur- . "^ ^^^ ' , chase money which the decree commanded him to pay, because the time had not arrived at which the adverse party, in due execution of the decree, could compel payment. It appears, however, that as soon as that time arrives, he will not be allowed to 'proceed with his bill until he pays the purchase money to the vendor ; and that such payment will not be dispensed with, nor will payment into Court be allowed in substitution, even though the sum be very large (m). Party who lias Sometimes a party who has not joined in the peti- not joined in ^.j^j^ f^j. rehearing, may have the benefit of it. Thus the petition ^ p i may sometimes in Hill V. Chapman (a;), after a decree had been made b^^^fi\^^ establishing a will, a legatee coming into esse after the death of the testator, joined himself to the suit by a supplemental suit ; and on a rehearing, on the petition of the other parties, in order to rectify an error in the decree, the new party was allowed to raise an objection to the decree. Decree must be A decree must be impeached in the same Court as impeached in ^i^^t in whicli it was pronounced, and not by an ori- the Court in .,,.,,. , A ,.,-, ^ - -^ , which it was gmal bill m another Court. Ihus where, m a suit by made. executors in the Court of Exchequer, an account was taken under a decree, and the next of kin and heir at law filed an original bill in Chancery impeaching the account on discovery of new evidence, shewing that assets to a greater amount than they had stated had come to the executors' hands before the suit, and also further assets since the suit ; it was held that the ori- ginal bill was irregular, and that the object of the ori- ginal bill ought to have been sought by a review, in the Courtof Exchequer, of the decree pronounced there (3/). (m) Ibid. {y) Solan v. Nevill, 1826, 2 (x) 1791, 1 Ves. jun. 405. Moll. 494. on Supplemental Matter. 57 " There is another important qualification," says Cdnditions Mr. Justice Story (^), " which is indeed deducible v^ from the very laneuati-e of Lord Bacon's Ordinance; Leave to bring . . the bill is dis- and that is, that the granting of such a bill of review cretionary. for newly discovered evidence is not a matter of right, but j'ests in the sound discretion of the Court. It may, therefore, be refused, although the facts, if ad- mitted, would change the decree, where the Court, looking to all the circumstances, shall deem it pro- ductive of mischief to innocent parties, or for any other cause unadvisable (a)." A bill of review ui)on newly discovered matter has Bill of review been permitted even after an affirmation of the decree tion'^o^f decrVe in the House of Lords. Thus where a decree had in the House been made dismissing a bill, and that dismissal had been affirmed by the House of Lords on appeal, and afterwards a bill of i-eview was brought for discovery of a deed said to have been burnt pending tlie appeal, which made out the plaintiff's title ; and the bill was filed in order that after such discovery the plaintiff might apply to the House of Lords for relief, the de- fendant on demurrer was ordered to answer (Z>). And Review of a a bill of review may be brought after one bill of ^a • review already filed, as if upon a bill of review a decree has been reversed, another bill of I'eview may be brought upon the decree of reversal (c). But if a demurrer has been allowed to a bill of review, a new bill of revievv^ upon the same ground will not be allowed (d). As to the time within which these bills must be Limitation of filed, we leai-n that a bill of review for error o/'p«?'e'?i^ in). As to the parties, it appears that all the parties to the original bill ought to be made parties to the bill of review ; "for it is a principle of natural justice that no one ought to be affected by any decree without his first being heard (^)." The rules as to the defence and evidence in the sup- plemental suit will, in general, be the same as those already given with respect to the bills considered in the second chapter of this treatise ; and the supple- mental suit will be set down to be heard at the same time as the original suit conies on to be reheard. {ill) Fittonv. Macclesfield, 1684, 1 Vern. 292. (w) For a precedent of this sort of bill, see the Appendix, No. VIII. (o) Ld. Red. ed. 4, p. 89; Price V. Keyie, 1682, 1 Vern. l.'iS ; Perry V. Phelips, 1810, 17 Ves. 173, 176. {p) Hodson V. Ball, 1841, 11 Sim. 450. {q) Hartwell\. Toumsend, 17G8, 2 Bro. P. C. 107. 61 CHAPTER IV. OF IMPERFECTIONS SUBSEQUENT TO THE INSTI- TUTION OF THE SUIT. A SUIT, perfect in its institution, may become im per- The various' feet after the filing of the original' bill, from some ^^fonl IX" event arising, wliicli, either wholly or partly, hinders sequent. the further prosecution thereof. The Court, as we before observed, will not permit any event which has arisen subsequently to the filing of the original bill, to be introduced into the original bill by way of amendment (a), except in some few instances. But it allows the imperfection to be reme- died by other means ; — in some cases by filing a new bill referring to the original bill, and bringing the new event before the Court ; — in other cases by giving to a new suit the benefit of the proceedings in the original suit. The event which arises subsequently to the filing of the original bill, may be either such an event as makes a change in the parties representing the interest in the matter in litigation ; or it may be such an event as makes no change in the parties representing the in- terest, but merely demands the introduction of new matter into the suit. We will begin with the most common sort of imper- Where the fection : that occasioned by an event which, occurring ^^^,"'' ^^"?^\, ' , , *' , ^ ' . ^ change in the in the middle of a suit, disturbs the interests which parties. have before been properly represented, and renders the suit imperfect for want of parties. (a) Brown v. Hiyden, 1736, 1 Atk. 291. 62 Of Imperfections subsequent The various To understand this properly, it will be necessary to sorts of Imper-^ in mind the fundamental rule of a Court of lections sub- sequent. Equity, that every interest in the subject matter of a ' suit which may be affected by the relief prayed, must be represented in the suit. There may be numerous interests arising out of one property. The subject matter of a suit may be a single acre of land, but there may be interested in this acre a tenant for life, several remaindermen, a lessee, a mortgagee, a purchaser, trustees, and various others ; some or all of whom may be affected by the decree sought. Now all these interests must be properly represented, not merely at the commencement of the suit, but throughout the whole course of it ; if, therefore, any one of them is no longer properly represented, it must be either that something has happened affecting the person who re- presented it, or that something has happened affecting the interest itself. In other words, — on the one hand, a party may arrive at the termination of his existence, either natural or civil, and so lose his capacity of sus- taining his share of the suit ; or, on the other hand, while all the parties retain their existence, and their capacity of suing, or being sued, yet from their ceas- ing to represent among them all the interests in the matter in litigation, the suit may be incapable of being brought to a final and complete termination. Civil death of Again, — where a party to the suit comes to a natural a party. ^j. ^-^jj termination of his existence, so as to be, as we have said, no longer capable of sustaining his part therein, the consequences of this event will be diffe- rent according as the interest of the deceased party in the subject matter of the suit survives his death, as in the case of the death of a tenant in fee, or dies with him, as in the case of a tenant for life, a rector, or a Where the in- bishop. In the former case the suit is only discon- to the Institution of the Suit. 63 tinued as to such party, and is said to be abated, or to The various suffer an abatement, which abatement may, as we shall fglT n^ ^T^"^" see, be remedied by the corresponding process of re- sequent. vivor ; whilst, in the latter case, the suit is completely terest survives at an end with respect to the party deceased ; and the the death. proceedings which have been had in it, by or against ^^gg^^j-g^ ^^2^^ such party, cannot be made use of by or against any the party. other party obtaining possession of the same property, except by the indulgence of the Court, and under cer- tain conditions and restrictions, On the other hand, an imperfection occurring in the Changes of r, .-, . . 1 ,1 i.' i -i interest inter course oi the suit, such as causes the parties to it, ^^^^^^ without losing their existence, to cease to represent among them all the interests in the matter in litiga- tion, may arise, first, from the assignment of an inte- rest by one person to another, as in the case of a sale, a mortgage, or a bankruptcy ; or, secondly, from the rise of a new interest, as in the case of the birth of a child entitled under a settlement; or, thirdly, from the cessation of an interest during the lifetime of the party enjoying it, as in the case of a tenant until a contingency losing his interest upon the occurrence of the contingency. Lastly, when the new event makes no change in the When the event parties to the suit, there is no subdivision of the the partie^s.*^^^ subject. It is proposed, then, first to consider the subjects of Division of Abatement and Revivor, with the consequences which ^ ^ u jec . ^ they produce upon the proceedings in the suit; and, secondly, to discuss the circumstances under which a party may die without leaving any interest surviving him, and to inquire how far the benefit of the pro- ceedings respecting such party may be made available in a new suit. After this, we will consider the three several cases 64 Of Imperfections subsequent to the lustitution, Sfc. Division of of Assignment of interest, Rise of a new interest, and , the Subject. ^ Cgggation of interest during life; and, lastly, there will remain the subject of those events which, while they render the suit imperfect, make no change ne- cessary in the parties to it. It is hardly necessary to premise, that in speaking of interests it is intended to include, not beneficial interests only, but liabilities, which are, as it were, negative interests in the matter. Thus the connexion which a trustee, sued for a breach of trust, has with the suit, may be as well expressed by the term in- terest, as that of the cestuis que trust who sue him. 65 CHAPTER V. OF ABATEMENT. We have seen that where the event which renders an Nature interest which survives that event no longer repre- ?^ Abatement. sented in the suit, is such as terminates tlie legal existence of tlie representative, the suit is said to abate, or be abated, as to that party. This abatement Total or par- will affect the suit in one of two ways. — If the party ^^^^' Avas sole plaintiff or sole defendant, the abatement as to him is an abatement of the whole suit. — If he was on^ of several plaintiffs or several defendants, the suit remains unabated as to the other parties (a), but it is rendered defective as to them, because there is a material interest unrepresented. There is, however, one anomalous species of cases, Cannot occur in which one of several plaintiffs may die, and leave g^jj whtre*^^' an interest surviving him, and yet the suit may not there are more only not abate, but not even become defective. This ^^^^ o'^'piain- occurs in the description of cases in which it is per- mitted to one or more persons belonging to a class, as creditors, next of kin, &c. to file a bill on behalf of themselves and the rest of the class. In such a suit as this, if there are more than one plaintiff on the record, and a plaintiff dies or otherwise loses his legal existence, the suit is wholly unaffected, although he leaves an interest surviving him which devolves on his representatives. For as one plaintiff would have (a) Finch v. IVinchelsea, 1727, " the death of one plaintiff, the suit 1 E. Ca. Ab. 2 ; ride etiam, 11 Ves. not abating as to the otiier," 312, where Lord Eldon spealis of F 66 Of Abatement. Nature of Abatement, Unless they sue in respect of their several demands, or in different capacities. What Events cause Abate- ment. been originally sufficient to sustain the suit on behalf of all, so one plaintiff is now sufficient to continue it (5), and the representatives of the deceased plain- tiff are in no worse condition than the other per- sons of the same class who were never put on the record at all. Where, however, some creditors join in filing a bill in respect of their several demands under a composi- tion deed, and not on behalf of all the creditors, of course the death of one of them causes an abatement, as in the case of any other co-plaintiff dying (c). And if the other co-plaintiffs are not creditors in the same capacity as the deceased co-plaintiff, then they can only prosecute the suit so far as their interest is concerned, and therefore the suit abates as to the deceased co-plaintiff as much as in any other case of a co-plaintiff dying. Thus where a bill was filed by Burney, a judgment creditor, on behalf of himself and all other judgment creditors, together with Mor- gan, a mortgagee, as co-plaintiff; and after decree Burney died, his death was, in effect, held to cause an abatement as to him. For though Sir John Leach, V. C, said that Bumey's death did not abate the suit, because Morgan might have prosecuted the de- cree, yet as His Honor allowed a revivor by Burney 's representatives to be good, it is clear that he only meant that the suit was not abated, so far as Burney's and Morgan's interests were identical {d). We will now consider what events will cause an abatement of a suit ; that is, what events will cause the civil death of a party, and at the same time leave his interest surviving him. For this purpose we must (5) Leigh v. Thomas, 1751, 2 364. Ves. sen. 312. {d) Burney v. Morgan, 1823, 1 (c) Boddy v. Kent, 1816, 1 Mer. S. & S. 358. Of A batement. 67 first inquire, generally, what are the events by which What Events the civil existence of a party is terminated. A civil dissolution might formerly have been the ^ cause Abate- ment. result of taking monastic orders, and of excommuni- ^J^^^^^p^'j^^ cation or conviction of popish recusancy ; but now l)y recusancy no Act of Parliament {e) it is directed tliat in those cases dvU^death!^ ^ in which excommunication is to continue, no person pronounced or declared excommunicate shall incur any civil penalty or incapacity whatever, save such imprisonment as the Court is thereby authorised to inflict; and the disqualification arising from popish recusancy has been virtually, if not actually, abolished by another Act of Parliament (/), by which papists and persons professing the popish religion, taking the oaths and subscribing the declarations therein men- tioned, were relieved from most of the penalties and disabilities to which they were then subject; whilst the incapacity from taking monastic orders has long ceased to exist at all. The events which at the present day may cause a civil death during the course of a suit, are, Death, Marriage of a female, Outlawry, Attainder, and, in the case of an alien, the commencement of a War. First, as to Death. As a suit cannot be instituted by Death.^ or against a dead man, so neither can it, when com- menced by or against a living individual, be prose- cuted by or against him after his death. At the mo- ment of his death, therefore, if his interest survives him, the suit, as regards him, is abated. Secondly, as to the Marriage of a female. In conse- Marriage of a quence o^ a feme coverte's incapacity to sue or be sued, ^'"^^' a woman's marriage amounts to a civil death ; and as her interest survives her, and goes over to her hus- band, her marriage ought to cause an abatement of (e) 53 G. 3, c. 127, s. 3. (/) 31 G. 3, c. 32. F 2 68 Of Abatement. What Events the suit. But here a remarkable distinction presents cause Abate- • i n t p i i ^ • -n^ ^ meiit. itseli. 11 tlie Avoman be a plamtin, the consequences *■ ' ^ of her civil death are carried out, and the suit is abated as far as she is concerned ; but if she be a defendant, no abatement is caused by her marriage {g) ; her hus- band is, without any formality, substituted in her place, and theplaintitf may continue his suit as before, by merely naming him, together with his wife, in the subsequent ])roceedings (//). The cause of this distinction has been given as fol- lows : — " The reason of the difference between the cases of a female ])laintiff" and a female defendant, seems to be, that a plaintiff:' seeking to obtain a right, the de- fendant may be injured by answering to one who is not entitled to sue for it ; but a defendant merely jus- tifying a possession, the plaintiff" cannot be injured by a decree against the person holding that possession (i)." We should here remark that if a female plaintiff" marries, thereby causing an abatement, and the hus- band dies before any further step has been taken in the suit, the abatement will cease of itself, her inca- pacity being removed. But the subsequent proceed- ings ought to be in the name and w itli the description which she has acquired by her marriage (^). Outlawry. Thirdly, as to Outlawry. The situation of an out- law is somewhat changed from what it formerly was. An outlaw was once strictly what the name implies, a man beyond the province of the law ; — who could not sue ])ecause the law afforded him no protection ; whom it was useless to sue because you might take from him all that he had, and even put him to death without the intervention of any law. It is clear therefore {(j) Jackson v. Smith, 1577, {h) 1 Yes. sen. 182. Cary, by Lambert, 81 \ Ahernnve.nny (i) Ld. Red. ed. 4, p. 58, n. V. Aiergovenny, 1731, 2 E. Ca. {k) Godv-in v. Ferrars, 1772, Ab. 1. cited in Ld. Red. ed. 4, p. GO, n. Of Abatement. 69 tliat an outlaw was originally a man civiliter inortuus. What Events and it followed that if a party to a suit became out- '^^""'f ^^'''^*^- lawed, the suit immediately ceased as far as he was ^— — . ' concerned. The rigour of the law against outlaws has for many years past been considerably abated, and such persons are now far from being without the pale of the law. It is still true, however, that (with the exception of executors and atlministrators(/), or the husbands of the same (w), next friends (/i), and other persons suing in autre droit, except relators in informations (o),) they cannot sue in a Court of Justice while the outlawry is in force (p), except for the purpose of reversing thfc outlawry ; nor can they be made defendants to a suit Vvdiere the demand is in rem and they are made de-^ fendants as being interested therein (5') ; it appears,, however, that they may be sued for a demand against themselves personally, and cannot plead their own outlawry (r). It can hardly be said, however, where the demand is in rem, that the outlaw's interest sur- vives his outlawry, although it may return to him on a reversal of it. It is apprehended therefore that outlawry falling upon a plaintiff, not clothed with one of the characters above excepted, will cause, not so much an abatement as a suspension of the suit as far as he is concerned (s) ; and that outlawry falling {I) Killiyrew v. FAUigretv, 1683, during the suit. Where the phiin- 1 Vern. 184. tiff is an outlaw at the institution (m) 1 Dan. Ch. Pr. 59. of the suit, Mr. Daniell inclines to (w) Prac. Reg. 350. the opinion of Lord Chief Baron (o) 3 Bac. Abr. 702. Gilbert, that a bill of revivor ought (p) 1 Dan. Ch. Pr. 59. to be filed on the reversal of the {g) 1 Dan, Ch. Pr. 250. outlawry, because the j)lea of the (>•) 1 Dan. Ch. Pr. 250. outlawry is a part of the record. (s) It seims to be undecided [1 Dan. Ch. Pr. 63.] But this what, if any, step must be taken argument will not apply where the by a plainaff on the reversal of an plaintiff becomes outlawed after outlawry which has fallen upon him the institution of the suit. 70 Of Abatement. What Events cause Abate- ment. ^ > Attainder. on a defendant will not cause even a suspension of the suit as to him, where he has been made a party in respect of a personal demand and not in respect of a demand in rem. Fourthly : — A person attainted for treason or felony is incapable of maintaining any suit, being considered as already dead {t) ; but, as in the case of outlawry, it seems that he may be sued for a personal demand against himself, and cannot plead his own attainder, though he cannot be a defendant merely as being in- terested in a demand in rem(u). It is apprehended therefore that a suit would not abate, but entirely cease, as to a plaintiff who became attainted, although it might not cease as to a defendant who became at- tainted, if he had been made a defendant in respect of a personal demand only. Fifthly: — An alien enemy cannot sue in this country, although doubtless he may be sued for a demand against himself His interest however, like the out- law's, cannot strictly be said to survive him. If there- fore a war should break out pending a suit in which an alien is concerned, who thereby becomes an alien enemy, it is apprehended that the suit would be sus- pended only, and not abated, as to such alien, if he were a plaintiff, and not even suspended, if he w^ere a defendant, unless made a defendant merely as being hiterested in a demand iyi rem. On the restoration of peace, his right to sue is restored (x). Bankruptcy It might at first sight appear that Bankruptcy and and insolvency, Jiisolvency, also, were causes of abatement; but on do not cause j ' ' abatement. further consideration it will be observed that those events deprive a man of his yroi^erty only, and not of his civil existence. He is still personally capable of Alien. (0 1 Dan. Ch. Pr. 63. \u) Ibid. 25(i. (jx) 1 Dan. Ch. Pr. 56. Of Abatement. 71 suing and being sued, though his destitution of pro- What Events perty limits his opportunities of standing in eitlier ot ^ent. those conditions. Accordingly, although the language ' ' of some of the earlier cases seems to represent Bank- ruptcy and Insolvency as causing abatement, yet ex- pressions occur in other cases of the same period, and in later ones, treating those events as occasioning de- fect only. Thus in Child v. Frederick (y) it is said that the assignees of a bankrupt plaintiff continue the suit by original bill in the nature of a bill of revivor, which implies that bankruptcy is an abatement ; but in an anonymous case in Atkyns (z). Lord Hardwicke says expressly that bankruptcy is no abatement. Again, in Davidson v. Butler {a), the Court of Ex- chequer held that it was the clear established custom of that Court not to consider bankruptcy as causing an abatement. They refer to a case of Sellers v. Daw- sonib) as affording an argument the other way, but overrule it as not having been fully argued on au- thorities. When, however, that case is looked to, the result of it appears to be opposed to the doctrine of treating bankruptcy as an abatement. It is true that Lord Thurlow said expressly that he considered bankruptcy to be an abatement, but then he adds, that the as- signees of a bankrupt plaintiff continue the suit by original bill in the nature of a supj)leme7ital bill, and that there must be a decree in the supplemental suit itself; — that the original suit was gone by the bank- ruptcy, and that the new suit by the assignees might take the benefit of the former suit. This language (y) 1714, 1 P. \V. 266. 263, n. (z) Anon. 1748, lAtk. 263. C^-) Chy. 1790; cited 1 Atk. (a) Excheq. 1793; cited 1 Atk. 263, n. 72 Of Abatement. What Events woukl seeiii to couti'adict the former assertion, and to me'nt. ^ ^' ^liew that his Lordship considered bankruptcy as ^^ / ' causing defect and not abatement^ otherwise he would have pointed out a bill in the nature of aJi// of revivor as the proper remedy. In the course of an argument (c) it was laid down decidedly by the late Mr. Jacob, that bankruptcy is no abatement ; and the same opinion seems to be enter- tained by Lord Langdale, M. R., from the following- words which fell from his Lordship ; — " having regard to tlie analogous cases of defect by bankruptcy and abatement by marriage, &c. (f/).'"' Lastly, Sir James Wigram, V. C, has said ex- pressly that " bankruptcy, according to the practice in Chancery, renders a suit defective, but does not cause an abatement (e)." Effects Let us now consider the effects of abatement on the of Abatement, proceedings in a suit. — As a general rule an abate- ment has the eifect of suspending all proceedings in a suit, existing at the time of its occurrence, and also of incapacitating any party from taking any further proceeding in it. I. On existing Thus any order obtained previously to the abate- proceec ings. y^^^-^^^ loses its power upon the abatement occurring. Order to dis. , . * , i , ^ ^ miss bill. and continues suspended as long as the abatement lasts. Where, therefore, a motion was made by a defendant to dismiss a bill for want of prosecution, and the plaintiff" appeared and undertook to set down the cause for hearing in a limited time, and in default the bill was to stand dismissed, and then the defendant died, and the time for setting down the cause expired before the suit could be revived, it was held that the (c) 1S27, 1 Sim. 502. (e) 1842, 1 Hare, 01! (d) 1840, 3 Beav. 294. Of Abatement. 73 order dismissing the bill was suspended during the Effects abatement (/). of Aba tement. Process of contempt, sequestrations, receiverships Process, in- appointed upon process, subpoenas to hear judgment, J""^*^'°"^' *"^- injunctions, and other proceedings existing at the time of the abatement, will abate with the suit. This at least is always their natural fate {g). But in some cases, namely where a revivor of the suit would have the effect of reviving those proceedings, we shall see that the Court will interpose its power, and keep the proceedings alive for a sliort time, in order to give an opportunity of reviving them with the revivor of tiic suit(/<;). There is, however, an exception to this rule in the A perpetual case of a perpetual injunction having been obtained does"not abate before the abatement. Such an injunction will con- tinue in force notwithstanding the abatement (i). Again, with respect to further pi'oceedings ; — no n. On further order can be obtained during an abatement (/i) ; and ^^^'"^^^'''"ss- where an order to dismiss the bill for want of prose- cause, cution was obtained during an abatement, it was held irregular (Z). However, the order, if obtained, will not be considered as a mere nullity, and accordingly in the above case of Boddy v. Kent^ where such an order had been obtained during an abatement by the death of a co-plaintiff. Lord Eldon said that the order to revive could not be obtained until the order to dis- miss, though an irregular order, had been discharged. His Lordship also said that the above case of Sellers (/) Grcgson v. Oswald, 1787, Dick. 351; Askew v. Toivnsend, 1 Cox, 34;i. 1772, ibid. 471. ig) 1 Hare, 622. SedvideHor- (^■) Sellers v. Datcson,\7W, cited woodv. Sc/nnedes, 180(j, 12 Yes. 1 Atk. 263. This case was decided 311 •,am\As/:etvv. Toicnscnd, 1772, on the supposition that bankruptcy Dick. 471. was an abatement. (//) Post, Chapter IX. (/) Boddy v. Kent, 1816, 1 Mer. (i) Veomansv, Kih-inf/ton,l7('i2, 361. 74 Of Abatement. Effects V. Dawson did not warrant the view that the irregular of Abatement. ^^^^^ ^^.^^ ^ ^^^^^.^ nullity. Mr. Daniell(w) strongly questions the above de- cision in Boddy v. Kent, observing that as an abate- ment is total whether it occurs by the death of a sole plaintiff or a co-plaintifF, and as, therefore, there is no person in existence who can oppose the motion to dis- miss, nor, until the suit has been revived, any person who can move for the discharge of the order to dis- miss, it is difficult to conceive what else could have been done than to act as if the order to dismiss had not been obtained. AVith deference, however, it ap- pears that he is wrong in supposing that an abatement by the death of a co-plaintiflF is a total abatement (w)) although it may for some purposes have the same effect as a total abatement ; and even if it were, there is nothing to Avarrant the assertion that the suit must be revived before any person can be in existence who can move for the discharge of the order to dismiss. The same power which, during an abatement, can pre- serve the existence of an irregular order, can also, during the same abatement, give existence to an order to discharge such irregular order. Process of Process of contempt, issued during a total abate- contempt. ment, is irregular, and may be discharged on motion with costs. And if a defendant is arrested on any process during an abatement, he will be discharged with costs to be paid by the arresting party (o). Where a co-plaintiff died, and it being doubtful what interest his executors had in the matters in litigation, and they shewing no disposition to become co-plain- tiffs in any bill of revivor, none was filed ; and the (w) 2 Dan. Ch. Pr. 360. one plaintiff, the suit not abating as (m) Vide 11 Ves. 312; where to the other." Lord Eldon speaks of " the death of (o) 3 Dan. Ch. Pr. 223. Of Abatement. 75 surviving plaintiffs proceeded to issue an attachment Effects against one of the defendants for some default ; upon "^ Abatement. a motion calling in question the regularity of such at- tachment, Sir John Leach, V.C., said, " that the sur- viving plaintiffs ought to be prepared to shew that the representatives of the deceased plaintiff had no inte- rest in the suit; because, if they had any interest, the issuing of an attachment in the absence of persons whose rights that process of contempt was in part meant to enforce, was at variance with the practice of the Court ; and that he could not imagine any case in which the issuing of an attachment pending an abate- ment could be justified, unless, perhaps, when the rights of parties had been declared, and it was a pro- ceeding between those parties only, and strictly limited to the enforcement of their rights, and in which no one else but themselves had any concern (p)." Where a suit abated by the marriage of a female Cross bill, plaintiff, and, before it was revived, a cross bill was filed, it was held that the original bill had lost its priority over the cross bill (q). Depositions taken during an abatement cannot be Depositions. used afterwards. Thus where a devisee of a plaintiff filed by mistake a simple bill of revivor, and examined witnesses, and the bill of revivor was dismissed as irregular, whereupon the devisee filed an original bill in the nature of a bill of revivor, he was not allowed to make use of the depositions taken under the bill of revivor, because they were taken when in fact there was no cause before the Court (r). Where a suit abates after a decree has been pro- Passing a decree. (p) Gibbs V, Churton, 1824, 1 2G0. C. P. Cooper, 496. (r) Backhouse v. Middleton, (g) Smart r. Floyer, 1754, Dick. 1670, 1 C. C. 175 ; 3 Ch. R. 40. 76 Of Abatement. Effects of Abatement. V . ' Irregular pro- ceeding must be questioned at the time of its taking place. Partial abate- ment. nounced, the suit must be revived before the decree can be passed {s). It appears, however, that if any proceeding takes place in a suit pending an abatement, and is not called in question at the time of its taking place, it cannot be called in question afterwards. Thus, where a feme sole filed a bill, and afterwards married, (thereby causing an abatement), and proceeded to a decree without having filed any bill of revivor, and after- wards a bill of review was filed impeaching the decree as having been made during an abatement, the bill of review was dismissed, "because the error was only matter of abatement, {i. e. matter of practice), and not to the right ; and appeared not in the body of the decree, but Avas matter of fact out of the decree, and might have been taken advantage of at the hear- ing («)." Where the cause is abated as to one only of several defendants, it merely prevents proceedings from being taken by which the interest of such defendant can be affected, and proceedings affecting the other parties only may take place as before. Thus v/here a decree had been made ordering cer- tain trustees and their cestui que trust to make a con- veyance of some property, and the cestui que trust died before the conveyance had been executed, the trustees were compelled to convey notwithstanding such par- tial abatement (?0- So, pending a partial abatement by the death of one defendant, process of contempt may be issued and executed against the otlier defendants {x). (*) Bertie v. Falkland, 1715, Dick. 25. {t) Cramlorne v. Dalmahoy, 1662, 1 C. R. 231 ; and see Peachy V. Vintner, 16G4, ibid. 252. {u) Finch v. Winchehea, 1727, 1 E. C. Ab. 2. (x) 3 Dan. Ch. Pr. 225. Of Abatement. 77 And where a bill was retained with liberty to the Effects plaintiff to bring an action against one of the defen- pt" Aba t ement. dants, and tliere was no direction as to the other de- fendants attending the trial, and one of these other defendants died, and the action was tried before the suit was revived, it was held that the trial was not prejudiced thereby. But it was allowed that it would have been othei'wise if the defendant who died had been directed to attend the trial {y). There are some exceptions to the rule that no pro- Exceptions to ceedino-s can be had in a suit durino; an abatement (2^). J^ '^"^1 „ '^ .-5 \ / Payment of Thus where a sum of money had been ordered to be money out of paid by one defendant to another defendant, and the ^''"^*- plaintiff' died before the money was paid, Sir L. Shad- well, V. C, iield that as the proceeding was one in which it was plain no one had any interest except the defendants, it might without inconvenience go on not- withstanding the abatement, and that there was no oc- casion to wait until a bill of revivor should be filed (a). Sometimes money may be paid out of Court, even where no order precisely to that effect has been made previously to the abatement. Thus, where a decree had given an infant plaintiff liberty to apply, at twenty- one, to have certain stock and cash transferred and paid to him, and the )>laintiff died after twenty-one, without having so applied, and his administrator peti- tioned for the transfer and payment to him of the stock and cash. Lord Eldon made the order, the right of the petitioner being clear (Z*). These orders are of fi-ecpient occurrence, also, where, {y) Humphreys v, HoUh, 1S21, Edj). Armstrony, 1790, 3 Bio. C. Jac. 73. C. 238. (r) In a case of lunacy, where a (a) Jones v. Williams, 1837, 1 reference bad been made to the C. P. Cooper, 488. Master, and then the lunatic died, (i) Roundell v. Currer, 1801, it was said that the IMaster should fi Ves. 250. make his report notwithstanding. 78 Of Ahatement. Effects by a decree or decretal order, the dividends of a fund a emen .^ -^ Court have been directed to be paid to a tenant for life, and liberty has been given to the parties inter- ested, to apply for the fund at his death. The tenant for life probably survives some or all of the parties to the suit, so that when, on his death, the occasion for applying to the Court respecting the fund arises, the suit is, and perhaps has long been, abated. In such a case it is not necessary for the parties interested to revive the suit, but they may present a petition for transfer of the fund, on which, and by means of a reference to the Master, if necessary, their rights will be ascertained and determined. If, however, by the decree or decretal order, fur- ther directions have been reserved, the hearing of the cause is not at an end, but it must be again set down for hearing. This cannot be done pending an abate- ment, and the suit must therefore be previously re- vived. It is conceived that when a petition for the above purpose is presented in an abated suit, all persons who would have been made parties to a bill of revivor if such a course had been adopted, must be made parties to the petition, either by joining in it as peti- tioners, or by being served with it. It has been said that the payment of the fund can- not be ordered, unless all parties interested give their consent to it. Thus where a suit for the administra- tion of an estate abated by the marriage of a female co-plaintiff, an infant ; and a petition was presented that the executors in the cause might raise money by sale or mortgage of a certain term, and pay it to the defendant with a view of putting an end to the suit. Lord Hardwicke said, that by consent of all parties money might be ordered to be paid out of Court Of Abatement. 79 during an abatement, but not without such consent ; Effects and that therefore in this case he could not, on mo- of Aba t ement. tion or petition, order money to be raised out of the estate, because it was limited in remainder to the infant co-plaintiff in fee, who could not give her con- sent ; and that he could only do so by a decree at the hearing (c). Perhaps, however, the above case can hardly be considered to be exactly in point, the object being, not to pay money to a party entitled to it, but to raise money for a purpose entirely new. So an order may be made, pending an abatement, Delivery of *2eds ani' ritings. for the delivery up of deeds and writings brought into ^^^^ ^"^ Court ; or a reference may be made to the Master for inquiry to whom they belong {d). Where great delay had occurred in the prosecution Conduct of the of a decree in a creditors' suit for the administration ^^"^^• of assets, a creditor was allowed to apply, during an abatement caused by the death of the defendant, to have the conduct of the cause (e). An order may be obtained, during an abatement, to Enrolment of enrol a decree nunc pro tunc, and such enrolment may *^^""^^- be made notwithstanding the abatement (y). And where any order, with the above excep- Discharge of tions, has been made and executed during an abate- ^'■'■^S"^^^ o''*^^''- ment, this being, as we have seen, irregular, a motion may be made pending the abatement, to dis- charge \t{g). Where a commission to examine witnesses abroad Depositions. has issued before the abatement, depositions taken under it, during the abatement, will be good, if neither (c) Beard v. Poivis, 1751, 2 (/) Clapham v. Phillips, 1674, Ves. sen. 399. Rep. temp. Finch. 169 ; Bucking. (d) 1 Ves. sen. 1S5. ham v. Sheffield, 1739, Amb. 586. (e) Cook V. Bolton, 1828, 5 (g) Bod'di/Y. Ke}if,lSl6,lMer. Russ. 282. 361. yO Of Abatement. Effects the commissioners nor the witnesses have received of Abatement. . p , , ,-,^ ^ ^ I notice 01 the abatement (//). And where a feme sole sued out a commission to examine witnesses, and married before they were examined, their depositions were ordered to stand (i). Judgment. After a cause has been heard, the judgment follows as a matter of course, and is, for most purposes, con- sidered as contemporaneous with the hearing*. It has been held, therefore, that the death of a defendant after the hearing, but before judgment has been pro- nounced, will not prevent the Court from giving its judgment (J{). Order on Wliere one of sevei'al defendants died pending their f'ppea . joint appeal to tiie House of Lords, and the House of Lords admitted his representatives, on their petition, as parties to the appeal, and made an order varying the decree below, and dismissing the bill as against the deceased defendant with costs ; it was held that that order might be made an order of the Court below without first reviving the suit, because it was an order against the defendant, as tlie party on tlie record, and not against his representatives (/)• (h) Thompson v. Took, 1733, {k) Davies v. Davies, 1804, 9 Dick. 115 ; 3 P. W. li)5 ; Pcfenv. Yes. 461. Robinson, 17A7, Dick. 116; Sin- (J) T/iorpe v. 3Iaf/inff lei/, lSi2, clair V. James, 1755, ibid. 277. 1 Phill. 200. {i) Winter v. Dancie, Totli. 163. 81 CHAPTER VI. OF REVIVOR. After a suit has become abated, it may be, as we Nature have already seen, revived or restored to its former ^ of Revivor. condition (a) by certain processes, all producing the same result in tlie end, but varying- in their forms, names, and modes of operation according to the me- diate or immediate privity with the deceased party in which the party stands, upon wliom the surviving interest devolves. Tlie suit may also, if necessary, be only j)artiaUy revived. Tlius, if consistent with the relief prayed, a suit may be revived so far as the interest of a deceased party's real estate is concerned therein, by bi-inging his lieir before the Court, witliout bringing his j)er- sonal representative before the Court in respect of the interest of such party's personal estate, or vice versa {h). But although a suit may be revived as to part of tlie hiutter in litigation, it cannot be revived as to part of the proceedivgs. That is, a revivor cannot be made to operate from a particular period of the cause only ; " but the wliole proceedings, bill, answer, and orders made in the cause, must stand revived ; for the re- (a) It must, however, be re- and commence de novo by original membered that the adoption of the bill. Spencer v. Wrai/, 1G87, 1 permission to revive the suit is Vern. 46'.i ; 3 Atk. 48(i. wholly optional, and the old or (b) Ferrers v. Cherry, 1701, 1 new plaintiff, as the case may be, E. C. Ab. 4 ; Ld. ReJ. eJ. 4, p. may , instead of adopting that course, 80. altogether abandon the abated suit, G 82 Of Revivor. Nature vivor IS but a continuation of the same suit, and it t of Revivor. ^ cannot be a continuation of the same suit unless it proceeds from where the other left ofF(c)."" Where a suit has been revived by a wrong person, as an executor under a revoked will, the proper course for the right party to pursue, is to revive de novo. He cannot obtain any benefit from the wrong re- vivor id). A revived suit may be again and again revived until the interest of the thing in question be deter- mined (e). For what Pur- We have said, that whenever an abatement occurs, poses a Suit ^j-^^ g^^j^ ^^^ |-,g I'evived. This, however, is universally may be revived. -^ ' ' , ^ •> * -V ' true only as regards the machinery of the suit, for with reference to the subject matter of the suit it must be Not for costs, received with some modification. If at the time of the abatement the suit has become entirely concluded with the exception of the payment of the costs, the parties will not in general be permitted to revive it merely for that purpose (/). Lord Hardwicke, how- ever, in many cases expressed his opinion that he thought this a very hard rule. It makes no difference whether the abatement arises from the death of the party who is to pay the costs, or the death of the party who is to receive them. It is true that in Morgan v. Scudamore (g), where the party who was to receive the costs died after the Master had (c) For. Rom. 174. 1723, Dick. 42, where the decree (d) Huggins v. York Buildings gave a female plaintiff her costs, Co., 1740, 2 E. C. Ab. 3 ; Ryland and was signed and enrolled, and V. Latouche, 1820, 2 Bli. 566. the accounts taken, and the plain- (e) Att. Gen. \. Bar/cham, IGQl, tiff married before the costs were Hardress, 201. taxed, she and her husband were (/) Kemp V. MacJcrell, 1754, 3 held entitled to revive the suit for Atk. 811. This rule, however, ap- the costs. pears to apply to abatements by (y) 1794, 2 Ves. jun. 313 ; 1796, death only, and not to abatements 3 Ves. 195. by marriage. In Soger v. Soger, Of Revivor. 83 settled the amount, but before the report was signed, For what Pur- Lord Rosslyn is reported to have said that, in analogy ma^^berevived to the rules of common law, he doubted whether the ^ / ' representative of the party who was to receive the costs might not revive for costs untaxed, although it would be otherwise where the party who was to imy them died, because this would involve a question as to assets with his executor ; but in Juipj) v. Geering (h), Sir John Leach, V. C, after agreeing with Lord Ross- lyn that there could be no revivor against the payers representative for costs untaxed, said that his Lord- ship must have been misunderstood by the reporter of the last case, when he made him say that there was a difference at law, as to costs, between the deaths of the payer and the receiver, for that there was no such difference. The above rule applies only to costs which remain Unless the untaxed at the time of the abatement. Where the taxed, costs have been actually taxed, and the Master's cer- tificate signed, there may be a revivor for costs, be- cause they have then become a judgment debt, and a judgment may be revived in equity as at law(i). But in order to entitle a party to revive, the taxation must have been complete by the Master's having signed his certificate, otherwise the costs will be considered as untaxed (Ji). So where the plaintiff's solicitor, at the request ofOileftun- the defendant's solicitor, had agreed to postpone the special agree- taxation of costs decreed to be paid to the plaintiff", ""ent. on an undertaking that the plaintiff" should not be prejudiced thereby, and the plaintiff" died after the {h) 1820, 5 Mad, 375. Ves. sen. 579 ; Hall v. Smith, 1785, {i) E(lgillv.Broion,l7i2,'J)ick. Dick. 049; 1 Bro. C. C. 438; 62; White v. Har/tvard, 1752, Lowtenx.Corporationof Colchester, Dick. 173 ; 2Ves. sen. 461 ; Kemp 1817, 2 Mer. 113. V. Mackrell, 1754, 3 Atk. 811 ; 2 (/-) 3 Dan, Ch. Pr. 198, G 2 84 Of Revivor. For what Pur- costs were taxed, but before the Master's certificate niaybe^revWed. ^^''^^ been sig'iied, the plaintiff's representative was ^ ' ' allowed to revive the suit, and to procure the Master to make his certificate mtjicjiro tunc, and date it before the death of the plaintiff"; Sir L. Shadwell, V. C, observing, that the agreement amounted, in fact, to an agreement that the suit should be revived (Z). But it is to be remarked, says Mr. Daniell (m), that the circumstances of that case were very special, and can- not in any way be considered as impugning the general rule which has been laid down. Oi- where the Another exception to the above rule respecting costs are to be . p , . ■, .1 i i t ^ i ^ paid out of a revivor tor costs, is where they have been directed to particular fund, ]^q paid out of a particular estate or fund (??) ; or are decreed against an executor out of assets (0). In this case they do not " die with the person," but are con- sidered as a charge or lien on such jjarticular estate, fund, or assets. Of course, the above doctrine as to costs applies only where all the rest of the suit has been wound up. If any thing else, however slight, remains unexecuted at the time of the abatement, there may be a revivor. " If by the decree the party is to pay a sum of money (jj), or if a duty is decreed, or if he is to deliver over a bond or deed, or if any thing is annexed to the decree besides costs, the suit may be revived {q).'' For further It has been said that where a suit for discovery (iscovery. abates after answer, the plaintiff" cannot revive it for the })urpose of obtaining a further discovery (r)- But this appears to be a mistake; tlie j)laintiff' may revive (/) Tucker V. Wilkins, 1835, 7 (0) Dlower\.Morretts,ubisupra. Sim. .'^4!). (2)) Johnson v. Peck, 1752, 2 (?w) 3 Dan. Ch. Pr. 199. Ves. sen. 465 ; Blower v. Morre/ts, ■ (n) Blower v. Morretts, 1754, nbi supra. .•? Atk. 772; Dick. 254 ; Kemp v. (q) For. Rom. 181. Mackrell, 1754, J} Atk. 811; 2 (r) G'omW v. jBarns.v, 1748. Dick. Ves. sen. 579 ; Jenour v. Jenour, 13.'5 ; contra, S. C, Beanies on 1805, 10 Ves. 572. Costs, ed. 1840, pp. 20, 133. Of Revivor. 85 for furtlier discovery, ultliougli the defendant cannot For what Pur- revive for the purpose of obtaininj*- his costs is). '^"^^i' ^ '^".'* , ' _i o ^ ^ may '-e i ovived. So if, in drawing- up a decree, some things have ^ y ' been omitted, and the defendant dies after the decree omission m^a has been enrolled, the suit may be revived for the decree, purpose of supplying the omission {t). We will now inquire what party is entitled to revive What Party an abated suit, and, where several are entitled, which gu^'^^'^*^'^ has the prior right. And it must be understood that ^ v— — ' the question here is, not who is the peison that suc- ceeds to the interest of the deceased party, which is a question of general law, and foreign to the present treatise, but whether that person, whoever he may be, or some surviving party to the suit, and whicii of such surviving parties, is the proper party to revive the suit.. The first great distinction on this subject relates to the period at whicli the suit has arrived when it be- comes abated ; that is to say, whether a decree has been pronounced in it or not. After decree, all the parties to the suit, whether plaintiffs or defendants, are equally actors in the suit, and a defendant, or a person who succeeds to a defendant's interest, is as much interested in prosecuting a decree, and as much entitled to do so, as a plaintiff, or a person who suc- ceeds to a plaintiff's interest ; whereas, until decree, the suit belongs exclusively to the plaintiff or plain- tiffs, and none but a plaintiff, or a person succeeding to a plaintiff's interest, has any right to carry it on. This being premised, let us first consider this ques- Before decree. tion in the case of a suit abating before decree. If there be a sole plaintiff, and the abatement is oc- casioned by the deatii of a defendant, the plaintiff is obviously the only person who can revive. If there be a sole plaintiff, and the abatement is occasioned (6') Doihoa V. Juda, 1604, 10 (0 WiUianis v. Arthur, 10"63, Ves. 31. 1 th. Ca. 37. 86 Of Revivor. What Party by his death, the person who succeeds to his interest Su^/^'^^^ ^ is clearly the only person entitled to revive. If there * ^ ' are several plaintiffs, and the alDatement is occasioned by the death of a defendant, the plaintiffs alone can re- vive, but they may either all join in reviving, or any one or more of them may revive alone (z/), bringing the others before the Court as defendants. If there are several plaintiffs, and the abatement is occasioned by the death of one of them, the suit may be revived either by the surviving plaintiffs, or any of them, or by the person who succeeds to the interest of the deceased plaintiff, or by that person jointly with the surviving plaintiffs or any of them (a;), always however bringing forward as defendants, such of the plaintiffs, or their representatives, as do not join in reviving. There is no In the latter cases, where the right of reviving is priority. ^^^ confined to one person, it may be questioned whe- ther all the persons entitled to revive have an equal right to do so, or whether there exists any rule of priority among them, excluding some from reviving until the others have declined to exercise their right to do so. It would appear from the above cited case of Livesey v. Livesey{y), that a revivor by any co- plaintiff will be sufficient to prevent the other co- plaintiffs from reviving, whether they have refused to join in such revivor, or not ; but it has been held that where the representative of a deceased co-plain- tiff revives, he must apply to the surviving co-plaintiffs to join with him in his revivor, before he can proceed to revive without them and bring them forward as de- fendants ; and that in his bill he must state that he has made such application, and that the surviving co- plaintiffs have refused to join with him(::). It may, («) Finch V. Winchelsea, 1727, 11 Ves. 30G. 1 E. C. Ab.2; Livesei/ v. Livesey, {y) 1829, 1 R. & M. 10. 1829, 1 R. & M. 10. {•) Anon. 1824, 2 Law J. {x) Falloivesv. Williainson, 1805, Chy. 170. Of Revivor. 87 however, it is apprehended, be laid down, that in this, What Party and in other cases, in which there are several persons ^y^/^^^^^ ^ qualified to revive, all are equally qualified ; and that '^ v '' if they do not agree among themselves who shall re- vive, the person who has the start in point of time acquires the best right to revive the suit. This is of the less consequence because it has been held that the person reviving a suit does not thereby necessarily acquire the conduct of it, if there are per- sons still in existence who had originally such con- duct (a). It is true that the case cited in tlie note is a case of abatement after decree ; but it is apprehended that the same principle applies to cases of abatement before decree, and that no person will be allowed to wrest the prosecution of a suit from those who insti- tuted or were conducting it, merely on the ground of his having been more expeditious than they, in re- viving after abatement. In consequence of the rule that none but plaintiffs, Whether a or those who succeed to plaintiff's' interests, can revive ^^^^ ioxS- before decree, the defendants to a suit may be thrown missal in de- . „ , T ^1 . , . . , fault of revivor. into a paniful predicament by any indecision on the part of those who alone can determine whether the suit shall be revived or not. A suit may be kept hanging over the heads of such defendants for an in- definite period, for they cannot in strictness move, in an abated suit, to dismiss the bill, and they are incapa- ble of reviving the suit for the purpose of making that motion. The hardship of this has induced the Court, on some occasions, to interfere on a defendant's be- half, and to entertain a motion on his part, calling on the party entitled to revive, to decide within a given period whether he will revive the abated suit or aban- don it for ever ; — whilst in other cases the Court, al- (a) Burney v. Morgan, 1823, 1 S. & S. 358. 88 Of Revivor. What Party tliougli acknowledging the abstract justice of such an Sidt "^^^'^^ ^ interference, has considered itself precluded on techni- ^^ < ' cal grounds from taking any step in the matter. Tims, in Adamson v. JIaU(b), where an abatement occurred by the death of a co-plaintiff, Lord Eldon, on the application of the defendant, ordered the sur- viving plaintiffs to file a bill of revivor within three weeks, or that in default thereof the original bill should stand dismissed with costs. In Burnell v. Wellington (c), whei'e a defendant died, Sir Lancelot Shadwell, V. C, made the same order, on the motion of the defendant's representative, the time allowed to the plaintiff to revive being a month. In Canham v. Vincent (d), hoAvever, where the abate- ment occurred by the death of a sole plaintiff, the same learned judge refused to make such order. But in Chowick \. Dimes ie), where a sole plaintiff died and the defendant moved that his representative might be ordered to revive in a limited time, or that the bill should be dismissed without costs. Lord Lang- dale, ^I. R., after discussing several cases in favour of the motion, proceeded thus ; " These orders were made by Lord Eldon ; and although it does not appear that in any of them the representative of the deceased party appeared and resisted the motion, yet I cannot suppose that orders so special passed without consideration, or that they are such as would not have been made if thp representatives had appeared and stated no sufficient reasons against them. And although there might, as I conceive, have been some modification of the orders {h) 1823, T. & R. 258, revers- on this point; vide S. C. cited 3 ing S. C. 1 S. .Sc S. 249. Beav. 294, n. (c) 1834, G Sim. 4G1. (e) 1840, 3 Beav. 290; vide (rf) 1838, 8 Sim. 277. It ap- ctiayn Chichester \. Hunter, 1841, pears, however, that His Honor 3 Beav. 491. subsequently altered his opinion Of Revivor. 89 as to costs, if the representatives had apjDearetl, there What I'aity seems no reason to dispute the regularity of tlie orders l^^j^ ''^^'^^ '^ in any other resjiect ; and I apprehend tliat if these *^ . ' orders had been brought to the attention of the Vice Cliancellor, he would have decided the case of Canluuu V. Vincent dilferently. The inconvenience would un- doubtedly be very great to the defendant if it were left to the option of the administrator of a deceased sole plaintiff' to keep the defendant in a state of uncertainty as to the prosecution of the suit, for an indefinite period ; whilst, on an application of this kind, the administrator appearing- may ask for a reasonable time to make up his mind whether he will go on with the suit 01' not." His Lordship added; "The cases which I have mentioned were all of them cases in which injunctions had been granted; but it does not appear to me that that is a circumstance which makes any real difference in the question. Having regard to these cases, and to the analogous cases of defect by bankruptcy and abatement by the marriage of a feme sole plaintiff", I am of opinion that this motion should be granted, unless it should appear that in consequence of the whole interest of the deceased plaintiff' not be- ing vested in his legal personal representative, some further notice is yet wanting (^ )." Lastly, in Lee v. Lee{g), where an abatement oc- curred by the death of a sole jihiintiff". Sir James Wigram, V. C, refused to follow the authority of Chowick V. Dimes. After expressing his opinion that (/) In the above case of Cho- not actually, have been a revivor wick V. Dimes, the dismissal of the foi* costs only, which, as we have bill was moved for without costs; seen, the Court will not i^enerally because, if the representative of the permit. deceased plaintift" does not adopt ((,•) 1812, 1 Hare, GIT. The case the suit, he is, as we have seen, o{ JDryden \. Walford. 1842, 1 Y, not liable to the costs of it ; and & Coll. C. C. 625, is exactly simi- also because, if he were liable, the lar, where Sir J. L. Knight Bruce, motion would virtually, although V. C, held the same opinion. 90 Of Revivor. What Party the practice of the Court ought, as matter of abstract Sdt '^^^'^^ ^ justice, to be such as the decision in Chowick v. Dimes supposed it to be, His Honor said ; " Considering the question apart from authority, it appears clear to me that I can have no right to make tlie order prayed. The suit being abated, and there being no plaintiff re- maining upon the record, — no one who has ever made himself or been made a party to the suit, — there is, in fact, no suit in which I can make an adverse order against any one. There are not, either in form or substance, contending parties between whom an order advei'se to either can be made ; and unless and until the representatives of the deceased plaintiff are com- pelled to appear, or appear gratis, or are in default for not appearing, the Court can have no jurisdiction to make any adverse order against them. Now, in fact, they have not appeared. If the relative positions of the defendants and the representative of the deceased plaintiff are such as to entitle the former to compel the latter to appear in the cause, the regular mode of doing so must be by subpoena or other process of the Court. To such process the representatives of the deceased plaintiff would be bound to yield obedience. But this case would, I believe, stand alone in the practice of the Court, if the defendants have a right to treat the representatives of the deceased plaintiff as being in default for not appearing (which can be the only ground for acting against them) simply because they have not appeared upon a notice of motion given by the defen- dants at their own mere will, in a non-existing suit, with which those representatives have never in any manner connected themselves." His Honor distin- guished the case of dismissing a bill in default of re- vivor from the cases of permitting injunctions to drop in default of revivor Avithin a limited time, and of dis- Of Revivor. ' 91 missing a bill as against the assignees of a bankrupt What Party in default of their commencing a supplemental suit g^^^ ""^^^^^ ^ within a limited time, saying that in the former case ^ / ' the Court would be making an adverse order against a person not a party to any existing suit, while in tlie latter cases it only permits the abatement, or the efflux of time, to produce its natural consequences in de- fault of revivor or of prosecution of the suit, and gives the notice by way of indulgence. His Honor also remarked that " tlie case oi Adam- son V. Hall, in which one of several plaintiffs died, leaving the others surviving, and the cases in which a person has married a sole female plaintiff, did not ne- cessarily furnish a precedent for the case before him, in which the party to be affected by the order was, both in form and substance, a stranger to the record. But with respect even to those cases, considering how little the subject had been discussed, he could not help doubting their regularity, regard being had to the known effect of an abatement of a suit upon the right to costs ; [the bills having in those cases been dismissed with costs, which was in effect a revivor for costs]. And if in that respect the orders were irregular, it could not under the circumstances but shake their authority al- together." The same remarks apply equally, it is apprehended, to the case of Burnell v. Wellington, although His Honor seems to have inadvertently in- cluded that case among those in wliich the suit abated by the death of a sole plaintiff, the abatement having been in fact caused by the death of a defendant. But whether a defendant may or may not move in an abated suit, before decree, to dismiss the bill for want of prosecution if the representatives of the deceased plaintiff do not revive in a given time, it seems that at least he may prevent such representatives from com- 92 Of Revivor. What Party meiicing a new suit respecting tlie same matter until Suil '^^^'^^ ^ ^■'^^y ^^^'^'^ P^^*^ ^^^^ costs of the abandoned suit. Thus, '' / ' in Altree v. Tlorden (h), a surviving plaintiff died, and the suit thereby became wholly abated, but no appli- cation was made by the defendants that the repre- sentatives of the surviving plaintiff might revive the suit, nor did the representatives of such plaintiff take any proceedings to revive the suit ; but shortly after- wards they filed an entirely new bill against the same defendants. This bill was founded upon the same matters, and sought the same sort of relief, as formed the foundation and prayer of the original bill ; and it appeared that it contained the same statements and al- legations as would have been contained in the first bill if leave had been given to amend it. On a motion by four of the defendants to the second bill, to take that bill off the file with costs to be paid by the plaintiffs, or that all proceedings in the second cause might be stayed until the plaintiffs in that cause should have paid those four defendants their costs in the first cause; Lord Langdale, M. R., said, " that, with re- spect to the new bill, he thought he could only treat it as such a bill as would have resulted from an amend- ment of the original or first bill, in that case it surely could not be contended that those who were seeking to have the benefit of the former proceedings, and the discovery obtained in the former proceedings, and who founded their allegations in the present bill upon the statements made in the answers to the former bill, were to have all the benefit of that suit, and yet to lay aside their proceedings in such a manner as to give the defendants no opportunity, in any stage of the cause, to apply for any of the costs to which they had been subjected." Again — "It is not enougii to say {h) 1842, 7 Jurist, 247. Of Revivor. 93 that, if the former suit had been prosecuted, the plain- what Party tiffs might never have had to pay costs. Very probably ^^7 revive a it miffht have been so. That suit mioht have been ^ , ' prosecuted, and there might have been a simple bill of revivor, and for any thing that can be known to tlie contrary the defendants miglit not have had their costs, but miglit liave had to pay costs. But though that might have been so, it docs not appear to me that the plaintiffs can abandon the cause altogether, de- priving the defendants of all opportunity of ever trying the question of costs, and, taking themselves all the benefit that could be got from it, leave the defendants wholly remediless." His Lordship accordingly ordered that all the proceedings in the second cause should be stayed, until the costs had been paid in the first cause. We now come to consider the question what party After decree. is entitled to revive the suit where an abatement takes place after decree. After a decree has been pi'onounced in the cause, the rights of the several parties, both plaintiffs and defendants, are ascertained, and they are all interested in the future proceedings. If, therefore, a suit abates after decree, it may be revived by a defendant or the person who succeeds to a defendant's interest, as well as by a plaintiff" or a person who succeeds to a plain- tiff"s interest (i) ; and it does not appear tliat in this case any one party has priority over another, but the rule will apply, qui prior est tempore potio?- est jure. Thus, in the case of Burney v. BIorgan{k), where a bill had been filed by Lady Pryce, the owner of an estate, and by Burney and Morgan, incumbrancers on (i) WiUiamsw Cooke, 1805, 10 xxoidittva. decretal order onU. Vide Ves. 406; Ld. Red. ed. 4, p. 79 ; Horwood v. Schinedea, 180(3, 12 and see Ld. Stovelt v. Cole, 1690, Ves. 311. 2 Vern. 219 ; and Ladi/ Stoivell v. {k) 1823, 1 S. & S. 358. Cole, 1693, ibid. 29(3. But it seems 94 Of Revivor. What Party that estate, against a purchaser for specific perform- SuU ^^"^^ ^ ^"^^ ' ^"^^ ^" abatement being caused by the death of ^ < * Lady Pryce, the suit was revived by the surviving plaintiffs, and a decree was then made, and afterwards Burney died, and the suit was revived by his personal representative, Morgan having declined to do so, and afterwards Morgan died, and then his personal repre- sentative revived the suit, and applied to the Court for an order to restrain Burney's representative from proceeding further ; Sir John Leach, V. C, (after hold- ing that the revivor by Burney's representative was not irregular), said ; " It is a mistake to suppose that in consequence of this bill of revivor Morgan lost any right to prosecute the decree which he before possessed. Every party to a suit is an actor after a decree, and therefore the representative of Burney, and Morgan, and the other defendants, were all entitled to prosecute the decree upon the order for revivor. And if the situation of Morgan, as surviving plaintiff in the original suit, entitled him to a preference over the representative of Burney as a plaintiff in the bill of revivor, where both were acting with equal dili- gence, it was his own fault if he did not assert it. " If the representative of Burney had a right to file a bill of revivor,' it necessarily follows that the repre- sentative of INIorgan had an equal right so to do upon the death of Morgan, and that his bill is regular. — To this bill of revivor the representative of Burney was a co-defendant, and stands now in the same situa- tion in the cause, as Morgan himself stood after her \i. e. Burney's representative's] bill of revivor. But in truth they are all actors, and this varying relation of plaintiff and defendant makes no substantial dif- ference." A defendant When a defendant wishes to revive a suit, it has Of Revivor. 95 been supposed that he must give notice of his intention What Party to the party conducting tlie cause, as being the first en- Surt/^^^^^ ^ titled to revive. But it seems to follow from the above 1 , ,. . ^, * 1 Ml p • need not give case that such notice is unnecessary. " A bill or revi- notice of his vor by a defendant," says Lord Redesdale {I), " merely intention to substantiates the suit, and brings before the Court the parties necessary to see to the execution of the decree, and to be the objects of its operations ; and does not litigate the claims made by the several parties in the original pleadings, except so far as they remain unde- cided." It was formerly lield that a defendant could only A defeudant revive a suit after a decree for an account, and that it ^heneTer he was only in that case that he became an actor, in con- tas an interest, sequence of the possibility of such account leaving a balance in his favour (m). But this doctrine has been overruled, and it is now settled that his right to revive is not confined to such cases {n), nor even to cases in which he might have himself filed the original bill (o), but that he may do so wherever he has an interest. A defendant will not, however, be allowed to revive a suit, where he has no interest under the decree, that is, where he is not interested in the further pro- secution of the suit. And where the object of a bill of revivor by a defendant is not to continue the suit, but merely to put an end to an injunction and to be allowed to proceed at law, it will be liable to a de- murrer {p), and the defendant must proceed to get rid of the injunction in the ordinary way {q). (!) Ld. Red. ed. 4, p. 79. tempt by^the defendant to revive {m) Kent v. Kent, 1702, Pr. Ch. was after a decretal order onlv, and 197. ylnoM. 1748,3 Atk. G91. not after decree. (w) Finch v. Winckelsea, 1727, (q) But qxicere whether the in- 1 E. C. Ab. 2. junction would not naturally fall to (o) Devaynes v. Morris, 1835, 1 the ground, of itself, upon the Myl. & Cr. 213, 225. abatement? Vide 1 Hare, C22, and {])) Horwoodv. Schmedes, IS06, «?). ^ Subpoena. ^ If the bill of revivor seeks merely to revive the suit, the subpoena taken out must be a subpoena to revive (a) Metcalfe v. Metcalfe, 18:^6, {b) Humphreys v. Mollis, 1821, 1 Keen, 74. Jac. 73. Simple Bill and Order. 113 only. If the bill of revivor requires an answer also, Subpoena. as where it asks for admission of assets, the subpoena ' must be a subpoena to revive and answer. So also, if the bill of revivor requires tlie defendant to answer the original bill, as where the original defendant has died before answer, the subpoena must be a subpoena to revive and answer. In tliis latter ease it seems tliat the defendant must answer the original bill, even though the subpoena taken out is a subpoena requiring an answer to the l)ill of revivor only (c). The form of the subpoena issued upon a bill of revi- vor is given in the Appendix to the General Orders of 1833. It is sued out and served in the same manner as an ordinary subpoena, and if the bill of revivor is filed against a peer, he is served with the usual letter missive and an office copy of the bill of revivor ; and if the bill of revivor requires him to answer the original bill, he must be further served with an office copy of the original bill, and if not so served, process for de- fault of answer will be irregular (c?). But if the bill of revivor is filed against any other person, he must procure for himself an office copy of the bill of re- vivor, and of the original bill also, if required to be answered. The next step to be taken after filing the bill of Order revivor, (being indeed the great object of the bill, ^ ^ ^ which is of no use by itself), is to obtain an Order for revivor. " The filing of a bill of revivor," says Sir Lancelot Shadwell, V. C, in a case where the exe- cutor of a deceased plaintiff filed a bill of revivor, but neglected to obtain the order to revive, " is not an adoption of the original suit, unless the order for revi- (c) Vigers v. Audley, 1838, 9 (rf) Ibid. Sim. 408. 114 Of Revivor hy Order for Revivor. I. Where the defendant absconds. vor is obtained. The executor has still a locus pceni- tenticE. Having filed the bill of revivor, he then pauses ; and if he does not adopt the original suit, he is not liable to the costs thereof (e)." The order for revivor must be obtained on motion made for that purpose, and it is irregular to wait for a hearing and then revive by decree, even when it is a defendant who revives after decree in the original suit, although in this case the contrary has been sometimes sup- posed (/). With regard to the proper period for moving for the order to revive, we must premise that after a subpoena to revive has been taken out, one of four things may happen. Either the defendant may abscond to avoid being served with the subpoena ; or, secondly, being served with it, he may neglect to appear to the bill of revivor ; or, thirdly, he may appear to the bill of re- vivor, and shew no cause against the revivor ; or, lastly, he may appear and also shew cause against the revivor. I. If the defendant absconds to avoid service of the subpoena, the same process must be adopted for taking the bill pro confesso against him, as in the case of an original bill (g). And where the plaintiff died, and his representative revived the suit, the Court refused, on affidavit of the defendant's absconding, to allow substituted service of the subpoena to revive on his Clerk in Court in the original suit; " for," said Sir Thomas Sewell, M. R., " the bill of revivor is a dis- tinct record from the original bill, and is as much (e) Troward v. Bingham, 1831, Philipps v. Clarke, 1833, 7 Sim. 4 Sim. 483. 234. (/) Pruen v. Lunn, 1828, 5 {y) Bees v. Mansel, 17 b7, DicV. Russ. 3, vide etiam a dictum in 293. Simple Bill and Order. 1 ] 5 a new bill as any other bill (//) ; and a defendant's Order Clerk in Court in one suit is not necessarily his Clerk /"'" Revivor.^ in Court in every suit (i)." II. If the defendant does not abscond from service 11. where the of the subpoena, but after such service neerlects to ^^fendant re- fuses to enter appear to the bill of revivor within the time limited, an appearance. that is, within four days (A), an attachment issues against him as in the case of an original bill (/) ; and if he be taken on such attachment, and neglects to enter an appearance in eight days after the return of the attachment, the plaintiff is entitled, as of course, on motion or petition, to the common order to re- vive {m). And by the same Order, if the defendant cannot be found so as to be taken on such attach- ment, and a return of non est inventus is made thereon, the plaintiff on producing such return, and affidavit of due diligence &c., is entitled, as of course, on mo- tion or petition, at the end of eight days after the return of the attachment, to the common order to levive. In either of the above cases the order must recite as the ground for granting the same that the defendant is in contempt, and that the time limited by the Court to shew cause against reviving the suit has expired (n). III. If the defendant enters an appearance to the III. Where the bill of revivor, or if an appearance is entered for iiim ''^f^'^d/^'it ap- ' ^ pears but does by the plaintiff (0), but the defendant does not within not shew cause {h) Until revivor, the original respects, are transferred to the soli- bill and the bill of revivor form dis- citors of the respective parties, tinct suits. But after revivor, the {k) Vide form of subpoena in original and revived suit coalesce Appendix to the Orders of 1833, into one suit. Vide dicta of Sir aild Order XX. August, 1841. J. L. Knight Bruce, V. C, in /one* (/) Or the plaintitf may, by the V. Smith, 1842,6 Jurist, 1078. EighthOrder of August, 1841, enter (/) Broxvji v. Lee ; Lee v. War- an appearance for him. ner, 1778; Dick. 545, 54 (i ; but (m) Order VIII. 1833. now by Orders III. and XVI. Oct. («) Order VIII. 1833. 26, 1842, the Clerks in Court are (o) Order VIII. August, 1841. abolished, and their duties, in these I 2 116 Of Revivor by Order eight days after his appearance shew cause against the V ""^ ^'"vof. ^ j.gyjyQj, ]3y piea^ answer, or demurrer filed, the plaintiff against the shall be entitled, as of course, upon motion or petition, revivor. ^^ ^1^^ common order to revive, which order shall re- cite, as the ground for granting the same, that the time limited by the Court to shew cause against re- viving the suit has expired (p). Defendant may If the plaintiff, having filed the bill of revivor, miTsViVor neglects thereupon to obtain the order to revive, the revivor, if order defendant may move that the bill of revivor be dis- not obtained, missed with costs unless the plaintiff obtains the order to revive within a limited time(^). But this dis- missal of the bill of revivor does not extend to a dismissal of the original bill, which, until revivor, is, as we have before said, a perfectly distinct suit, and is besides in a state of abatement. Thus in Troioard v. Bingham {t), where a motion was made that the exe- cutor of a deceased plaintiff should obtain the order for revivor on his bill, or the original bill and bill of revivor be dismissed with costs, Sir Lancelot Shadwell, V. C, limited the order to the dismissal of the bill of revivor only, saying that "the filing of the bill of revivor is not an adoption of the original suit, unless the order for revivor be also obtained ; the executor has still a locus j)cenitentice ; having filed the bill of re- vivor, he then pauses, and if he does not adopt the original suit he is not liable to the costs thereof." This case however does not decide that the original bill also would not have been dismissed (in spite of the motion being to that extent made in an abated suit) if the motion had been to dismiss it without costs ; and His Honor'schangeof opinion above mentioned as to the case {})) Order X. 1833. For the 1842, 7 Jurist, 11. form of the common order for re- {r) 1831, 4 Sim. 483; sed vide vivor, see the Appendix, No. X. Bolton v. Bolton, 182r), 2 S. & S. {ij) Chambers v. Mkhl/eton, 371. Simple Bill and Order. 117 of Canham v. Vincent (s), together witli the arguments Order used by Lord Laiigdale, M. R., in tlie ease of Chowick t ' ^""^ ^' > V. Dimes {t), might have warranted us in concluding that both the original bill and bill of revivor would, by the present practice, be dismissed in default of an order for revivor obtained by the plaintiff in a given time, the former without costs, and the latter ivit/i costs, were it not for the recent cases of Lee v. Lee (ii), and Dryden v. Wcdford{x), above quoted, whicli, on the other liand, determine that the original bill cannot be dismissed, during an abatement, in default of revivor, either witli or without costs. Where a party is brought before the Court by a bill oi revivor and supplement, as a defendant to the supple- mental part only, he cannot move to dismiss the bill for want of the plaintiff's obtaining tlie order to revive, because lie is not interested in the bill so far as it is a bill of revivor (i/). If a plaintiff, or any other party, has filed a bill After decree, of revivor on an abatement after decree, but neglects revive on pkm- thereupon to obtain the usual order to revive, the de- ^"^^[^ ^'^' °f fendant, as he might himself have filed the bill of revivor, may, after the expiration of the usual time allowed to the plaintiff for obtaining such order, liim- self obtain an order for revivor on the plaintiff's bill, and that he may be at liberty to carry on the suit {z). And such order of revivor obtained by a defendant, whether obtained on the defendant's or the plaintiff's (6') 1838, 8 Sim. 2"7, and supra, 625, and supra, Chapter VI. Chapter VI. {y) Poltand v. Lamotle, IS-iO, (0 1840, 3 Beav. 290, and supra, 4 Jurist, 382. Chapter VI. [z) Whitehearw. Hughes, M^jj, (m) 1842, 1 Hare, C17,andA7//;ra, Dick. 283; Gordon v. Herliain, Cliapter VI. 1816, 1 Mer. 154. {x) 1842, 1 Y. 6t Coll. C. C. 118 Of Revivor hij Order bill of revivor, will be effectual against all parties, both V ^^ evivor.^ ^I^g plaintiffs and the other defendants (a). Before the late abolition of the Clerks in Court, all orders for the revival of proceedings must have been served on the adverse Clerks in Court, to the end that they might take notice that the suit was revived, and that such revivor was right (Z>). Since the abolition of the Clerks in Court, and the substitution, in their places, of the solicitors of the respective parties (c), it is apprehended that the orders for revivor must be served on the solicitors of the other parties. IV. Where de- IV. The defendant may appear to the bill of revivor, cautragain? ^"^^ ^^^^ ^^^^^ cause against the revivor. the revivor. The defence against a bill of revivor, that is, the way Mode of shew- -j-^ YvJiicli a defendant, after appearing to the bill of ing Cause . ' ... against Re- revivor, may shew cause against a suit being revived, , is by plea or demurrer. A defendant ought never to answey- a bill of revivor at all, either for the sake of objecting to the revivor, or for any other reason, un- less the bill calls for an answer ; and even then, although he must answer it, and although he should in his answer raise an objection to the propriety of re- viving the suit, and file his answer before the order for revivor is obtained, yet this objection by answer will not prevent the revivor of the suit ; the very filing of an answer being held to be a submission to the revivor of the suit, upon which, notwithstanding anything which may be contained in the answer, it is a matter of course to draw up the order to revive (J). (a) Pruen v. Lnnn, 1828, 5 ditch, 1832, 5 Sim. 28G, which Russ. 3. cases although prior in point of (b) 2 E. Ca. Ab. 2. date to the Tenth Order of 1833, (c) Vide Orders III. and XVI. must, it is apprehended, be con- Oct. 26, 1842. sidered as overruling the language (d) Lewis v. Bridgman, 1829, 2 of that Order as to limiting the Sim. 405, and Codrinyton v. Hottl- time for shewing cause by plea, vivov Simple Bill and Order. 119 We have seen that, in order to prevent revivor, the Mode of shew- defendant must shew cause against it within eight days, ag^^Jg^^Re. in default whereof the order for revivor will issue and vhor. the suit will be revived. As however a defendant is ^ ,.,,„. Cause may be allowed twelve days to demur to any bill ot revivor, shewn after the and eiaht weeks to plead answer or demur (not demur- revivor has "' ' , . , . been obtained, ring alone) to a bill of revivor which requires an an- swer (e), he may, it is to be inferred, put in such plea, answer, or demurrer, after the eight days, and there- fore after the suit has been revived (/). And when the plea or demurrer comes on for hearing, or when, in the case of an answer, the revived suit comes before the Court to be heard, the revivor, although obtained, will, it is presumed, fall to the ground(^) if the objec- tion to the revivor appears to be valid, but if other- wise, it will remain effective. And even if no objec- tion should have been made to the revivor, yet if on the hearing of the revived suit it appears that the jjlaintiff had no title to revive, the objection may be made with effect by parol at that period (A). We have seen that sometimes the bill of revivor Answer to bill calls for an answer, and that in this case the defendant ^e confined to must answer it. He must however in his answer con- ^^^ subject of fine himself strictly to such matters as are stated in anstoer, or demurrer. And subse- ance." Langley v. Fisher, 1839, quently to that Order, Sir Lancelot 10 Sim. 349. Shadwell, V. C, who decided the (e) Order X. 1833 ; and Order above cases, says; "The rule is XX. August, 1841. that if a plaintiff files a bill of re- (/) Vide Boyle v. Blake, 1828, vivor, and the defendant objects to 2 Hog. 99. revive the suit, he must do so by (ff) Vide the analogous case of demurrer when the ground of ob- Poole v. Marsh, 1837, 7 Sim. 521, jection appears on the face of the where, under the same Tenth Order bill ; but if the objection is founded of 1833, the plaintifi' obtained au on matter extraneous to the bill, injunction at the end of tiie eight he must state that matter by way days, which fell to the ground upon of plea. If the defendant does not the defendant's successfully demur- either plead or demur to tlie bill of ring within the twelve days, revivor, an order to revive may be (/<) Harris v. Pollard, 1734, 3 obtained, as of course, at the ex- P. \V. 348. piration of eight days after appear- the bill of revivor. 120 Of Revivor hy Mode of shew- the bill of revivor, or would be material to his defence ing Cause ^,\\i\i reference to the order to be made upon such bill, against Ke- , -, n ^ ^ • ^ ■ vivor. just as any defendant must do m his answer to any other bill (i), and therefore he is precluded from making his answer to the bill of revivor a means of discussing the merits of any part of the original suit or of any of the former proceedings (/e), as the object of the bill of revivor is quite distinct from that of such original suit. The defendant may by his answer to the bill of revi- vor controvert the title to revive ; although as we have seen, an objection by answer will not prevent the re- vivor, being on the contrary a submission to it ; but it may, if well founded, avail the defendant at the hear- ing. But even for this purpose the defendant must not in his answer enter into the merits of the original suit (/), or of the decree if obtained (m), because the want of title to revive, if grounded, not on the trans- mission of interest, but on the merits, can be made out only by the same arguments as would have been good arguments against the merits ; and in that case the arguments ought to have been used, if at all, as a defence in the original suit. " The sole question," says Lord Cottenham, C, in the above cited case of Devaynes v. Morris {n), "is whether the pre- sent plaintiff is entitled to put the cause in a proper state to carry on the decree. I am of opinion that ac- cording to the practice of the Court he is clearly so entitled, without any reference to the merits of the decree or of the facts. It follows therefore that all the statements in the answer as to such facts, proceed- ings, and merits, are irrelevant. If the proper time (n Waystaffs. Bryan, 1829, 1 Myl. & Cr. 218. R. & M. 28. (?w) Clare v. Werden, 1706, {k) Ibid. ; and Nanney v. Totty, Dick. 20. 1822, 11 Price, 117. («) Ul/i svpra. (/) Devaynes v. Morris, 1835, 1 Simj)le Bill and Order. 121 for making the defence has been permitted to pass, the Mo'Il- of shew- . , T 1 • ^1 • 1 •!• i'lg Cause omission cannot be supplied in tins manner; and it new against Re- matter has arisen, varying the situation of the parties, vivor. other means exist of bringing it forward ; but the right of a party to prosecute tlie decree, and therefore to do what is necessary for that purpose, cannot depend upon the merits of the decree." It appears however to have been the opinion of Sir Lancelot Shadwell, V. C, that the defendant may in his answer bring forward new matter (although not interrogated thereto by the bill of revivor) for the purpose of controverting the title to revive, or of shewing that the plaintiff cannot have in the revived suit the same decree as he would have had in the original suit. Thus where the original defendants, after answering the statements in a bill of revivor to ■which they were interrogated, proceeded to say that they had become bankrupts and had obtained their certificates previously to the abatement, and claimed the benefit of the bankrupt laws, and prayed the same benefit of this objection in bar to the bill of revivor as if they had pleaded the same to the bill of revivor or to the original bill, such parts of the answer were held to be not impertinent. " In this case," says Sir Lancelot Shadwell, V. C, " the right of the plaintiffs to revive the suit is not denied by the defendants ; but what the defendants mean to represent is, that they have become bankrupt and have obtained their certificates since putting in their answer to the origi- nal bill ; and that although the plaintiffs are entitled to revive the suit, yet they cannot have a decree against the defendants in the same form as they might have had if there had been no such bankruptcies and certificates. It appears too, from the Oflice copy of the bill, that the subpoena which it prays for is one 122 Of Revivor by Mode of shew, which requires the defendants to answer the bill of against Re- revivor, as well as to shew cause, if they can, why the ^'^'Q''- ^ suit should not be revived. These defendants, by their answer, do represent what they had a right to represent ; namely, that the plaintiffs cannot have a decree made against them in the same form as it might have been made at the time when they put in their answers to the original bill. And though it is true that the objection might have been stated at the bar at the hearing ; yet I think that it is by no means incumbent on defendants who are called on to answer a bill of revivor, to omit any facts which materially concern the decree. In my opinion, the defendants to such a bill, in case they are required to answer it, have the same right as all other defendants have ; that is, to state in their answer such facts as are favourable to them as shewing that the same decree as might have been originally made cannot be ob- tained against them, notwithstanding those facts do not tend to shew that the plaintiffs are not entitled to revive the suit(o)." This case however is said (p) to have been subsequently overruled by Lord Cottenham. An objection to a bill of revivor, as being in fact a bill of revivor and supplement, is waived by answer- ing the supplemental part {q). Although an answer to a bill of revivor is liable to exceptions for impertinence and insufficiency, as much as an answer to an original bill, yet, says Lord Chief Baron Gilbert, " if an executor or administrator by his answer admits assets, and the plaintiff on the coming in of the answer, revives his suit, and proceeds in the original cause on the revivor, he shall never Exceptions to answer to bill of revivor. (o) Langley V. Fisher, 1839, 10 {q) Nanneij v. Totty, 1822, U Sim. 345. Price, 117. (/j) 6 Jurist, 1034. Simple Bill and Order. 1 23 afterwards refer the answer for insufficiency ; for this Mode of shew- he ought to have done at first, and before he pro- a"|;„s^"ifg. ceeded to revive the original cause; liis doing whereof vivor. is an admission that the answer was full and perfect ; or otherwise he might have excepted thereto, and had the opinion of the Court thereon ; but then he could not have proceeded to revive till he had got over that point (r)." When the bill of revivor calls for an answer to the When bill of orio'inal bill, as well as for an answer to itself, the i^YJl'! f^' ^ ^^ usual practice is to include the answer to the original original bill, bill and the answer to the bill of revivor in the same answer. The answer is then intituled as the answer to both bills (s). It appears however that the answers may be separated if the defendant prefers \i{t). The process for enforcing an answer to a bill of re- Process. vivor requiring an answer, is the same as that which is in use with respect to original bills. If, as we shall see is sometimes the case, it becomes Replication. necessary to bring the bill of revivor to a hearing, a replication is necessary, as in the case of an original bill and answer. If the bill of revivor is filed before decree, or before issue joined in the original suit, a separate replication is not necessary, but the revived suit and the original suit may be set down under one certificate. But if the bill of revivor is filed after decree, or after issue joined in the original suit, a separate replication must be filed, and subpoenas to rejoin served, after which the proceedings will be the same as on the original bill (m). A simple bill of revivor, as it requires no answer, of Hearing. course requires no hearing. But if the bill of revivor (r) For. Rom. 180. (/) Sayle v. Graham, 1831, 5 (s) Vigers v. Audley, 1838, 9 Sim. 8. Sim. 408. (w) Vide 1 Smith's Ch. Pr. 523. 1-24 Of Revivor hy Mode of shew ing Cause against Re- vivor. . calls for an answer as to assets, and assets are not admitted, the suit must be set down to be heard in order to obtain a decree for an account. It has been said too {x) that if, in any case, an answer is put in to a bill of revivor, which controverts the title to revive or anything put in issue by the bill of revivor, it must be set down for hearing notwithstanding the order for revivor has been or may be obtained on motion in the meantime. The case of Harris v. Pol- lard{y) is quoted in support of this assertion, but it is submitted that that case does not decide that an ob- jection, by answer, to the revivor of the suit necessi- tates the setting down of the bill of revivor for hear- ing, but merely that such an objection may be made by answer, and may be insisted on when the original suit (after having been duly revived by the order for revivor, Avhich issues notwithstanding the objection by the answer) comes on for hearing in the regular way. If however tlie objection to the revivor is taken by plea or demurrer, the bill of revivor must be brought to a hearing for the sake of disposing of such plea or demurrer ; and if upon argument the plea or de- murrer is allowed, the order for revivor, if already obtained, will, as we have seen, lose its effect, and the revivor will fall to the ground ; and if the plea or demurrer is disallowed, the suit will be ordered to stand revived without a new subpoena (s). If the bill of revivor is filed before decree, and re- quires to be heard, the revivor suit may, if the original suit has not been set down for hearing,^be set down it; but together with if the original suit has been {x) 3 Dan. Ch. Pr. 222 ; Seton, (r) Vide Htigyins v. York Build- 365. inys Co., 1740, Baruaid, 83. (yl 1734, 3 P. W. ;;48. Simple Bill and Order. 125 already set down, the revivor suit must be set down Mode of shew- separately ; and in respect of all fees and charges will ^^f 5^3^"^^. be considered as- a separate suit until decree (a). But vivor. if the bill of revivor is filed after decree and requires to be heard, it must of course be set down l)y itself, unless the suit is to come on for hearing on further directions, in which case the revived suit may be set down so as to come on with it (b). Of course a bill of revivor and supplement must be set down to be heard. And it must be set down against the party to the revivor part of it, as well as against the party to the supplemental part of it, al- though, if there had been no supplemental part, it need not have been set down against the former party (c). If it is necessary to set the bill of revivor down for Subpoenas to hearing, it appears that subpoenas to hear judgment in ^^' •■" ^""^^ " respect of the bill of revivor must be served indepen- dently of the subpoenas to hear judgment in the origi- nal suit(f?), (a) 1 Smith's Ch. Pr. 523. Jurist, 314. \b) 3 Dan. Ch. Pr. 223. {d) Vide 1 Smith's Ch. Pr. 403. (c) Lake V. Anstvick, 1840, 4 126 CHAPTER VIII. OF REVIVOR BY SUPPLEMENTAL SUIT AND DECREE. Nature of We have seen that when the new party claims through tbeProcess. the act of the former party, as in the case of a death accompanied by a devise, he cannot be simply put in the place of his predecessor, as where the right de- volves by operation of law, from the want of immediate privity between the late and the present owner. There is first a connecting link to be supplied between them, and this is matter which may be litigated in the Court of Chancery. Now a simple bill of revivor is clearly in- adequate for this purpose, which cannot be determined without a hearing. Neither can it be effected by a bill of revivor and supplement, because in such a bill the supplemental matter must not concern the title to re- vive, but only contemporaneous circumstances. It is necessary to file a bill by which the right to revive may be put in issue, supported by proof and established by a decree. There are two sorts of bills by which this may be done, according as the party whose interest has ceased to be represented was a sole plaintiff, or a defendant or co-plaintiff. I. Where a I- Where the party dying is a sole plaintiff, the suit sole Plaintiff ^r^y^ Qjj]y \^q revived by a new original bill, the necessity '^^'^^^', for which is clearly shewn in the following dicta; "The reasons why regularly the devisee of a sole plaintiff cannot bring a bill of revivor, are, first, be- cause a suit hath been looked upon as a chose in ac- ' Of Revivor hy Supplemental Suit and Decree. 127 tion, and consequently not assignable for fear of main- i. Where a tenance. Secondly, and which seems the better rea- ^g^es*"^ ^ son, because where a plaintiff devises his interest and ^ dies, if the devisee were to bring a bill of revivor against the defendant, the heir or executor would be pretermitted, who might have a right to contest such disposition ; and therefore he must bring his original bill and make the heir or executor a party (a)." The new party, tlien, if he wish to revive the suit, Original biU ia „, . • 1 1 Ml j^j^- • • J 11 the nature of must file an original bill, putting in issue ae novo all a biiiof revivor. the facts stated in the original bill, and then shewing his succession to the interest of the former party, and, as in the case of a simple bill of revivor, praying re- vivor of the suit ; which revivor will however be granted, not on a mere order, but on a decree to be made on the new matter. Such a bill is in form as much an original bill as any other original bill, and, until it has proceeded to a de- cree reviving the former suit, is in fact the commence- ment of a new suit. But as its object and effect are to revive the former suit by the decree, it is said to be in the nature of a hill of revivor^ and is virtually a con- tinuation of the former suit. It is in fact an original bill so far only as it supplies the want of privity, and in all other respects is the same as a bill of revivor (b). When once the validity of the alleged transmission of interest is established, the new party will have the same advantage of the proceedings on the original bill, as if there liad been a privity of interest by operation of law between him and the original party : the defendants cannot make a new defence (c), and the suit is considered as pending from the filing of the original bill, so as to save the (a) 1 E. Ca. Ab. 2. Vern. 548. (6) Clare V. Wordall, 1706, 2 (c) Ibid. 128 Of Revivor hy I. Where a statute of limitations (fZ), and so as to have tlie ad- devlses^'"* vantage of compelling the defendant to answer before ^^ « ' an answer can be compelled to the defendant's cross bill, if he has filed one(e). If a decree has been made in the original suit, the devisee of the plaintiff" has the same advantage of it as an heir or executor, without entering into the merits of the cause, and the decree on the new bill is the same as the first decree, neither longer nor shorter (/). There is a case of Johnson v. Northey{g) which seems to militate against the doctrine that a decree obtained by a devisor enures to the benefit of his de- visee and cannot be controverted. In that case a de- cree by default had set aside a settlement of 1638 under which Lady Lovelace claimed, and had estab- lished a subsequent settlement of 1684 on Lady Phila- delphia Wentworth and her heirs, and was signed and enrolled. Afterwards Lady Lovelace died, and Lady Philadelphia devised the estate to Northey and other trustees for the payment of her debts and legacies, and a bill was filed by the creditors and legatees against Northey the surviving trustee, and against Sir Henry and Lady Johnson, the latter of whom was the heiress of Lady Lovelace, to have the benefit of the decree, and to have the debts and legacies paid, and another bill was also filed by Sir Henry and Lady Johnson to set aside the settlement of 1684. It was held, on the causes coming on to be heard together, that the creditors' bill being to obtain the benefit of the decree, had opened the decree, and that Sir Henry and Lady Johnson might controvert the matter over again. It must be observed, however, first, that the {(l) Child -v. Frederick, 1714, 1 (/) Clare \.Wordall,ubi supra. P. W. 266. (,(7) 1700, Pr. Ch. 134. (e) Ld. Red. ed. 4, p. 1?S. Suppleuiental Suit and Decree. 129 decree was obtained on default, and secondly that the i. where a bill in the second suit was filed, not by the devisee, sole PlamtiflF . •' devises, but by his cestui que trusts ag'ainst him, and that they ^ ., ' had apparently no reason for making Sir Henry John- son and his wife parties, except for the purpose of bringing- again into question the very j)oint which had been decided. As to the form of the original bill in the nature of a Form of the bill of revivor, it must not only state the fact of the ^^^^' filing of the original bill, but must also repeat the facts stated in that original bill. This is usually done by stating that the original bill so stated them, and averring that it stated them truly; but perhaps the better way is to state the facts of the case as indepen- dent statements, and then to proceed to state that an original bill was filed making such statements ; by which means tlie pleader avoids the complication of the statements witliin statements which must occur in the former way. It will at first sight apj)ear strange that the facts of the original case must thus be repeated de novo, seeing that it has been already said that the defendant is bound by all the proceedings in the original suit, and cannot make a new defence against the devisee, nor dispute the decree if any has been made. It would seem as if, under these circumstances, the truth or falsehood of the case made by the original bill were immaterial, and that all that need be averred in the reviving bill is the institution, right or wrong, of the original suit, its abatement, and the title of the new plaintiff to revive. And this reasoning Avould be true in the case of an heir, executor, or administrator, who takes by operation of law, and on whom therefore the right devolves of supporting the claims of the testator or intestate, as mere claims, without reference to their K V. 130 Of Revivor hy I. Where a validity; and accordingly a simple bill of revivor devises?" ^ never avers the truth of the facts stated in the original f ' bill. But, as has been already shewn from the pas- sage in the Equity Cases Abridged (^), a mere claim is not regarded as a subject for assignment, either inter vivos, or by will ; and therefore a plaintiff, who stated merely that his testator was prosecuting a claim, and had devised to him the benefit of that claim, would shew a bad title on the face of his bill, and lay that bill open to a demurrer. He must allege and shew that his testator had a valid claim, which by means of the devise would have devolved on him, although there had been no suit pending, and then he will be in a situation to ask for the benefit of the suit which the testator had commenced for enforcing that claim, but which had been interrupted by his death. And though these averments, like all other statements in a bill, re- quire to be admitted or proved, yet they need no fresh admissions or proofs, but may be sustained on the answers put in, or the evidence entered into, or the decree orders or reports made, in the original suit. For this purpose the bill in question must proceed to state all the proceedings Mdiich have been had in the original suit, including the decree, if one has been pronounced. It must then state the abatement and the manner in which the property has become vested in the new party. It must charge that the new party is entitled to revive the suit, and call for an answer in the usual way. It must then pray that the suit may be revived, and if there has been a decree, that the plaintiff may have the benefit of it, or that the same decree may be made in his favour {i), {h) 1 E. Ca. Ab. 2. p. 73. For a precedent of such a (?) Vide Clare x.Wordall, l"0(i, bill, see the Appendix, No. XL 2 Vern. 548 ; and Ld. Red. ed. 4, Supplemental Suit and Decree. 131 All the original defendants will be necessary parties I. Where a sole Pla' devises. to the new bill, being- all equally interested in the ^°'^ Plaintiff change of a sole plaintiff. The heir at law of the devisor must also be made a party defendant, in order ^'^'''^^' that he may have an opportunity of questioning the validity of the devise, if he tliinks ])roper (Ji). It has been already stated, that although the new Defence. party is obliged to put the whole case in issue afresh in order to make out his title to relief, yet the defendants cannot contravene this case further than they have al- ready done by their answers to the original bill. They ought therefore, in their answer to the reviving bill, merely to refer to their former answer so far as regards the original statements ; but as to the additional mat- ter they are at full liberty to put in such answer as they may be advised. If the answers do not admit the plaintiff's title to Subsequent revive, he must reply and enter into evidence to prove proceedings. the facts subsequent to the abatement ; and after pub- lication passed he must set down the revivor suit for hearing. Until the decree for revivor has been pronounced, the revivor suit is a distinct suit from the original or abated suit, and up to that decree is conducted in the same manner as any other original suit. II. When the devisor is a defendant. — The same 11. Where a rules which apply in favour of the new party, being a ^^^^"''ant ])laintiff, apply against him when he is a defendant. He is bound by his predecessor's defence, when he succeeds to a defendant's interest, as much as he takes advantage of his predecessor's proceedings, when he succeeds to a plaintiffs interest; and if a decree has been made in the cause, the devisee of a defendant {k) 1 E. Ca. Ab. 2. K 2 132 Of Revivor by II. Where a Defendant devises. Supplemental bill in nature of bill of revivor. cannot question that decree, for otherwise he would be in a better condition than the heir, whereas the hceres natus is favoured rather than the hceres factus (J). The original plaintiff therefore in this case files a bill referring to the original bill, but without putting the facts of the case in issue {m), there being no necessity for his filing an original bill, because he has already made out his title to relief against the new defendant's predecessor, and can therefore continue the suit from the point where it abated. But he must put in issue the defendant's succession to the interest ; and, as in the last case, pray for revivor of the suit, which revivor will be granted, not on mere order, because there is new matter to be litigated, but by a decree upon the supplemental matter. Such a bill is in fact a supplemental bill, but, from its praying revivor, it is called a supplemental bill in the nature of a bill of revivor (/z)- Lord Redesdale says(o), " If the death of a ;;a?-^y whose interest is not determined by his death, is at- tended with such a transmission of his interest, that the title to it, as well as the person entitled, may be litigated in the Court of Chancery, as in the case of a devise of real estate, the suit is not permitted to be continued by bill of revivor. An original bill, upon which the title may be litigated, must be filed, &c." It is evident however that his Lordship is here speak- ing only of a party plaintiff, for in a former pas- {l) Minshull v. Mo/nni, 1711, 2 Vern. 672. (m) In Woods v. Tf'oor/.v, 18:59, 10 Sim. 197, a plaintiff filed a bill, purporting to be a supplemental bill in nature of a bill of revivor, against a defendant's devisees, in which he put the original facts in issue ; i. e. he stated them as state- ments of the original bill, and also alleged the truth of such statements. With deference, it is submitted that this was unnecessary, if not wrong. He did not however interrogate to them, but merely asked whether the bill did not so state them. (u) 3 Atk.217. (V;) Ld.Red. cJ. 4, p. 71. Supplemental Suit and Decree. 133 sage (p), wlien speaking of the interest of a defendant ii. Where a becomine: vested in another person, " as in the case of ?^^5°*^*°*^ o _ ' , _ devises. alienation by deed or devise," liis Lordship says, that ^ , ' " tlie defect may be supplied by snj)pleniental bill, whether the suit is become defective merely or abated as well as defective ;" and he adds, " in all these cases, if tlie suit has become abated as Avell as defective, the bill is commonly termed a supplemental bill in the nature of a bill of revivor, as it has the effect of a bill of revivor in continuing the suit." It need hardly be added that a supplemental bill in tlie nature of a bill of revivor is very different from a bill of revivor and supplement, although His Lordship says {q) that this latter sort of bill may be necessary in case of " a devise under certain circumstances."' The latter bill, how- ever, is, as we have before stated, merely the union of two bills, viz. a bill of revivor and a supplemental bill, and is used where there is defect independently of the abatement, and which cannot be cured by mere revivor, while the former sort is used where the abatement and defect together form one cliain of events to be brought before the Court. If a defendant devises his interest and dies before he Where a de- has appeared to the original bill, the suit having, as we before a i^^'*^* have before observed, never existed as against him, ance to original cannot be said to have abated by his death, and there- ' ' fore cannot be revived against his devisee. The imperfection has been inherent in tlie suit from the beginning, and the case therefore falls within the description of imperfections mentioned in the second chapter of this treatise, and is remedied in the manner there pointed out. The supplemental bill in tlie nature of a bill of Form of the bill. ij)) Ld. Red. ed. 4, p. G8. (y) Ibid. p. 70. 134 Of Revivor hy II. Where a revivor must state the filing of the original bill, and Defendant -^^ appears that it must also state so much of the con- devises, t^i * . ^ tents thereof as will be necessary to make an intel- ligible story in the new bill. It may sometimes be necessary for this purpose to state nearly the whole of the contents of the original bill. Thus in Woods x. Woods ii-), Sir Lancelot Shadwell, V. C, allowed the repetition, in a supplemental bill in the nature of a bill of revivor, of nearly all the statements in the original bill, saying that the story could not have been made intelligible without them. The plaintiff however ought not to aver the truth of the original statements, because, as Master Dowdeswell said in the above case, this has the effect of putting those statements in issue. In general the rules as to this point are the same as those already given in the second chapter of this trea- tise, as to the species of supplemental bills treated of in that place. The bill in question must then state the proceedings which liave been had in the cause, down to the time of the abatement. It must state the abatement and the transmission of interest to the new defendant. It must charge that the plaintiff' is entitled to revive the abated suit against the new defendant, and call for an answer in the usual way ; and if the original defen- dant died before answering the original bill, the new bill must also call upon the new defendant to answer the original bill. It must then pray for a revivor of the original suit (5). Amendment of If a plaintiff wishes to amend his case after the de- !oL°"^"*' fendant has died and devised his interest, it is said that he cannot amend his original bill, but must insert such amended statements in his supplemental bill in nature (r) 1839, 10 Sim. 197. (.v) For a precedent of this sort of bill, see the Appendix, No. XII. case. Supplemental Suit and Decree. 135 of a bill of revivor. Thus in Woods v. Woods{t), where II. 'SMiere a the plaintiff filed a supplemental bill in the nature of a J^^^^^^"^^^"* bill of revivor against the devisee of a defendant, and '^ « ' in it stated several passages from the defendant's answer, and founded charges upon them, it was held that these statements and charges were not imperti- nent, because he might certainly have made them as against the original defendant by amend\nent of the original bill ; and as the devisees are not called upon to ansAver the original bill, and have no office copies of it, there is no other way of amending as against them than by introducing the amendments into the supplemental bill. In this case it is apprehended that the new bill ought to be filed against all the defendants against whom the orio-inal bill would have been amended. With regard to the parties to the bill in question, Parties. all the plaintiffs, if there were more than one, must for the same reasons as were given in the case of a simple bill of revivor, be made parties to a supple- mental bill in the nature of a bill of revivor, either as co-plaintiffs or as defendants ; but of the defendants, only the devisee of the original defendant need be made a party to the new bill, the other defendants not being aftected by the abatement and devise (u). The heir at law of the devisor must also be brought before the Court by the new bill, in order that he may have an opportunity of disputing the validity of the devise (.r). Until the decree for revivor(y) has been pronounced, the supplemental suit is a distinct suit from the abated suit, and will be conducted in the same way as any other suit. (0 1839, 10 Sim. 197. (y) For the form of a decree for (m) 3 Atk. 217. revivor, see the Appeadix, No. (x) 1 E. Ca. Ab. 2. XIII. 136 Of Revivor hy Supplemental Suit and Decree. III. Where a III. If the devisor was a co-plaintifF, the remaining Co-Plaintiff co-plaintiffs either ioin with the devisee in revivine: devises. . . ^ , ' the suit, or bi-ing- him before the Court as a defen- dant. In the first case, it is apprehended, they must all join in bringing an original bill in the nature of a bill of revivor, as in the case of a sole plaintiff; in the latter case the surviving co-plaintiffs proceed as if the devisor had been a defendant. Where one of two plaintiffs devised to his co-plain- tiff, and also made him executor, the latter was ordered to bring a bill of revivor as executor, and also an original bill in the nature of a bill of revivor as devisee {z). As however an executor may, as we have before seen, bring a new original bill instead of a bill of revivor, if he prefers it, it is apprehended that the original bill in the nature of a bill of revivor would have been sufficient to advance his claim in both capacities, although the simple bill of revivor would not have done so except in his capacity of executor. IV. Where the IV. We have already seen that after a decree in a DecieV^ ^^'^^'^ suit all jjarties, both plaintiffs and defendants, are con- ^ -V ' sidered in the light of plaintiffs. If therefore the abatement, accompanied by the devise, takes place after decree, and a defendant wishes to revive the suit against the devisee, vvhich we have seen he may do after decree, it is apprehended that he must, like any other plaintiff, bring the devisee before the Court by a bill continuing the suit from the abatement, and not putting the case in issue over again ; in other words, by a supplemental bill in the nature of a bill of revivor; and that he must make all the parties to the decree parties to his bill. (r) Huet V. Say and Sele, 1725, 2 E. Ca. Ab. 3 ; Sel. Ca. Ch. 53. 137 CHAPTER IX. OF THE REVIVED SUIT. The abated suit liaving Leen revived either by an Effects of Order obtained on a simple bill of revivor, as in the throri^ghiai case of the interest devolving on the heir or executor, Suit- or by a Decree obtained in a supplemental suit, as -where the interest has devolved on a devisee, we will now proceed to inquire what effects the Revivor pro- duces upon the original suit and the proceedings which have been had in it. After this we will consider what further proceed- ings may be taken in the suit after it has been re- vived, and in what manner and under what conditions they must be taken. I. As a general rule the revivor of a suit has the I. On existing effect of reviving all the proceedings in that suit, and P'°'^^^ "^ss- placing them in the same plight and condition as they were in before the abatement (a). Thus we have seen that where a limited time was On a limited allowed for proceedino; in a suit, such time ceased to ^'™^ allowed A o _' _ for any thing. run upon an abatement occurring. Upon revivor of the suit, however, the time will begin to run again, as from the period when the abatement occurred. Where therefore a defendant had obtained orders for time to answer, and one of the plaintiffs died, and (c) Where, however, the abate- vive that order, because the consent ment arose from the marriage of an bad determined by the marriage, executrix who had been a party to Hampden v. Brewer, IGCC, 1 C. C. an order by consent, the revivor 77. was held, on demurrer, not to re- 138 Of the Revived Suit. Effects of Revivor on the Original Suit. On process of contempt. the suit was revived, and the defendant applied in the revived suit for new orders for time, Lord Eldon said ; " It Avould be very extraordinary, where process against the defendant up to the very point of custody re- mained upon the record, that the consequence of the death of one plaintiff, the suit not abating as to the other, should be that the defendants, though the same identical persons, are to have all the orders for time they originally had ; and that even the survivor \i. e. the surviving plaintiff] cannot have the process of the Court until all the same course of time has run out. The practice cannot possibly be that where the defen- dant has had all the time to which he was entitled, and has got into contempt, the death of one plaintiff purges the contempt as to all the other plaintiffs, and gives a right to all the orders for time again (&)." It is apprehended that nearly the same reasoning would apply to the case of abatement by the death of a sole plaintiff; for no abatement can be a good reason for giving a defendant more time to answer (to say no- thing of the extra time during which the abatement lasted) than he was thought entitled to before. If the defendant's time for answering the original bill has expired before the abatement, the revivor does not give him any fresh power of making a defence to the original bill (c). Where process of contempt, to an order for a Ser- jeant at Arms, has issued before the abatement, it will abate with the suit. If however the abatement has occurred by the death o£ the plaintiff', the process will be revived with the revivor of the suit ; and a receiver may be appointed in the revived cause on the order (b) Falloives v. Williamson,l805, llVes. 30G, 312. (c) TVaieipi v. Wat hill, 1679, Dick. 13. Of the Revived Suit. 139 for a Serjeant at arms in the original cause (d). And Effects of it is apprehended that, in analogy with the cases of thrOrighTal sequestrators and receivers appointed on process, next Suit. considered, the process, although it ought to cease immediately upon the abatement occurring, will never- theless be kept on foot, and that a reasonable time will be allowed to the representative to revive the suit, and thereby save the process from extinction. But it is apprehended that, in analogy with the same cases, if it is the defendant, against whom the process has issued, who dies, the process will not be revived against his executor, with the revivor of the suit. A sequestration against a defendant, whether it be On sequestra- a sequestration upon mesne process, or a sequestra- tion to compel performance of a decree, abates, like other proceedings, with the abatement of the suit ; and this equally whether the abatement be caused by the death of the party issuing the sequestration, or the party against whom it is issued. If it is tlie party issuing it who has died, the sequestration is revived with the revivor of the suit (e) ; and the Court will not, immediately upon the abatement, furn the sequestrators out of possession, but will allow a rea- sonable time for the suit to be revived, and the seques- tration thereby continued (/). But if it is the party against whom the sequestra- tion has issued, who has died, then the rule seems to be different as to sequestrations upon mesne j^rocess, from what it is as to sequestrations to coinpel perfor- mance of decrees. In the former case the process, being personal, dies with the party against whom it {d) Sa//v.GoiB5',1826,l Hogan, 1 Ves. sen. 180. 396_ (/) White v. Hayward, 1752, (e) Hyde v. Forster, 1748, Dick. 2 Ves. sen. 461. i;}2 ; Wharam v. Broughton, 1748, 140 Of the Revived Suit. Effects of has issued, and cannot be revived {g) ; but in the thrOr^hial I'^tter case the sequestration Avill be revived with the Suit. revivor of the suit and of the decree (A). If the de- cree was for a personal demand, the decree, and con- sequently the sequestration, can only be revived against the personal representative (i) ; even though the decree were on behalf of a Charity (k) ; but if the decree was for a demand affecting the real estate of the deceased party, the decree, and consequently the sequestration, must be revived against the heir as well as the personal representative (Z) ; unless indeed the real estate has gone over to some party claiming by a title independent of the deceased defendant, in which case it will of course be discharged from the seques- tration {m). In Gilbert's Forum Romanum it is said that "if the decree be upon a covenant which binds the heir, and the defendant dies, such decree may be revived, (fee, and that when you have revived against the heir and executor, you may also revive the sequestration iqwn motion, if upon coming into Court, they can shew no cause Avhy the decree should not be revived (w)." From this it would appear that when the defendant in con- tempt dies, the plaintiff must not only revive the suit, but also obtain an order on motion to revive the sequestration. It appears however from the words (o) of Lord Hardwicke in Wharam v. Broughton, that no {g) Burdett v. Rockley, lti82, Bland, 1675, 3 Swan. 270 ; Caer- 1 Vern. 58; Hawkins v. Crook, mart/ten v. Haivsoti, 17'6l, 3 Sv;an. 1747, 3 Atk. 594. 294. (h) The same cases, and Biiyh (I) Derby v. Ancram, no date, V. Darnley, 1731, 2 V. W. 621 ; cited 2 C. C. 46; Burdett \. Rock- Hyde V. Greenhill, 1746, Dick, ley, ull supra ; Hyde m. Greenhill, lOG ; and Wharam \. Broughton, nhi supra. 1748, 1 Ves. sen. 180. (m) Athollv. Derby, 1672, 1 C. (i) The same cases. C. 220. {k) I'niv. Cull.y. Foxcro/t, 16S2, (n) For. Rom. SC. 2 C. R. 244 ; scd videWitham v. (o) 1 Ves. sen. 185. Of the Revived Suit. 141 such step is necessary ; but that the mere revivor of Effects of the suit asfainst the heir and executor will be sufficient ll'^^'V!:*'.'' ?" , ^ _ _ the Original to revive tlie sequestration for enforcing the decree. Suit. A receiver appointed upon process ao-ainst a defen- ^ ' . /. . , TP 1 On a receiver- dant will be dismissed upon an abatement. If, how- ship api)ointed ever, the abatement is caused by the death of a plain- °" Process. tiff, the receiver will not be dismissed immediately, but a reasonable time will be allowed for reviving the suit and thereby reviving the receivership. But if the abatement is caused by the death of the defendant, the receiver will be dismissed at once, because a subsequent revivor against the defendant's repre- sentative M'ould not have the effect of reviving the receivership (j9). When subpoenas to hear judgment have been served. On subpoenas and the suit abates, the subpoenas will also abate. If ment!"^^"'^' however the suit abates by the death o£ a plaintiff, the defendants remaining the same, the original subpoenas will be revived with tlie revivor of the suit(/2). But if the suit abates by the death of rt defendant, the sub- poena served on that defendant will not be revived with the revivor of the suit(7'), but a new subpoena must be served on his representative. The subpoenas served on the other defendants, however, will of course be good(s), the suit having never abated as to them. When an appeal abates in the House of Lords, the order for revivor is obtained as of course, and a fresh summons is unnecessary (0- We have seen that an injunction, not being a per- On injunc- petual injunction, granted before abatement, will na- turally drop upon the abatement taking place. It {p) Woods V. Creaijhe, 1824, 1 13; Reg. Lib. A. 1S30, fol. 3; sed Hogan, 174. vide a doubt in Byne v. Potter, (?) Bray v. Woodran, 1821. 6 1800, 5 Yes. 305. Madd. 72. («) 1 Smith, Ch. Pr. 403. (r) Cockburn v. Raphael, i Sim. (/) Byne v. Poffei', uhi supra. 142 Of the Revived Suit. Effects of will however be revived with the revivor of the suit ; Revivor on ^^^^ where the abatement is caused by the death of a the Original •' Suit. sole plaintiff, the Court will, before it permits the in- ' junction to drop, give the representatives of the de- ceased plaintiff notice that the injunction will be dis- solved unless the suit is revived in a given time (m). On a defence In general the representative of a deceased defen- alreadyputin. jg^^j- }g bound by the defence put in by such deceased person to the original bill, tlie effect of the revivor of the suit being to revive that defence also ; but there is an exception to this rule in the case of a defendant having put in a plea to the original bill and dying before the plea is argued. In a case where this oc- curred, and, after the suit had been revived, the plea came on to be argued, the Court refused to hear it and ordered the representative to plead de novo (x). The reason given for this in the note to the above case is that " the representative may have a plea to defend him without denying the merits of the case. For if an executor or administrator can truly plead plene administravit on a scire facias at law (which must always issue in such case) the execution can only be de bonis testatoris quando acciderint. But the answer of a testator in a Court of Ecpiity will bind an executor who has assets." If however the plea has been argued and overruled before the abatement, the new defendant cannot, after revivor, plead the same plea over again (?/). On an appeal. If an appeal is pending in the House of Lords, and the House reserves judgment on a certain point until an account is taken, and after the account is taken. (?«) Stuart \\Ancell,\7B7, 1 Cox, (a) Mickletkwaite v. Calverley, 411, where the time given is said 1735, Ca. temp. Talbot, 3. to be a vv-eek generally; vide etiam, (y) Samuda v. Furtado, 1790, 1 Hare, 622. 3 Bro. C. C. 70. Of the Revived Suit. 143 but before the appeal is brought on again, the suit Effects of abates, a revivor of' the suit below will have the effect th?Or[ginal of reviving the appeal also (2^). ^"''^- As to the costs of that part of the suit which took Oncosts of the place before the abatement, it appears that when the original suit. decree gives the costs against the representative of the deceased party, he is liable to the costs of the deceased party as well as to his own costs ; but that when the decree gives the costs i7i favour o( the representative of the deceased party, he is entitled to the costs of such proceedings only as have been had since the revivor. Thus in Troward v. Bingham (a) Sir Lancelot Shad- well, V. C, said, " that if the executor of a deceased plaintiff did not adopt the original suit, he was not liable to the costs thereof;" thereby, it is apprehended, implying, that were he to adopt his testator's suit, he would be liable to the costs thereof. But where a plaintiff revived a suit against the heir of a deceased defendant, and the bill was afterwards dismissed with costs, it was held that the heir should not have the costs of his father before the revivor, be- cause they died with the person (&). It is true that in another case (c), where a female plaintiff married pendente lite, and the husband and wife revived, and obtained a decree with costs, they were held entitled to the costs of the whole suit, (ex- cepting only the bill of revivor), and not costs from the revivor only. But the reason of this discrepancy appears to be, that in the case of abatement by death (c) Lake v. Mason, 1746, 5 Bro. abandoned. Warner v. Armstrong, P. C. 278, 280. 1831, 4 Sim. 140 ; Lewis v. Arm- (a) 1831, 4 Sim. 483. Where, strong, 1834, 3 Myl. & K. 69. however, a plaintiff gave notice of a {b) Lloyd v. Powis, 1671, Dick. motion, and died before it was 16. made, and his executors revived, (c) Durbanie v. Knight, 1685, 1 the Court refused to give the de- Yern. 318. fendants the costs as of a motion 144 Of the Revived Suit. Effects of the i)art.y causing the abatement was no longer before thTorighTal ^lic Court, but that in tlie case of abatement by mar- Suit. riage such party continued to be a party to the suit notwithstanding the abatement. And where a plaintiff had obtained orders for costs aaainst the receiver in the cause, and died, and the suit was revived by a creditor against the executor of the plaintiff, it was held that the executor was entitled to the costs, the reason given being that the receiver was an officer of the Court. In this case, too, it must be observed that the orders for costs had been made before the plaintiff's death (^Z). The general rules, however, above given as to the costs do not apply to the case of an abatement occur- ring after the decree giving the costs has been pro- nounced. In such case the fate of the costs having been decided before the abatement, cannot be altered by the abatement ; and accordingly we have already seen that if it becomes necessary to revive any material part of the decree, that part of it which gave the costs will be revived with the rest of it. On proceedings Sometimes proceedings are inadvertently taken after l^'JXrlhe f^n abatement, before the plaintiff becomes aware of abatement the abatement. As the effect of an order or decree t'he JTvh'or. for revivor is merely to put the suit in the same con- dition as it was in at the time of the abatement, it is obvious that the plaintiff does not obtain by such order or decree the benefit of the proceedings taken subse- quently to the abatement. It is conceived that in this case he ought, in his new bill, to state the proceedings subsequent to the abatement, as supplemental matter, and pray, besides revivor, that he may have the same benefit of those proceedings as he would have had if (rf) Betagh v. Concannon, ISS^), 1 L. & G. t. Plunk. 355. Of the Revived Suit. 145 tlie suit had been previously revived. And if the de- Effects of fendant consents, or perhaps without consent if it ^^^11'°'" ?° , , , . . , , the Original seems reasonable, it is presumed that a decree to that Suit. effect will be made. ' II. We will now consider the further proceedings in ii. On further the revived suit. proceedings. Where the abatement is caused by the death of a Amendment. sole plaintiff, and his representative becomes tlie new plaintiff, he may take the same proceedings in the cause as the original plaintiff might have done. Thus the new plaintiff may amend the original bill ; and in a case where the new plaintiff did so, he was held en- titled to issue an attachment against the defendant for not answering the amended bill (e). Where how- ever it is a defendant who has died, it appears that the original plaintiff must, if he wishes to amend, bring forward his amended statements in the new bill and not in the original bill, because the new defen- dant has no copy of the original bill {f) ; and in this case it is apprehended that he must make all the original defendants parties to the new bill. After revivor, if evidence is gone into with respect Interroga- to the revived suit, it appears that the plaintiff's in- *°"^^- terrogatories ought strictly to be intituled in both suits, namely, the original suit and the suit for re- vivor. But it seems to be not absolutely irregular to intitule them in the revived suit; that is, in the suit, such as it stands after the abatement and revivor have taken place. Thus where a bill was filed by a plaintiff, Jones, against two defendants. Smith and Turner, and on Smith's death the suit was revived against Smith the younger, and a commission issued for the examination (e) Philips V. Barbie, l"4r;, {f ) Vide Woods v . Woods ,l^Z'3 , Dick. 98 ; Ld. Red. ed. 1, p. 78. 10 Sim. 197. L 146 Of the Revived Suit. Eftectsof of witnesses, intituled ^' in a cause wherein Hugli throriginal Jones is plaintift', and Thomas Assheton Smith (since Suit. deceased) and William Turner are defendants, by ori- ginal bill, and wherein the said Hugh Jones is phiin- tiflF, and Thomas Assheton Smith the younger is de- fendant, by bill of revivor ;" and the plaintiff's inter- rogatories were intituled " in a cause wherein Hugh Jones is plaintiff, and Thomas Assheton Smith and William Turner are defendants," Sir J. L. Knight Bruce, V. C, refused a motion to suppress those de- positions for irregularity on the ground of their dif- fering in title from the commission, observing that there was no substantial difference between the titles, and no substantial inaccuracy in the latter title ; — that the original and revived suit constituted but one and the same cause, although there were two bills in the cause ; and that if the cause is single, it cannot be necessary to mention the plurality of the bills in the title to the interrogatories. His Honor however added tliat he was not entirely free from doubt on the point, and intimated that the case might be different if the abatement had occurred by the death of a plaintiff" or the marriage of a female plaintiff (especially if on the death of a plaintiff his inteiest had severed and vested in other persons,) or if the abatement had occurred after a decree in the suit (g). If the interrogatories are exhibited by defendants to the original bill who are no parties to the revivor suit, they may be intituled in the original cause only. If however such defendants have joined with the new defendants in the commission to examine witnesses, or have consented to the order for such commission, the interrogatories and depositions must be intituled in d/) Jones V. Smil/i, 1842, G Jurist, 1078. Of the Revived Suit. 147 both suits, following- the title of the commission, or Effects of they will be suppressed {h). f^^'orl hTal If the interrogatories are exhibited by the new de- Suit, fendant alone, it is apprehended that they ought to be ' intituled in both suits. Where in the title of the interrogatories a bill, which was in fact a bill of revivor only, was called a supple- mental bill, the plaintiff was held not entitled to read the depositions taken under such interrogatories ; but he was not ordered to pay the costs of such depositions until it should appear whether use could be made of them in taking the account before the Master (?), The revived suit will be carried on to a decree and Decree, &c. subsequent proceedings, in the same manner as any suit which has not abated. Where a suit is revived after decree, if the revived Any party may ... , J 1 -ii 1. -1 i. • • prosecute the suit is not proceeded with by the party reviving, any revived suit other party, who might have prosecuted the decree if after decree, no abatement had occurred, is at liberty to proceed with it upon the revivor obtained by the former party {k). It has been said, however, that if the abatement Q«f«-e whether happens after a decree which contains some specific gyij. ^^^^ ^^ direction, (as that the defendant shall pay a certain set down for sum of money,) but before that specific direction has cause a specific been complied with, such decree cannot be carried into direction in the „ , , , -11 • 1 . original decree eriect by the mere order to revive, but the revived suit has not been must be set down for hearing in order to have a fresh comphed with .- decree respecting such matter as is left unperformed (l). It is apprehended however that this is not the practice in the Court of Chancery, although it may have been so in the Court of Exchequer. {h) Pritchard v. Foulkes, 1839, {k) Burncy v. Morgan, 1823, 1 2 Beav. 133. S. & S. 358. (i) Onye v. Truelock, 1828, 2 (/) Harries v. Johnson, 1839, 3 Moll. 31, 38. Y. & Coll. Ex. Eq. 583. l2 148 CHAPTER X. OF THE CESSATION OF INTEREST UPON THE DEATH OF A PARTY. Death of a Corporation Sole. V . Original bill in the nature of a supple- mental bill. It has been stated that where a party dies, and his interest in the subject matter of the suit does not sur- vive his death, but the property, instead of devolving on a ])erson claiming- under him, goes over to a stranger claiming by an independent or collateral title, the im- perfection which has taken place in the suit is irreme- diable. For there is no privity between the person who lately represented the interest in question, and the person who now represents it, so as either to entitle the latter to the benefits, or to render him justly subject to the liabilities, of the original suit. The suit there- fore, strictly speaking, is absolutely terminated with respect to the deceased party, and can no longer be proceeded with. Such is the case of a Rector, Bishop, or other Cor- poration sole, suing or sued in respect of his prefer- ment, and dying while the suit is pending ; — the only redress which can be had by or against the new rector or bishop, must be obtained by filing an entirely new bill and commencing de novo. As, however, in consequence of the interests repre- sented 1)y the old and new parties being the same, the proceedings in the new suit will necessarily be more or less identical with those which have already taken place in the former suit, and it is desirable to save the expense and delay of repeating them, the plaintiff may, Of the Cessation of Interest upon the Death of a Party. 149 if he pleases, instead of making the new bill wholly Death of a original, notice the former suit, and pray that his bill y°]e^°" '"" may be taken as supplemental to the first bill, and ^ * ' that he may have the benefit of the proceedings in the former suit. A bill filed with this object is called an original bill in the nature of a supplemental bill. The bill in cpiestion being filed for the purpose of Form of the putting in issue, not only the fact of the filing of the original bill, but also the statements in that original bill, ought properly to repeat those statements, thougli it more usually evades this by setting out the original bill at length, and averring that the contents of it are true. The Courts however seem sometimes to have been content with even less than this, and to have permitted the original facts to be put in issue in a very questionable manner, and even to have dispensed with their being put in issue at all, thus allowing a supple- mental proceeding to have the effect of an original one for this purpose. Thus in The Attorney- General y. Foster {a) ^ where a supplemental information was filed against parties, against whom it was held that an original information in the nature of a supplemental information ought to have been filed; that is, against whom the case ought to have been put in issue over again ; Sir James Wi- gram, V. C, held that the case was sufliciently put in issue by the supplemental information to enable the new parties to enter into the merits of the original case. In this case the supplemental information merely stated the filing of "an original information, stating and charging as therein was stated and charged, and praying &:c.," setting forth the whole prayer. Al- though this was allowed to have the effect of an original information in the nature of a supplemental (o) 1842, 6 Jurist, 1032 ; vide etiam S. C. 2 Hare, 81. 150 Of the Cessation of Interest Death of a information, yet it appears that His Honor made that SolT°'^ ^"'^ decision unwillingly, and not without great doubts. ^ V ' It is apprehended that the legitimate course would have been to put the whole case in issue against the new parties, de novo, at least by averring that the statements and charges were true, if not by setting them out at length besides, as independent statements. After stating the former case and the filing of the original bill, the new bill must relate the proceedings which have been had in the original suit, and the event which has determined the interest of the party by or against whom the former bill was exhibited, and the manner in which the property has gone over to the successor. The new matter, however, must not be stated "by way of supplement," because the new bill is not a supplemental bill, but a new original bill. It must then shew the ground upon which the Court ouaht to erant the benefit of the former suit to or against the successor (Z>) ; and it must call upon the defendant for an answer in the usual way. The prayer must be for a decree adapted to the case made by the new bill, and also, as we have said, that the new bill may be considered and taken as supple- mental to the first bill(c). Benefit of for- To such a bill, says Lord Redesdale (d), " a new de- mer proceed- fgi^ge may be made, the pleadings and depositions [in the former cause] cannot be used in the same manner as if filed or taken in the same cause ; and the decree, if any has been obtained, is no otherwise of advantage than as it may be an inducement to the Court to make a similar decree."" In another passage {e) His Lordsiii]) says that " in general by an original bill in the nature (i) Ld. Red. ed. 4, p. 99. {d) Ld. Red. ed. 4, p. 73. (c) For a precedent of such a (p) Ibid. p. 72. bill, see the Ajipendix, No. XIV. upon the Death of a Party. 151 of a supplemental bill the benefit, of the former pro- Death of a ceeding-5 can be obtained." Upon these passages Lord soTi!"'""''"" Eldon makes the following remarks : " With respect ^ . ' to the [last quoted] passage, in which it is supposed there is some obscurity, I may say, upon the authority of Lord Redesdale himself, that it is not very easy to be removed, nor capable of being removed by stating any judgment authorising that passage. The propo- sition that in general by an original bill in the nature of a supplemental bill the benefit of the former pro- ceedings may be obtained, is properly so restrained." Again ; — " In the distinction stated between an original bill in the nature of a bill of revivor and an original bill in the nature of a supplemental bill, Lord Redes- dale does not say that in the latter the pleadings and depositions in the first cause cannot be used ; but that they cannot be used in the same manner ; and the diffi- culty arises upon the negative proposition, without explaining what is the precise idea that belongs to it. These passages do not determine the sense of the words the 2)roceedings upon the former hill. You must endea- vour to determine to Avhat stage the cause must have gone, to entitle you to say there are proceedings the advantage of which the second bill may draw to itself, as Lord Redesdale expresses it. But the proposition so put comprehends every stage of the cause, as fur- nishing the question, between the answer and the final decree obtained and executed ; and a general doctrine of this sort does not enable you to say what the Court is to do in every intermediate case between the first and the last stages of the cause, where the interest of the plaintiff or defendant is absolutely gone (/)." Mr. Daniell however suggests that there is no obscurity iu Lord Redesdale's passages; that the confusion has (/) 9 Yes. 54, 55. 152 Of the Cessation of Interest Death of a arisen from erroneously considering the bill in ques- Sok.*^^'* '°" ^^°" more in the light of a supplemental bill than of ^ < ' an original bill ; that Lord Kedesdale's meaning is, " that if you wish to use the pleadings and depositions in the first cause as evidence in the second cause, you must obtain an order (^) to do so, as in the ordinary case of reading the pleadings and depositions in one suit, in another ; and that when they are tendered as evidence, their admissibility will depend upon the same rules with regard to privity &c. as have been already (Ji) pointed out with regard to the admissibility of the pleadings and evidence in one cause, in another where the suits are distinct ;" and that the effect stated by Lord Redesdale as to the decree in the first cause " is precisely the effect which a decree in one original cause would have in pari materia in another cause ; whereas the eff'ect of a decree in a suit purely supple- mental would be to bind those parties who are affected by it by means of their privity of interest (i)." Parties. As to the parties to the new bill ; — if the deceased rector or bishop was a sole plaintiff", of course the same persons will be defendants to the new bill filed by his successor, as were defendants to the original bill. If the deceased party was a co-plaintiff', or a defendant, the original plaintiffs will bring his successor before the Court by the new bill, as a defendant, and the question as to what original parties must be parties to the new bill, will, it is apprehended, be decided by the same rules as have been already given with respect to the bills treated of in the second chapter (A). {g) But in Upjohn v. Upjohn, same parties. 1841, 4 Beav. 246, the benefit of {h) 2 Dan. Ch. Pr. 427. the former proceedings was given (?) 3 Dan. Ch. Pr. 190, 191.^ by a decree, and not by an order on (A) F/V7eLd. Red. ed. 4, p. 72; ]>etiiicn. Vide Appendix, No. XV. where it is said that the bill, as to The order seems to be only where the other parties, and the rest of the two Ev.its are between the the suit, is M'/:;>/c»?fw/«/ merely. upon the Death of (i Party. 153 We must here notice some exceptions to the above Exceptions rule, in wliicli, although the interest of the party dying ^ " ^ ^ " ^' , dies with liim, and another party not claiming under Administrator him is put into his place, yet the Court permits t\^Q ^'^ f'onis non. original suit to be continued. Tliis occurs where the deceased party has been suing or sued in autre droit. Where, for instance, a party suing or defending in the character of a personal representative dies, and liis personal representative is not the personal represen- tative of the original testator, but an administrator de bonis non is appointed, such administrator de bonis lion does not claim his interest in the matter under the testator's first personal lepresentative, but by a title independent of him, and therefore according to the above doctrine the suit ought to be irremediably gone, as in the case of the rector or bishop. But in- asmuch as the beneficial interest remains unaltered by the death, and the riglits and liabilities attached to such interest remain the same, the new administrator is allowed to be put in the place of the former per- sonal rejjresentative, as much as if he were the execu- tor of such first representative, and the representation had descended lineally to him. Such administrator de bonis non, therefore, proceeds or is proceeded against in the suit l)y simple bill of revivor (Z), the suit being supposed to have become abated. In the above case of Owen v. Curzon, the reason given is, that by tlie statute 17 C. 2, c. 8, an admi- nistrator de bonis non may revive a judgment obtained by the first administrator, and that by analogy a Court of Equity follows the same rule in respect of a decree; which seems to imply tiuit the rule only ap- (/) Oxcen V. Curzon, }G'J\, 2 which, on searching the Registrar's Vern. 237, Raithby's cd. The Book, appears to have been the note, however, says that the de- case. Vide Reg. Lib. 1691, B. murrer in this case was allowed ; fol. 76. 154 Of the Cessation of Interest Exceptions to the Rule. Executor acting by mistake. Committee of lunatic. plies to cases where a decree has been obtained. But the case of Huggins v. The ITork Buildings Com- pany {m) seems to extend the rule to all cases, -whe- ther a decree has been obtained or not. The rule seems to be the same where a person has acted as executor under a mistake, and the true exe- cutor succeeds hira in the administration of the estate. Thus where a party filed a bill as executor under a will, and obtained a decree, and a subsequent will was discovered appointing another party executor, who also claimed as a devisee under such subsequent will ; and the latter party filed an original bill in the nature of a bill of revivor to have the benefit of the former de- cree ; Lord Manners, C, said, " As a decree on the wrongful executor's bill in favour of the defendants would have availed them against the present plaintiff* as far as he was executor, to the same extent, on the other hand, he must be entitled to revive." His Lordship, however, allowed that there was no privity between the false and the true executor as to what the latter sought as devisee, and dismissed the rest of the bill(n). Where the committee of a lunatic dies, and a new committee is appointed, such new committee claims independently of the first committee. Nevertheless the parties are not put to the trouble of an original bill, but it appears that in the case of a plaintiff, the first committee's suit may be continued by the new committee, by merely putting in issue his succession to the first committee's situation, by supplemental bill (o) ; and in the case of a defendant, an order will be made on motion that the new committee be named as such in all future proceedings {p). (m) 1740, 2 E. Ca. Ab. 3. (o) 1 Dan. Ch. Pr. IIG. (n) Gojiffh V. Latotiche, 1819, (p) Lyon v. Mercer, 1823, 1 2 Moll. 40(;. Sedvide2B\i.56G. S. & S. 35(;. upon the Death of a Party. 155 Where a feme coverte sues by lier next friend in re- Exceptions spect of her separate property, and he dies, it appears that she may nominate a new next friend without Next friend, filing- any new bill. In Barlee v. Barlee(q) it was ordered that the feme coverte should name a new next friend within two months, or tluit the bill should be dismissed with costs to be paid out of the fund in Court. Where the assignees of a bankrupt or insolvent Assignees of , 1 , ,. ,. .^ 1 . bankrupt or debtor die pending a suit, and new assignees are ap- insolvent pointed, such new assignees claim independently of debtor, the former assignees. Yet it is not necessary for a new suit to be commenced by or against such new as- signees. If they are plaintiffs, no fresh bill of any sort is wanted, but It is only necessary to substitute their names for the names of the former assignees in the subsequent proceedings (r) ; whilst, if they are de- fendants, a new bill indeed is required, but only a supplemental bill, putting in issue their appointment in the place of the former assignees (s). In this place may be noticed the peculiar case of aso/e Sole plaintiff plaintiff instituting a suit on behalf of himself and the g^-^ ^^ere his rest of a class of persons, as creditors or legatees, and representative on his death after decree his representative declining proceed with it to proceed in it. In this case it is almost a matter of on his death. course to permit another person, reported by the ((/) 1822, 1 S. & S. 100. Vide also Mendham v. JRoMmon, 1833, etiam Askew v. Peddle, 1838, 2 IMyl.&K. 217. Jurist, 884 ; where the next friend («) Vide Anon. 1739, 1 Atk. 88. of infant plaintiffs died. In this case, which was previous to (r) G G. 4, c. 16, s. 67, and 7 the above Acts of Parliament, the G. 4, c. 57, s. 26. It has been assignees were plaintiffn. But it decided that these Acts apply only is apprehended that if the assignees to the case of assignees plaintiffs, were allowed to proceed by supple- and not of assignees defendants, mental bill only, as plaintiffs, a Bainhridge v. Blair, 1832, Young fortiori they might have been pro- Ex. Eq. 386, overruling Gilchrist ceeded against as defendants, by V. lien ten, 1832, ibid. 38", n. See that method. 156 Of the Cessation of Interest Exceptions Master to be one of that class, to take up the proceed- , to the Rule. ^ j^gg (^) . and it appears that although the new plain- tiff was not even a party to the former bill, — much less a successor to the former plaintiff's interest, — he still need not commence de novo by original bill ac- cording to the general rule above given, but need only put in issue the supplemental matter shewing that he is one of the class in question. " In this case," says Sir John Leach, V. C, " the plaintifis having been permitted to file the supplemental bill on behalf of themselves and all other persons of the same class, appear to me to be necessarily entitled to the same decree to have the benefit of the proceedings in the suit, as the representatives of the original plaintifl' would have been entitled to, if they had proceeded by bill of revivor." It must be observed however that " as the repre- sentative of the deceased creditor has an interest in the prosecution of the suit, in respect of the costs already incurred in it, no other creditor can file the supplemental bill without notice to such representa- tive. The proper course is for the creditor desiring to prosecute the suit to move for liberty to file a sup- plemental bill if the representative of the deceased plaintiff do not revive within a limited time, and to serve such order on the representative {u) ;" and also, it appears, on the defendants {x). And if any party wishes to make any objection to such process, it ap- pears that he must do so by opposing the motion, and not by answer, plea, or demurrer, to the supplemental bill iy). After a creditor has been admitted by order to come (0 Houlditchv. £)oneffall,lS23, (x) Houldiich v. Donegall, uhi 1 S. & S, 491. supra. (u) Duron v. Wi/ait, 1819, 4 {y) Ibid. Madd. 392. vpon the Death of a Party. 157 in before the Master, and prove his debt and pay his Exceptions ., . . ii i 1 • . '^i 1 i 'to the Rule. contribution, it appears that he is entitled to revive x. the suit if it abates (z), on the principle, it is appre- hended, that he has thereby become a party to, and an actor in, the suit. And, after decree, the present practice of the Court is to allow any creditor to pro- secute the decree by petition merely. But this does not render the supplemental bill above-mentioned irregular, if the creditor prefers it (o). In this place may be also mentioned the case of a Wife and cLil- reference to the Master to approve of a settlement on Jfe^re^ncrto a wife and her children. In this case if the wife dies the Master to before the Master has made his report, the children, set^tlement. although not previously parties to the suit, have, it appears, a right to continue the wife's suit by supple- mental bill, instead of being driven to commence de novo by an original bill in the nature of a supplemen- tal bill {b). Similar to the case of the death of a corporation Death of a sole is the death of a tenant for life to whom no arrears are due. There is however this difference ^ between the cases, that in the former the successor is to be brought before the Court by a new process, having been previously unascertained, whilst in the latter the remainder-man is already before the Court, having in general been a necessary party to the suit from the beginning. Except therefore in the case of his being a sole plaintiff or sole defendant, — (in the former of which cases the remainder-man wishing to prosecute the same matter may obtain the benefit of the proceed- {z) Pitt\. Richmond's Creditors, (a) Davies v. TViHianis, 1826, 1702, 1 E. Ca. Ab. 3. Vide Ld. 1 Sim. 5. Red. ed. 4, p. 79, and Finch v. (b) Murray v. Elibank, 1804, Winchelsea, 1727, 1 E. Ca. Ab. 2. 10 Ves. 84. Tenant for Life. 158 Of the Cessation of Interest Death of a Tenant for Life. Tlie bill must shew that the interest was determinable. ino-s (c) in the same way as a successor on tlie death of a corporation sole who was a sole plaintiff, and in the latter of which cases the suit is extinguished for want of fuel, the causa litigandi being gone,) — the death of the tenant for life will cause no interruption whatever to the suit, which will proceed as before with respect to the other parties as if such deceased party had never existed, and without any new step being neces- sary in consequence of such death. For as the re- maining parties have still amongst them the whole interest in the matter litigated, as with the deceased party they had before, and are still competent to call upon the Court for a decree, the fact of the loss of interest of the deceased party is not a material fact necessary to be brought before the Court. The same may be said of the death of a co-trustee, co-executor, or other joint tenant ( ^ ' Case of Lloyd V. Johnes. Consideration of LordEIdon's judgment. The case of Lloyd v. Johnes was one in which a tenant in tail plaintiff died without issue, after the answers had come in and been replied to, but before any witnesses had been examined ; and the tenant in tail in remainder filed a supplemental bill against the same defendants, to which they put in short answers referring to their former answers. The new plaintiff then entered into evidence as to the facts stated in the original bill. When the cause came on to be heard, the defendants objected to this evidence being read, on the ground that the facts which it proposed to establish had never been averred or put in issue by the new plaintiff's bill, that bill merely stating that another bill had been filed alleging those facts, which filing the defendants did not deny ; — it did not call on the defendants to admit or deny the truth of the facts themselves, and therefore the defendants insisted that the plaintiff could not proceed to prove an issue which he had never tendered to them. Lord Eldon decided that the facts were sufficiently put in issue, and therefore upheld the plaintiff's bill in that particular case : but whether he did so on the ground that a supplemental bill Avas the right pro- ceeding, or on the ground that, although the supple- mental bill was a wrong proceeding, yet the defen- dants had, by putting in their answers, waived any objection to it, is a point not easy to be ascertained. In page 49, His Lordship intimates that " facts should never be put so in issue again, on account of the hazard attending it." Again in page 53, His Lordship says, " The general question is, whether this bill can be taken to be a continuance of the suit ; and the first consideration upon that is, whether Lewes's suit had gone in the course of proceedings to any such point that this upon the Death of a Party. 163 plaintiff, whose right was saved by accident, (but acci- Death of a dent out of which title arises, not that sort "pon ^|[j]*^^^°^°*'° which relief is given under the head of accident,) was Issue to start from the conclusion of the former proceedings instead of beginning de novo ; secondly, if he chose to do so instead of filing an original bill, in what manner he was to file his bill. He has taken a course the most difficult to sustain upon the forms of the Court; for unless with reference to some particular cases, tli£re is not much in practice, and nothing is to be found in judginent, as authority for it ; and therefore I have considerable doubt in saying that the bill can be sustained in this form ; but upon the ichole I think it may" And a little further on — " It is to be observed that the question, where a tenant in tail succeeds another, arises much more frequently where the tenant in tail is a defendant, and not a plaintiff; and therefore all the dicta ajDply to the case that happens more frequently, and not to that w^hich some- times may happen ; and there may be question whether the same principle, applying to the death of the tenant in tail defendant, applies to his death when plaintiff before the suit is determined.'"' The inference to be drawn from these passages seems to be that the bill ought to have been an origi- nal bill in the nature of a supplemental bill. Again in page 61. — " The bill therefore may be sustained; and if it is familiar in pleading, as against a new tenant in tail coming in, to file a bill stating that you made such a representation in the former bill, instead of representing the facts in the second bill, that will do in this case against all the defendants, who made no objection, and who are adult and com- petent. There is no surprise in this instance. They have answered as if the facts were put in issue, and m2 164 Of the Cessation of Interest Death of a there is no disadvantage to tliem from this mode of First Tenant in ,,• ^i n ^ t n ,^ ■ • Tail without alleging the tacts. It there were any surprise, m a Issue. ^ pr^gg jjg^y Qf j^g ]^[nd, it would be better to give them the opportunity of putting in other answers ; but as they have sustained no disadvantage, not having con- tended with other weapons than if one or two words more (A) were contained in the bill, this objection is not sufficient to repel the claim of the plaintiff." From this passage it would appear that Lord Eldon allowed the bill merely because the objection to its not putting the facts sufficiently in issue was taken too late. The defendants, he says, are adult and competent; — they make no objection ; — they have answered as if the facts were put in issue ; — they sustain no disadvantage. It must surely be inferred that if the defendants had been infants, or if, being adults, they had taken the objection earlier. His Lordship's decision would have been different. This view of the subject is supported by the autho- rity of Lord Redesdale, who says expressly that " if the interest of a plaintiff or defendant, suing or de- fending in his own right, wholly determines, and the same property becomes vested in another person not claiming under him, as in the case of an ecclesiastical person succeeding to a benefice, or a remainder-man in a settlement becoming entitled upon the death of a ])rior tenant under the saine settlement, the suit can- not be continued by bill of revivor, nor can its defects be supplied by a supplemental bill. * * * But in general by an original bill in the nature of a supple- mental bill the benefit of the former proceedings can be obtained (l)y {k) " stating {as the fact is) see the note on this passage ia 3 that &c." Dan. Ch. Pr. 169. {I) Ld. Red. ed. 4, p. 72. But & upon the Death oj a Partij. 106 On the other hand there are other passages in Lord Death of a Eldon's judgment, wliich seem to shew that it is '^ XaU^J^h '^'^t '" natural and proper consequence of the rule of pleading Issue. \vhich treats a tenant in tail as absolute owner, that ' the next tenant in tail should be considei-ed as so far standing in his place as to be entitled to continue the suit by supplemental bill ; — especially as it is admitted that this consequence follows where he is a defendant, and that he succeeds to all the disadvantages of a suit instituted against his predecessor. It must be observed, however, that Lord Eldon, throughout his judgment, treats as distinct the two questions, first, whether the remainder-man is entitled to the benefit of the former proceedings ; and secondly, if he is, whether he can obtain that benefit by con- tinuing the existing suit, or must institute a new ori- ginal suit which shall draw to it the benefit of the for- mer one. The first question he clearly decides in the affirmative : " The justice of the Court furnisiies this as a principle ; that it is of absolute necessity, when once it is said that the tenant in tail shall represent the inheritance, that those who are entitled to tlie inhe- ritance shall in this Court have the benefit, and the dis- advantage, of a proceeding by him (w)." His opinion on the second point is by no means so clear. In page 56 he says, " In this case I take the questions to be, first, Avliether anything passed in tlie former cause of which this plaintitt" can have the benefit ; secondly, if so, whether he has framed his bill in this cause in sucli a way, that he may have the same benefit as he could have had if his bill had been framed upon any other plan. In considering that, I must state it to be the case of a tenant in tail succeeding to a title to sue in equity upon the death of a preceding tenant in tail, and to sue in equity as a plaintiff' claiming by force of [in) 9 Ves. 68. 166 Of the Cessation of Interest Death of a a new limitation and not by succession. I admit the First Tenant in difference: but I am not satisfied it is so considerable Tail without ' , , , • • 1 1 1 • Issue. that if such a suit could be mamtained by the issue m ^ ' ' tail, upon the principles adopted by this Court for the convenience of justice it shall not be retained by the remainder-man." This seems to hold that the re- mainder-man is in the same situation as the issue, not only with respect to the right to benefit by the for- mer proceedings, but also with respect to the frame of the suit by which that right is to be asserted. It also seems to hold that an heir in tail would pro- ceed by a supplemental bill, and not by a common bill of revivor, though it is not easy to see the reason why. Again, in page 60, after saying that depositions taken before an intermediate remainder-man comes into esse are good as against such remainder-man, he adds; " This sort of principle, arising out of what the Court does for the convenience of justice, must be applied both for and against the tenant in tail ; subject always to this, that where the tenant in tail takes a different interest, or rather a similar interest not affected by the same circumstances, it is competent, both for and against him, to bring forward the equities belonging to those different circumstances, as contra- distinguishing his case ; and that is the result of the passage in Lord Redesdale's book, wdiich, so stated, I think right, that the difference between the issue in tail, heir, or devisee, and a remainder-man claiming- by force of a new limi- tation, is, that in the latter case the party is not bound by the shape of the defence." Again ;— " It follows therefore that if any advantage arises from the tenant in tail taking up the cause, he will have a right to say that liis interest was represented ; and he will con- tinue it. It saves expense, and may be of advantage to both ; — to the plaintiff, as giving him the benefit of u2)on the Death of a Party. 167 admission; — to the defendant, as giving him the ad- Death of a vantage of any statement in the bill. If the plaintiff sues x^fSout '"^ as by a continuation of the suit, there is no injustice Issue. in pressing against him the advantage of the state- ment in a bill which he adopts. But neither plaintiff nor defendant is shut out from stating particular cir- cumstances attaching upon his case." These passages seem to point at a supplemental bill, and to treat it as a proper proceeding. On the whole it is submitted that the inference to The second be drawn from Llojjd v. Johnes is, that, whether the p'oceedL\^'is tenant in tail who dies without issue be a plaintiff or a proceeded defendant, the suit may be continued by or against the ^^^^\^ supple- second tenant in tail by supjjlemental bill; and that mental bill, the examinations of witnesses, whether de bene esse or in chief, and all other proceedings by or against the first party, will be good in favour of or against the second party. The principle is similar to that which prevails in the case of new assignees of bankrupts. The new party does not claim under the old one ; but there is such an identity of interest as authorises a continuation of the suit ; subject however to this con- dition, that the new party has the advantage and the disadvantage of stating in his own favour, or of having stated against him, any special circumstances which may distinguish his case from that of the former party. So a remainder-man in tail may appeal from a de- And may ap- cree against the first tenant in tail ; and for this pur- f^fd^?^!' pose he must make himself a party to the suit in the manner mentioned above, and pray for the benefit of the proceedings for the purpose of appealing (;?). It need hardly be remarked that a suit instituted by or against a first tenant in tail can only be continued by or against the second tenant in tail when the causa (n) Gifford v. Hort, 1804, 1 Sch. & Lefroy, 38G. 1C8 Of the Cessation of Interest Death of a UtiyancU is derived from the party under whom they Taif withouJ '" ^oth claim. If it is derived from some act of the first Issue. tenant in tail, the second tenant in tail, claiming by indejjendent title, can never be incorporated into the suit by supplemental bill. " I distinguish," says Lord Eldon, " between cases where the suit is founded upon contract by the tenant in tail, and a suit to bind the land in respect of charges created by the author of the gift, and imposing them therefore upon all who talie ])er for mam doni{o)." Death of a I" the case of the death of the husband of a feme Husband covcrte, where the husband and wife were parties in Party m right i i i i i • of his Wife. lier right, there is this peculiarity, that although his " interest wholly determines with liis death, yet his death has also the effect of emancipating his wife from his control, and giving her a new capacity of Where he is suine; or being: sued. If therefore such husband and 1 ■ t'ff « V ain 1 . ^^^j^^ v,rere plaintifts, and he dies, although the wife may go on with the suit as before without taking any new step (p), yet she is not bound to do so, and if she declines to prosecute it she is neither liable to the costs of it (7), nor bound by the former pro- ceedings. Thus v.'here a husband and wife filed a bill in right of the wife, and the defendants answered, and wit- nesses were examined, and publication passed, but the husband died before the hearing, and the wife married again, and the second husband and wife filed a new bill for the same matter, they were not restrained from examining witnesses examined in the former cause, 1)ecause the wife was held not to be bound by the pro- ceedings in the former cause (r). If however the surviving wife does prosecute the (o) 9 Ves. 57. ((j) Ld. Red. ed. 4, p. 59. (;) Zr.on., 1750, 3 Atk. 726. yr) Ancn., ICl'O, 2 Vern. 197. upon the Death of a Party. 169 suit, slie is liable to the entire costs, and bound by llic Death of a former proceedings (5). \ Partytright If the husband so dying is a defendant, a distinction of liis Wife. is made between cases where the suit respects the „., , . ' . \v here he is wife''s interest in the character of an executrix or ad- a defendant. minhtratrix, and cases where it respects lier inheri- tance. In the former cases the wife is bound by the answer put in under the authority of her husband, and therefore his death causes no imperfection in the suit; but in the latter cases she is not bound by such answer, and consequently, as some new step must be taken in the cause by the plaintiff to enable her to ])ut in a new answer, the husband's deatlx causes an imper- fection in the suit(0- The language of Mr. Daniell, however, and of Lord Chief Baron Gilbert seems to allow no such distinction, the former saying generally that the wife is bound by the answer, and the latter that she is not bound, but that a bill of revivor must be filed to enable her to put in a new answer (?0- It is conceived that the apparent contradiction must be reconciled by the distinction above made. In this latter case, viz. the husband being a defen- dant, if on the husband's death a new interest arises in the wife, of course she must have an opportunity given her of putting in a new defence in respect of such new interest. In this case therefore an imperfection arises in the suit, but this imperfection is not caused by the death of the husband, but rather by the new interest which accrues to the wife. Thus where a husband and wife were defendants as having a term vested in them in right of the wife, an administratrix, and on (4) Ld. Red. ed. 4, p. CO. {n) 3 Dan. Ch. Pr. 211 ; Gilb. {t) Shelberry v. Briygs, 1091, 2 For. Rom. 175 ; vide etiain Prac, Vern. 249 ; sed ride Eijton v. Ey- Reg. 92, and Toth. 12. ton, 17(!0, Free. Ch. 110. 170 Of the Cessation of Interest, Sfc. Death of a the liusband's death she became entitled to dower out Husband ^f ^\^q same property, a supplemental bill was held of his Wife. necessary {x). If however it is the loife that dies, and her interest the wife causes does not determine but goes over to her husband as imperfection, jjgp administrator, and not as her survivor, her death of course causes an imperfection, which must be re- medied in the ordinary way. The remedy however is said to be only necessary in respect of estate, if any, which the husband becomes possessed of as such administrator, and not in respect of that which he became possessed objure mariti{y). Death of a Where one of several relators in an Information Relator or dies, the suit may proceed without any new step beinor Plaintiff in ' ,.,, ^ ^ . ^, . -^ , i . Interpleader, necessary. Where however there is only one relator, '^ ' ' it is true that his death causes an imperfection in the suit, because there must be some party answerable for the costs in case of a decree against the com- plainants ; but the imperfection is so slight as merely to have the effect of suspending the suit until a new relator has been appointed {z). And in an interpleader suit, after the cause has been heard, and a trial at law has been directed to settle the right between the defendants, there is an end of the suit as to the plaintiff; so that if he after- wards dies, the cause proceeds as before, and there is no imperfection, each defendant being in the nature of a plaintiff (a). {x) Mole V. Smith, 1820, 1 J. & {z) Ld. Red. ed. 4, p. 100. W. 665. But see Jac.495. (a) Anon., 1685, 1 Vern. 351 ; (y) Jackson v. Rawlins, 1690, 2 Ld. Red. ed. 4, p. 60. . Vern. 194. 171 CHAPTER XI. OF ASSIGNMENT OF INTEREST. We now come to that part of our subject which re- Effects „ . . . p , 1 • 1 n? i of Assignment. gards imperfections arising trom events wliicli attect, >. not the existence of the person representing an in- terest, but the condition of the interest represented. These occur, as we have seen in the fourth chapter, where all the parties to the suit retain their existence, both natural and civil, but cease to represent among them all the interests necessary to be brought before the Court. It has, in the same chapter, been stated that this may happen in three different ways : — first from the assignment, in fact or in law, of an existing interest, as where a party to the suit becomes bankrupt or insolvent, or sells or mortgages the property in ques- tion : — secondly, from the rise of a new interest, as where a child is born who is entitled under a will or settlement : — and thirdly, from the cessation of an interest during the life of the party enjoying it, as where a tenant's lease expires in his lifetime, or a rector resigns his living. In all these cases it must be observed that, though defect arises, the suit becomes neither abated nor ex- tinct. The old litigant parties are still living, and capable of interpleading, though they can no longer do so with effect until something wanting to the suit has been supplied. The suspension is only of the utility of the suit, and not of its vitality. \ 72 Of A ssignmtnt of Interest. Effects ^Ve will first consider tlie defect arising from tlie of Assignment , j^ssiynmeiit of an existing interest. The assignment of an existing interest pendente lite does not in all cases cause defect, because where the assignment is an assignment in deed, and not in law, and where it passes an equitable interest only, and not a legal estate, it has no validity except in a Court of Equity ; and that Court, having the sole cognisance of it, will not allow it to have any effect to the preju- dice of the suit. The assignee may indeed, as we shall presently see, intervene if he thinks proper ; but, until he does so, it is open to the other parties to treat the assignment as wholly nugatory, and to consider the assignor as still the person representing the in- terest in question. Thus where a co-plaintitf executed a deed of assign- ment, for the benefit of his creditors, of his equitable interest only in the subject matter, it was held that such an assignment pendente lite did not prevent the suit from being heard, but that it might be heard as if there had been no such assignment, and that those who claimed under it must take such course to en- force their rights as they might be advised (a). But where the assignment penc?ewie lite is an assign- ment in law, as a bankruptcy, or \vhere it affects the legal estate in the premises, a Court of Equity must acknowledge that the assignor has lost his interest, or a part of it, as the case may be, and that the suit has become either closed or incomplete for want of ])arties. And this incompleteness exists equally, al- though the assignment has been made to a person who was already a party to the suit in some other capacity ; because, although in t)iat case the assignee is before the Court, yet he is so on a ground perfectly (a) Eades v. Harris, 1842, 1 Y. & Coll. C. C. 230. Of Assignment of Interest. 173 distinct from that which now renders him a necessary Effects of Assignment, party. » ^ * In these latter cases of assignment, therefore, the suit cannot proceed to any useful purpose until the defect occasioned has been supplied. And we have now to consider the proper mode of effecting this. The remedy for a defect occasioned by the assign- ment of an interest varies according as the party who wishes to make the suit perfect is one of the original parties to the suit, or the assignee, who is a stranger to it : and it is proposed to consider our subject ac- cording as the assignment has the effect of putting an end to the suit, as a total assignment by a sole plain- tiff; or of making it incomplete only, as a disputed or a partial assignment by a sole plaintiff, or an assign- ment by a co-plaintiff or defendant; and again, in the latter cases, according as the party conducting the suit takes notice of the assignment or leaA'es the assignee to his own remedies. I. Where the assignment is such as to ])ut an end ^; "^"^^^ ■'^^^ . ' signment by to the whole suit, as a total assignment by a sole Sole Plaintiff. plaintiff. ^ ' ' ' Where a sole plaintiff knowingly and intentionally assigns all his interest in the matter litigated, to an- other person, and has no fraudulent design of de- feating or disputing his own act, or where an assign- ment in law takes place and the plaintiff does not dispute the legal effects of the event, it is obvious that the plaintiff has lost all motive for proceeding with the suit; and therefore, though neither abated nor extinct, yet, unless taken up by some other person, it is in effect finally closed. Before decree a defen- dant cannot make hi.nself an acting party, and there- fore the only person who can proceed with the suit is the assignee himself; and this he cannot do bv a mere 174 Of Assignment of Interest. I. Total As- signment by Sole Plaintiff. V _ Assignee files an original bill in the nature of a supplemental bill. Motion by defendant to dismiss where sole plaintiff becomes bank- rupt. supplemental bill, but must file a new original bill, though in the nature of a supplemental one. By this bill the assignee will put the whole case in issue, repeating the statements in the original bill, and then stating the filing of that bill, and the proceedings, and tlie assignment under which he claims : and he will charge that in consequence of such assignment he alone is entitled to the interest in question, and has a right to prosecute the matter ; and he will pray that he may have the benefit of the former proceed- ings, and that for that purpose his bill may be taken as supplemental to the former bill. If any case for special relief arises out of the circumstances of the assignment, he will add a prayer for such special relief(5). The reason why the original case must again be put in issue, has already been noticed as arising from the doctrine of maintenance. It is not enough for the new plaintiff" to state that his assignor instituted a suit, and assigned to him the benefit of it ; he must shew that his assignor had the property in respect of which the suit was instituted, and that that property has been assigned and carries with it the right to sue. The proceedings upon the new bill, and the degree to which the new plaintiff" will be allowed the benefit of the former suit, as well as the mode of availing himself of such benefit, will be the same as in the case of the original bill in the nature of a supplemental bill mentioned in the preceding chapter. Although an original bill in the nature of a supple- mental bill is, to use the language of Lord Redes- dale (c), not a continuation of the former suit, but a new suit which draws to itself the advantages of the (S) For a precedent of this sort of bill see the Appendix, No. XVI. (c) Ld. Red. ed. 4, p. 99. Of Assignment of Interest. 175 former suit, yet for some purposes it seems to be con- 1. Total As- sidered as a continuation only. Tlius, if a sole plain- sd°"pia!i!tfff tiff becomes bankrupt, and the regular time for dis- ^^ ^ ' missal for want of prosecution arrives, the defendant does not make the usual motion to dismiss for want of prosecution, but moves specially, upon notice, that the bill be dismissed loitlioiit costs unless the assignees file a supplemental bill within a certain time( a defendant, brance, and the assignee or incumbrancer is to be brought before the Court, it is not necessary to com- mence de novo against him by original bill, because he claims under the original party. The plaintiff may continue his own suit against the new party by a bill referring to the original bill, and merely putting in issue the assignment or incumbrance ; in other words, by a supplemental bill. Where defend- If a defendant becomes bankrupt pendente lite, the bankru^pr^^ plaintiff need not go on with the suit by filing a sup- plaintiff may plemental bill against the assignees, but he may dis- bankruptcy. ^ "^^^^ ^^^^ ^^^^ ^"^ S^ ^^ under the bankruptcy. It seems doubtful whether the bill will be dismissed in this case without costs. In the somewhat analogous case of Knox V. Brown{z)f where the defendant yielded to tlie demands of the plaintiff after the bill was filed, Lord Thurlow permitted it, saying that it was by the act of the defendant himself that the object of the suit was gone ; but in Rutherford v. Miller (a) and in Monieith V. Taylor ih) the Court refused to dismiss the bill without costs. If, however, the plaintiff prefers pro- secuting the suit, the bankrupt defendant cannot com- pel him to bring his assignees before the Court in a given time. The bill can only be dismissed, if at all, in the ordinary way for want of prosecution (c). Where defend- If a defendant assigns his interest before apjjearance foreTi'^Tr-^^' ^^ *^^^ ^^^^' ^^ cannot be called an assignment j^encfew^e ance. lite, because a suit does not exist against a party until (z) 1787, 2 Bro. C. C. 186. (c) Manson v. Burton, 1842, 1 (a) 1794, 2 Anst. 458. Y. & Coll. C C. 626. \b) 1804, 9 Ves. 615. Of Assignment of Interest. 183 he has entered an appearance. In this case, therefore, ll. Where the it is apprehended that such defendant must still ap- ^^'^^^'^'2^^^^^'^^ pear and answer the bill, and that, upon his stating to the Suit. the assignment in his answer, the plaintiff must add the assignee to the suit by supplemental bill. Where an information was filed against the trustees Case of new of a Charity, and some of them died, and new trustees charUy aj-^ were appointed and conveyances made to them by the pointed iu the surviving trustees before the hearing, and after the S-ustees de-"^^"^ hearing and decree they were brought before the Court Pendants, by a supplemental information praying the same relief against them as was prayed by the original informa- tion against their predecessors, they were held to be not in the same situation as purchasers pendente lite, but as claiming by independent title, and therefore not bound by the answers of the former trustees, al- though not entirely unaffected by them. In this case, therefore, it seems that the new trustees ought to have been brought by original information in the nature of a supplemental information, and not by a supple- mental information merely (d). It appears that one supplemental bill will not sup- One supple- ply the defect in more than one suit. Thus where two ^oTsuppiy T'^^ suits were instituted for the administration of an estate, 'Jefect in two namely a legatees' suit and a creditors' suit, and one decree was taken by consent in both suits, and then both suits became defective, it was held that a separate supplemental bill must be filed in each suit, and that one order might then be made in both suits (e). So where a vendor, Cattell, obtained a decree for specific performance of a contract for sale of an estate against the purchaser, Corrall, who accordingly paid (d) Alt. Gen. v. Foster, 1S42, (e) Barrow v. Hobhouse, 1835, 6 Jurist, 1032; vide etiam S. C. 13 Law J. 218. 2 Hare, 81. 184 Of Assigninent of Interest. II. Where the tlie purchase money into Court to tlie credit of the Se^Asfig^ne^e ^ause ; and afterwards a second suit was instituted by to the Suit. Rowhitt against Cattell and Corrall, makino- a claim to the purchase money ; and Cattell having become insolvent and an assignee being appointed, RoAvlatt brought the assignee before the Court by a supple- mental bill to his own original bill ; on a motion by Corrall to have the purchase money refunded to him on Cattell's having refused to execute a proper conveyance tendered to him by Corrall, Sir James Wigram, V. C, said ; " The object of the motion is to deal with funds which stand to the credit of the cause in which Cattell is the plaintiff. There is at present no proceeding by any party in the suit insti- tuted by Cattell, or by the assignee of Cattell, to remedy the defect occasioned by his insolvency. I am informed, and it is not in fact denied, that the title of Rowlatt is disputed ; and I cannot therefore, before any decree is made in his cause establishing that title, consider or treat him as a person whose suit has re- medied the defect in the cause of Cattell v. Corrall, in wliich he is not a party. I must assume it to be pos- sible that at the hearing of the causes in which Row- latt is plaintiff his bills maybe dismissed ; and in that case the cause of Cattell v. Corrall will remain defec- tive, as it was before the supplemental bill of Rowlatt was filed, and as it still is(/)." Form of the As to the fomi of the supplemental bill ; — in this, as supplemental .^^ ^^^^^^ ^^^^^^^ -^ ^^^.j^^ ^^ ^^^^^ ^^^^^^ ^^ ^^^^^^1^ ^j. ^j^^ former proceedings as is necessary to make an intel- ligible story and shew that the plaintiff has an equity. Thus in Vif/ers v. Amlley {g\ where an injunction was granted against the directors of a Company, and after- (/■) Cattell V. Corrall, 1841, {y) 1837, 9 Sim. 72. 1 Hare, 21C. Of Assignment of Interest. 1 85 wards a new director was appointed who attempted to II. Where the infrino-e tlie injunction, and the plaintiff filed a .siiii- j;i"'"tiff adds c J _ ' i 1 the Assignee plcmental bill a<^ainst him, conmiencinp^ his statements to the Suit. with the granting of the injunction, Sir L. Shadwell, V, C, held this statement to be quite sufficient, ob- serving that " it is not necessary for a plaintiff, when he files a supplemental bill, to state in it all the cir- cumstances of the case at length. All that is requisite is, that he should state so much of the case as shews that there was an equity ; and as the plaintiffs in this case have stated that the Judges of the Court have granted injunctions in the prior stages of the cause, they have stated sufficient to shew that there was an equity." After stating the subsequent proceedings, and the assignment, the bill will pray for the same relief against the assignee, as might have been had against the as- signor if he had not assigned {h). The rule as to the parties to the supplemental bill Parties, seems to be the same as has been already given with respect to the other species of supplemental bills. All the original co-plaintiffs must be made parties, because no co-plaintiff ought to take any step in the suit with- out giving the others an opportunity of dissenting from it; and as to the original defendants, if the supple- mental bill is filed to bring before the Court the as- signee of a co-plaintiff, all the original defendants must be parties to it, but if it is to bring the assignee of a defendant, the original defendants seem not to be necessary parties. Thus where, in a suit against trustees and executors for an account, a co-plaintiff mortgaged his interest and became insolvent pending the suit, and a supplemental bill was filed by the other co-plaintiffs against the mortgagee and the provisional assignee alone. Lord {h) For a precedent of this sort of bill, see the Appendix, No. XVII. 186 Of Assignment of Interest. II. Where the Langdale, M. R., allowed an objection that the origi- Plaintiff adds nal defendants were not made parties to the supple- the Assignee , , .„ . ,, k ,• i. i i. a^ to the Suit. mental bill, saying ; " An accounting party ought to "^ • ' know who it is that calls upon him for an account. The case is just as simple as this ; — a party calls for an account, and the defendant, at the hearing, is ready to account, and he is then for the first time informed that some of the plaintiffs have no right to call for such account, or that one of them has transferred his right to some one else, of whom the accounting party never heard before. Is it possible to support a record in such a state ? I regret the extra expense to which the parties will be put by allowing the objection, but it would be much more to be regretted if an accounting party were to be ignorant to whom he is to account, up to the very time of the hearing The case of a defendant's interest being transferred is very different, for the plaintiffs remain the same to the end. In the cases referred to, where the interest of one of the defendants was transferred, the only thing necessary was, that the plaintiff should bring before the Court a proper substitute for such parties (i)." Evidence. As to the evidence necessary in the supplemental suit, it is founded on the same rules as those respect- ing the statements necessary in the supplemental bill, or in the original bill in the nature of a supplemental bill, by which the supplemental suit is instituted. — Every material fact stated in either bill must be ad- mitted or proved, and the true question therefore on this point is, what are the facts material to be stated in the bill filed by or against the assignee. To the extent to which the new party is bound by the pro- ceedings in the original suit, the proceedings them- selves should alone be stated and proved, and not the (i) Feary v. Stephenson, 1838, 1 Beav. 42. Of Assignment of Interest. 187 original facts which were the foundation of those pro- ii. Where the oppflinp-s Plaintiff adds CeeamgS. ^ ^ ^j^^ Assignee The assignee is of course bound by the evidence to the Suit. taken previously to the assignment ; but not by any j^^^ ^^^ ^^^ which may have been taken after the assignment and assignee is before he has been added to the suit. Thus wliere evidence. the assignees of a bankrupt defendant are brought before the Court by supplemental bill, evidence taken in the original suit previously to the bankru})tcy, may be read at the hearing against the assignees (A) ; but where it appeared that some of the witnesses had been examined after the commission had issued, and before the supplemental cause Avas at issue, the Court allowed an objection to reading their depositions. So far, however, as the objection extended to the depositions previous to the commission, it was overruled (/). So the assignees of a bankrupt defendant, brought before the Court by supplemental bill, are bound by the accounts taken before the bankruptcy, and cannot go into them again. But they are not bound by the accounts taken after the defendant became bankrupt, and before they were made parties (»0- Garth V. Craiofordin) is an important case on this point. In that case a testatrix had devised her real estate to be sold, and the proceeds to be divided between Crawford, Peters, and Mrs. Turner. She died in 1735, leaving Sarah Garth her heir at law. In April 1736 Mrs. Turner mortgaged her expectant share to Willis. In May 1736 Crawford, Peters, and Mrs. Turner filed a bill against Sarah Garth, to per- petuate the testimony of witnesses and to prove the will. In June 1736 Crawford purchased the interest (*) 1 Dan. Ch. Pr. 255. 2 Moll. 361. (0 Hitchensv. Congreve, 1831, (n) 1741, Barnard. Ch. 450; 4 Sim. 420. vide S. C, 2 Atk. 174, where it is {in) Ormsby v. Palmer, 1825, called Garth v. Ward. V. 188 Of Asshjirment of Interest. II. Where the of Peters nuclei' the will, and on tlie 3ril of Jannary Plaintiff adds 1737 ^Villis purcliasecl Mrs. Turner's canity of re- the Assignee ^ ^ - 1 /-^ 1 to the Suit, (Jeniption. On the 8th 01 January 1737 Sarah Garth ' put in her ans\Yer, insisting that Peters and Mrs. Turner were papists, and therefore incapable of taking any thing under the will. Afterwards Sarah Garth filed a new bill against Crawford, Peters, Mrs. Turner, and Willis, to set aside tlie will as to the gifts to Peters and Mrs. Turner ; to which the defendants put in their answers. An order was made in the cause that the depositions taken in tlie former cause should be read at the hearing ; but an objection was taken by Willis that the depositions could not be read against him, because he had never been a party to the former suit, and the mortgage had been made to him by Mrs. Turner before the filing of tlie first bill, and his purchase of Mrs. Turner's equity of redemption liad been made before Sarah Garth had put in her answer to that bill. Lord Hardwicke said, " that his opinion was that these depositions ought to be read. That this was a question of very great consequence in i-espect of bills which were brought to perpetuate testimony ; and if he should disallow the depositions to be read in the present case, it would overturn the whole use of these kind of bills. But, in saying this, he would distin- guish between the mortgage which was made to Willis, and the purchase which was made by him of the equity of redemption ; for, as to the mortgage, it was stated to have been made before the filing of the first bill, and therefore none of the depositions which were taken in that cause could anyways be read to affect it. But with regard to the purchase of the equity of re- dem})tion, which was made subsequently to the filing of that bill, the depositions ought to be read. For Of Assignment of Interest. 1^9 the bill was brouo-lit in May 1836;— it was a bill n. Where the , , ^ 1 . • 1 . .. i. i. ,.• Plaintiff adds brought by three devisees m order to perpetuate testi- ji^g Assignee mony, and to prove a will of real estate, and that is t o the Suit. ^ the only method of provinj^ a will of that sort in this kins:dom. The answer of Sarah Garth came in on the 8tli of January following. It has been said that on the 3rd of January the purchase of the equity of re- demption was made, which was before the time wlieu the answer came in, and from thence it has been urged that the depositions which were afterwards taken shall not affect tliis purchase. But thougli the bill was filed in May, and the answer did not come in till the 8th of January following, yet that part of the objection is no reason against allowing the depositions to be read ; for it very often happens, by the ordinary indulgences which are given to the putting in of an- swers, that an answer does not come in to a bill till that distance of time ; nor will the other part of the objection, namely, that the purchase was made before the coming in of the answer, be material. The ques- tion is, whether the depositions in this case ought not to be read against a person who claims under one of those who were plaintiffs to that bill. It has been made an objection that that was a bill merely brought to perpetuate testimony, and to prove the will, and that no relief was prayed under it : and it is indeed true that that was not such a bill as could be brought to a hearing, and therefore that it could not properly create a lis pendens, so as to affect a purchaser claim- ing under one of these parties after the filing of the bill ; but still it was such a suit that the proceedings under it, when rightly carried on, must affect those who claim as purchasers from one of the parties after the filing of the bill. It is of great consequence that bills of that kind should be supported ; but if these 190 Of Assignment of Interest. II. Where the depositions are not to be read, it would be in the Plaintiff adds o • ^ i • i • • i • the Assignee power 01 either a devisee, or a person claiming as heir t o the Suit. ^ r^^ \2iV!^ to prevent such a bill being of any effect. " I will first consider the case of an heir at law. Suppose an heir gets into possession of an estate on the death of his ancestor, and the devisee that is out of possession brings a bill to perpetuate testimony, and to prove the will. The heir at law makes a secret conveyance to another person pending that suit. If the depositions taken in that cause could not be read against the person who claims under the heir at law, it would defeat the whole benefit of the suit. The case is just the same in respect of its consequences, if a devisee gets into possession, and brings a bill of this sort, and afterwards makes a private conveyance : if the heir at law could not read the depositions which were taken in that cause, against the party who claims under the devisee, the bringing that bill would be of no manner of effect. The bringing a bill of that sort by a devisee is a challenge to the heir at law to dispute the title with him ; and if he does dispute it, namely, by examining witnesses of his own, the con- sequence is that he loses his costs, because by ex- amining such witnesses, he has a benefit of the suit as well as the devisee." These were the reasons upon which His Lordship's opinion was chiefly founded, that the depositions in the present case ought to be read against Willis, and they were read against him accordingly. The rules as to the proper manner of intituling the evidence, and also as to the defence, setting down for hearing, and decree (o), with respect to this sort of supplemental bill, seem to be the same as those (o) For the form of a decree on this sort of bill, see the Appendix, No. XVIII. Of Assignment of Interest. 191 already given in the second chapter of this treatise, ll. Where the •' o 1 1 -11 X i 1 f • Plaintiff adds witli respect to the supplemental bills treated ot in ^^^ Assignee to the Suit. that place . After a decree the defendants, or any of them, may, ^ defendant if they think proper, bring the assignee before the may bring for- Court by a new bill. Thus where, after decree, a de- TsTignee^fter fendant, Corrall, had given notice to the plaintiff, decree. Cattell, of an intended motion, and before the motion was made Cattell became insolvent and an assignee of his estate was appointed ; on Cattell's requiring that the motion should be either made or abandoned, Sir James Wigram, V. C, said ; " I cannot permit Corrall to make the insolvency of Cattell a reason for suspend- ing indefinitely his present motion ; and as he may by the practice of the Court file a bill to make the cause of Cattell V. Corrall perfect, I shall require hira to do so forthwith, or entertain the application of the other parties to be relieved from the pendency of the no- tice (p)." It is apprehended that such a bill will be a supplemental bill merely, founded upon the decree, and not upon the merits of the case ; because, as we have seen, Vi plaintiff may continue his suit against an assignee by such a bill ; and after decree all parties are equally actors, and considered as plaintiffs. The objection arising from maintenance does not apply, be- cause the party filing the new bill is not the assignee, but a person who has been made a defendant because he sets up a claim. It is also apprehended that in this case notice must be given to the original plaintiff, in order to give him an opportunity of filing the supple- mental bill himself if he prefers it. In the above case of Cattell v. Corrall, His Honor appears to have thought that it would not be neces- sary to wait until a decree had been made in the sup- {p) Cattell V. Corrall, 1841, 1 Hare, 216. 1 92 Of Assignment of Interest. II. Where the pleiiiental suit, before the pending motion could be the Assignee entertained, but that the appearance of the assignee t o the Suit. would be sufficient for that purpose. He declined liowever giving any positive opinion on that point. Assignee It must be observed here that the new party to pro bono et wliom the interest of any party has been transmitted, ""'^''- stands in the same plight and condition pro bono et mala as the former party. He is bound by his acts and (in the case at least of a bankrupt's assignees) is liable to all the costs of his predecessor as well as his own costs, "though the matter has been twenty years in controversy (g)." Thus in Whitcomh v, Minchin(r), it was said that the assignees of a bankrupt defendant, brought by supplemental bill, might be liable to the costs of the whole suit if they improperly resisted the plaintiff's demand ; but as it appeared in that case that the plaintiff had made no application to them on the subject of the suit previously to filing the supplemen- tal bill, the costs were refused. The above rule appears to apply as much to an assignee who adopts the original suit by taking the be- nefit of it in a supplemental suit, as to an assignee who is added to the original suit by supplemental bill(s). III. Where the HI. Sometimes after decree a sole plaintiff enters himself to the ^"^^ some transaction of which it is doubtful whether • ^"'^- it is an assignment of his interest or not ; or he makes only a partial assignment of his interest, or a co-plain- tifi" or a defendant makes an assignment, and the party conducting the suit being unwilling to notice such assignment, or having no occasion to do so, his rights not being affected thereby, omits to make the assignee (q) 1 Atk. 89. V. Harris, 1842, 1 Y. & Coll. C. C. (r) 1820, 5 Madd. 91. 2J0. (.v) 1 Atk. SO ; vide etiam Eades Of Assignment of Interest. 193 a party to his suit, although the latter may have an III. Where the interest in beiner brouo:ht before the Court. In this ^.^^'»?f! ^'^,^^ ° o himself to the case the assignee is not always driven to file a bill, but Suit. may sometimes secure his rij^hts by other means. ,^ Inus where there is a luncl m Court, he may obtain, by times come in petition, an order commonly called a Stop Order, pro- ^'''>°"* ♦^^•"S viding- that the assignor shall not take the fund out of Court without notice to the petitioner. So if a pur- chaser wishes to attend the Master under a decree, he may obtain an order to do so, if the order is qualified so that the plaintiff is not precluded from his remedies against the purchaser ; the order being at the expense of the purchaser (t). It is not always, however, that this indulgence is granted. Thus where, after the usual decree for account against executors, one of them became bank- rupt, and the assignees petitioned for liberty to go before the Master on taking the accounts, and to be admitted on behalf of the bankrupt's creditors to sup- port his discharge, the order was refused, on the erro- neous ground, however, of the bankruptcy having caused an abatement (u). In cases, therefore, in which a petition does not lie. Otherwise he the assio-nee is under the necessity of filing; a new bill : ^l^ ^ pew bill, o . , ^f^er giving and as he cannot, from the doctrine of maijitenance notice to the already mentioned, literally continue the suit, he P'^"^''"- must by his new bill make out his whole case for relief and ask for the benefit of the former decree. As however the granting of such a prayer would be in effect giving him the conduct of another person''s suit, while that other person is still ca2")able of prose- cuting it, and intends to do so, the assignee must, pre- (0 Toosei/ V. Burchell, 1821, (m) Russell \. Sharp, \SU, l\. Jac. 159. For the order in this & B. 500. cause, see the Appendix, No. XIX. O J 194 Of Assignment of Interest. III. Where the viously to filing his new bill, apply to the plaintiff in Assignee adds Qj-jgr to give him an opportunity of adding the assignee Suit. to the first suit by supplemental bill. Should he neglect to make such an application, he will, upon his being added to the first suit, have to pay all the costs of his own suit (.r). If the plaintiff, upon being served with such notice, disregards it, the assignee will file his new bill, and will obtain the benefit of the proceedings in the first suit, and liberty to prosecute it in the same way as the original plaintiff might have done. Thus in Philipps v. Clarke (y), where a defendant became insolvent after decree, and his assignee, with- out any previous application to the plaintiff, filed a bill to get the benefit of the decree, and afterwards the plaintiff brought the assignee before the Court by supplemental bill, and thereupon the assignee moved that the plaintiff's supplemental bill might be taken off the file for irregularity; Sir Lancelot Shadwell, V. C, allowed an objection that this would be taking the conduct of the cause from the plaintiff and giving it to the assignee, saying ; " I am of opinion that there is a material distinction between a case like this, in which a supplemental bill is necessary, and a case in which a common bill of revivor alone is necessary. In the former case the cause must be prosecuted to a hearing, and a decree must be obtained. The assignee should have applied to the plaintiff before he instituted his suit. He has brought the evil on himself by omit- ting to do so." So in Booth v. Creswicke (z), where a bill had been filed by Jones, a second mortgagee, praying to redeem the first mortgagee, and to foreclose the mortgagor (.r) Philipps V. Clarke, 1833, (y) 1833, 7 Sim. 231. 7 Sim. 231 ; vide etiam Fosters. (z) 1837, 8 Sim. 352. Beacon, 1821, 6 Madd. 59. Of Assignment of Interest. 195 and subsequent mortgagees; and after a decree had III. Where the been made in the suit, Creswicke, one of the subse- ^^s^f to^the quent mortgagees, assigned his interest in the mort- Suit. gaged premises to Booth, who thereupon filed a bill ' against all the parties to the former suit, praying for the benefit of the suit, and to redeem the prior, and foreclose the subsequent, mortgagees ; the Court dis- missed the second bill as against all the defendants thereto except Creswicke, with costs ; and ordered that in default of Creswicke's paying Booth his mort- gage debt within a certain time, Creswicke should stand foreclosed ; and in that case Booth was, as against Creswicke, declared entitled, in right of his mortgage security, to the benefit of the decree and proceedings in the first suit, and to stand in the place of and use the name of Creswicke in the further pro- secution of the first suit, and in the meantime to be at liberty to attend the Master in taking the accounts in that suit. It is apprehended that the disputed or partial assig- How far the nee of a sole plaintiff", or the assignee of a co-plaintiff" ^^g^^^gl^^^^^ or defendant, upon bringing his bill after decree to the former de- have the benefit of that decree, must, as in the case of the total assignee of a sole plaintiff", be prepared to shew that the decree was a correct one ; and that conse- quently if the assignment took place before the decree, so that the decree was erroneous for want of parties, the assignee, as in the above mentioned case of Clunn V. Crofts {a), could obtain no benefit from that de- cree. There is however a remarkable case of Binks v. Binks{b), which militates not only against this doc- trine, but also against the doctrine that the laws of maintenance require an assignee to make out his case (a) Supra, in this chapter. (*) 1813, 2 Bli. 593. o2 196 Of Assignment of Interest. III. Where the by an original bill in the nature of a supplemental bill, hims^e"f to^the ^"stead of merely continuing the suit by simple sup- Suit, plemental bill. In that case Thomas Binks, a cre- ditor of Lord Rokeby, filed a bill for the sale of cer- tain estates which had been assigned by Lord Rokeby to trustees for payment of his debts ; and before decree Thomas Binks assigned his interest in the estates and debt to Richard Binks and others in trust for the pay- ment of his, Thomas Binks's, debts. A decree was afterwards made for sale of the estates according to the prayer of the bill, whereupon Richard Binks and his co-trustees filed a simple supplemental bill, stating the filing only of the original bill, and not the facts of the case, and acknowledging that the decree had been obtained by mistake, but oifering to confirm all the former proceedings, and join in the conveyance to the purchaser, and praying for tlie benefit of the decree and other proceedings in the cause. An objection by Lord Rokeby that the decree ought not to be carried into execution because it was erroneous, was over- ruled, and Richard Binks was allowed to carry on and prosecute the suit and have the benefit of the former decree. Mr. Daniell says(c), that the reason why Richard Binks was allowed to proceed by a simple supplemen- tal bill, was because the assignment to him was only partial, Thomas Binks having reserved an interest in the surplus. He says also tiiat the assignee of a co- })laintiff' or defendant may add himself to the suit by supplemental bill (d). He does not however give any explanation why a partial assignee of a sole plaintiff, or the assignee of a co-plaintiff or defendant, is less obnoxious in theory to the laws of maintenance than a (c) 3 Dan. Ch. Pr. 165. (d) Ibid. 1C3. Of Assignment of Interest. 197 total assignee of a sole plaintiff. The circuiiistance of ill. Where the the assignor being made a party to the assignee's suit hims^e"f to^lf^ in the case of a partial assignment might perliaps war- Suit. rant a simple supplemental bill in tliat one case; but ' this reason would not apply in the cases of suits by the assignees of co-plaintiffs or of defendants, any more than in the case of a suit by the total assignee of a sole plaintiff. 198 CHAPTER XII. OF THE RISE OF A NEW INTEREST. Nature of We now come to the second of the three classes of ^t e erne y.^ ^gfg^^ above enumerated ; namely, that which arises when, after a suit has been instituted, a new interest in the matter in litigation arises in a new person. This happens where a child is born, who becomes on his birth entitled under some will or settlement to an estate in the property which is the subject of the suit. From that moment the suit ceases to be complete, because there is a person interested who is not a party to it; and the defect must be supplied by bringing the new party before the Court. In considering the mode in which this ought to be done, we shall find that the case nearly resembles that considered in the second chapter of this treatise, where a person, who is a necessary party at the time of filing the original bill, has been omitted to be made a party to it. For the new-born child neither claims an in- terest derived from a former party, as an assignee does-, nor does he claim the property by an independent title in the place of a stranger whose interest has deter- mined, as in the case of a bishop or rector : but he claims an entirely new interest which has never before been represented in the suit. The defect therefore occasioned by his birth is neither of that nature which requires the suit to be continued against him by a simple supplemental bill, nor does it require a new suit to be instituted, seeking the benefit of the former pro- Of the Rise of a New Interest. 199 ceedings ; but it is a defect quasi inherent in the suit Nature of from the beginning, and ought to be remedied by such ^the emedy.^ a supplemental bill as has been treated of in the second chapter, in the case of an omission of a neces- sary party, and which is in the nature of an amend- ment of the original bill, and calls upon the defen- dant to answer that bill. The frame (a) therefore of such a bill, and the pro- ceedings upon it, will be such as have been already described in the second chapter ; to which we may also refer for the mode of extending to the supple- mental suit the benefit of proceedings previously had in the original suit. Where the child, born pendente lite, is a tenant in where an ia- tail, the rule is somewhat different. — In the peculiar Jg^nf-^ t^ij case of a suit instituted against a prior tenant in tail, comes into esse. we have already seen that it is not necessary to bring before the Court any tenant in tail in remainder, be- cause the first tenant in tail is supposed to represent the whole inheritance ; and that consequently, if the prior tenant in tail dies, the suit is continued against the tenant in tail in remainder, by supplemental bill merely, with liberty to the tenant in tail in remainder to state any special circumstances attaching to his case. In analogy to this rule, the same practice is adopted in the reversed case of a prior tenant in tail coming into esse during a suit which has been com- menced against the remainder-man in tail. The prior tenant in tail is put in the place of the remainder- man in tail by a simple supplemental bill, and the suit is continued against him without his being called upon to answer the original bill ; he being bound by the proceedings had against the remainder-man in tail in consequence of their supposed identity of in- (a) For a precedent of this sort of bill, see the Appendix, No. XX. 200 Of the Rise of a New Interest. Nature of terest ; Avith liberty however to state any special cir- ^the Remedy.^ cuiiistances attaching to his case. In such a case it is apprehended that the suit would be dismissed as against the tenant in tail in remainder, as being, by the rule above given, no longer a necessary party to the suit. The above rule is thus laid down by Lord Eldon : — " In the very ordinary case where the bill is filed for the purpose of raising a charge against the inherit- ance, divided into estates tail, against a remote remain- der-man, those intermediate not being yet in esse; if the cause has proceeded a certain length, on an inter- mediate remainder-man coming into esse you go on to state the former proceedings ; and that is held allega- tion sufficient to put the facts in issue with regard to that sort of defendant. But I admit the general opi- nion that if in such a case witnesses have been exa- mined against the former defendant, yet upon the other's coming into existence, the plaintiff must ex- amine again. It is so said ; — / doubt it: and am of opinion that whenever the case shall arise, if the wit- nesses should die, this Court upon its own principles may hold the subsequent defendant entitled to the benefit of that testimony. So I should also say that this sort of principle, arising out of what the Court does for the convenience of justice, must be applied both for and against the tenant in tail ; subject always to this, that where the tenant in tail takes a different interest, or rather a similar interest not affected by the same circumstances, it is competent both for and against him to bring forward the equities belonging to those different circumstances, as contra-distinguishing his case (&)." (J) 9 Ves. 59, GO. 201 CHAPTER XIII. : OF THE CESSATION OF INTEREST DURING LIFE. There remains only the third species of defect above Nature of the noticed ; namely, that which arises from the total ces- ^^^l "'oceed- sation of the interest of a party during his life. ^ . ' We have seen that on the death of a party whose interest does not devolve on his heir, devisee, or per- sonal representative, hut ceases with his life, the suit, as regards that party, does not abate, so as to be capa- ble of revivor, but is wholly terminated ; although the benefit of it, to some extent, may be obtained by or against any person who succeeds to the property and who is not already before tlie Court, by means of a bill in the nature of a supplemental bill. In like manner, if, during the life of a party, his interest in the subject matter of a suit wholly terminates, and does not pass to any assignee or person claiming under him, the suit, as regards such jiarty, does not become defective merely, but is wholly terminated. Here however also the benefit of the suit may be obtained by or against a successor to the property not already before the Court, by means of a bill in the nature of a sup- plemental bill. The result is, that it makes no difference, when an interest wholly ceases, whether the jjarty entitled to that interest is living or dead. In both cases the suit is wholly at an end as regards him : — in both cases the benefit of it may by a new suit be extended to or against liis successor. 202 Of the Cessation of Nature of the 111 The Attorney General v. Foster {a), an informa- jjjg^ ^°*^^^ ' tion had been filed against the trustees, master, and ^ < ' usher of a school ; and before the suit came to a de- cree, three new trustees were appointed ; and after decree, upon the resignation of the master and usher, a new master and usher were appointed. The three new trustees and the new master and usher were thereupon brought before the Court by a supplemental information only, and not by an original information in the nature of a supplemental one, putting the origi- nal facts in issue ; and the three new trustees put in a joint answer, and the new master and usher put in another joint answer, by which answers they all in- sisted that they were not bound by the former suits, and made new defences, and claimed the benefit of the old defences made by their predecessors. Excep- tions to the new defence made by the new trustees were overruled by the Master and by Sir James Wigram, V. C. (5), on the ground that their appoint- ment to the ofiice of trustees had been before the hear- ing and date of the decree, and that they had the same right now to answer and defend, as if they had been made parties immediately upon their appointment; but exceptions to the new defence made by the new master and usher having been allowed by the Master, on the ground that they were appointed after the date of the decree, and were therefore bound by the defence of the then master and usher ; Sir Lancelot Shadwell, V. C, allowed exceptions to the Master's certificate, saying, " The new high master and usher came into an estate which was the same as their predecessors had, but not by reason of any privity with their predeces- sors. It seems to me to be the same case as against a (a) 1842, 1843, 6 Jurist, 1032, {b) 6 Jurist, 1032 ; vide etiam and 7 Jurist, 185. 2 Hare, 81. Interest during Life. 203 bishop or a parson. If a decree were made in a cause Nature of the New Proceed- in which a parson was a defendant, and then, the decree i^gg, being unexecuted, a change in the office should take ' place, and a supplemental bill, that is to say an origi- nal bill in the nature of a supplemental bill, should be filed against the new parson, it appears to me that the very fact of filing the bill admits that the defendant may make a defence ; and all that these gentlemen, as I understand it, have done in their answer, is this — they state some circumstances which may or may not have the effect of shewing that, though the decree in the original cause was right, which they do not dis- pute, yet that that decree ought not to be binding upon them ; that is all. And I can conceive myself a great variety of circumstances which might tend to shew that, admitting that the decree in the original cause was clearly right (because a decree is right, if, with reference to the things alleged in the cause, and the things proved in the cause, the decree, is right,) still when an original bill in the nature of a supple- mental bill is filed against persons who come into the same estate, but not by reason of privity with the former holders of the estate, and the question is whe- ther the decree shall be carried on against them, they may shew many reasons, speaking of it generally, why that decree should not be carried into effect against them." It is submitted that all the difficulty of the above case would have been avoided if a higher ground of objection had been taken by the defendants' counsel, and if the Attorney General had been compelled, as according to Lord Redesdale(c) he ought to have been, to bring the new trustees, master, and usher, before the Court by an original information in the nature of (c) Ld. Red. ed. 4, p. 72. 204 Of the Cessation of Nature of the New Proceed- ings, a supplemental information, putting the whole case in issue ayain, and praying specific relief ay ainst them. In that case the defences put in to the second information would have been quite independent of the former de- fences, and no question could have arisen respecting them. This second information would also have been carried on to a decree, independent of the former de- cree, in the usual way, and such second decree would have been " similar" to the first decree if the circum- stances of the cases made out were similar, and dis- similar to the former decree if the circumstances were dissimilar. The right to adopt against a successor a decree against his predecessor, with liberty to the suc- cessor to state special circumstances affecting his case, only arises in the peculiar case of tenants in tail{d), against whom the original suit is properly continued hy mere supjjAemental hill on account of their supposed identity in representing the whole inheritance ; and not in the case of a bishop, parson, or other corpora- tion sole ; these latter being entitled to their new de- fences on the higher ground of perfect independency of title. To the doctrine which treats a suit as terminated by the cessation of a party's interest, and obliges his suc- cessor to commence de novo by original bill, there are the same exceptions in cases of persons suing in auter droits as have been formerly pointed out in treating of Administrator the deaths of parties (e). Thus where an administra- durante mmori ^^j^j^ j^gg jjggj^ p;ranted durante minori estate, and the (etate. ° ... infant comes of age, and takes the admmistration upon himself, he claims not under, but independently of, the first administrator. Properly therefore an original bill in the nature of a supplemental bill ought to be filed by or against him in order to carry out the ob- Exceptions to the Rule. (d) Vide svpra, Chap. X. (e) Vide svpra, Chap. X. Interest during Life. 205 jccts of the original suit. But here, in consequence Exceptions of the interest of both administrators being fiduciary tothe Rule. only, the Court regards such interest as transmitted from one to tlie other, and allows tiie suit to be con- tinued by supplemental bill (/). It is true that there is an old authority which holds that where there is no will, and the parties are simply administrators, and not administrators cum testamento annexo, tlie general rule applies, and a new suit must be commenced ; particularly where the original party has not proceeded to a decree and an account (^); but Lord Redesdale makes no distinction between cases of administration durante minori cetate, cum testamento annexo, and cases sine testamento annexo, but includes all administration durante minori cctate in the exception to the general rule (Ji). And there is even a case (e) from which it might be inferred that no new step whatever was necessary to be taken by the infant, but this inference is corrected by later authorities. Lord Redesdale also includes in the exceptions Administrator to the general rule the case of an administration ^ye»- ^^"*^'"* '^ ' ^' dente lite determining during the suit(/0. New assignees in bankruptcy and insolvency, and New assignees new committees of lunatics or idiots, appointed on and insolvency. the removal of the former assignees and committees, are brought before the Court by the same process as those appointed on the deaths of the former assignees and committees, Avliich has been considered in a pre- vious chapter (/). If the party on whom the interest devolves is already {/) Ld. Red. ed. A, p. G4 ; sed bert, 31, where the circumstance vide Coke v. Hodges, KiSl, 1 Vern. is said not to abate the bill ; but 25. Shihbs V. Leigh, 1784, 1 Cox, 133, {g) Jones v. Basseit, 1701, Pr. says that there is no way of avoid- Ch. 174. ing a supplemental bill. (A) Ld. Red. ed. 4, p. G4. (A) Ed. 4, p. 64. (?) A7wn., 1602, Gary, by Lam- (/) Supra, Chap. X. 206 Of the Cessation of Exceptions before the Court, it is apprehended that the cessation ^to the Rule. ^ ^jp ^j^^ other party's interest will cause no defect in the suit ; but that, as in the case of the death of a tenant for life, not being a sole plaintiff or sole de- fendant, the suit will proceed as before, without fur- ther difference than the omission of such party's name in the subsequent proceedings. Rightful heir Another exception to the rule which requires a of a wron m'^^ P^^'ty claiming by an independent title, to commence heir. de novo, is found in the peculiar case of a person having been made a party to a suit under a character which he had no right to assume, while the party really en- titled to that character has been excluded from the suit. In such a case it appears that if the suit has proceeded to a decree, the party really entitled, if he desires to prosecute the matter, is not obliged to com- mence de novo, as would at first sight appear to be necessary, but may file a bill founded, not upon the facts of the case, but upon the decree already obtained, and praying that he may have the benefit of that decree, and that it may be reversed so far only as to place him in every respect in the situation of the party by whom the character has been wrongfully assumed. Thus in Oldham v. Ehoral{m\ where a re- ference had been directed to tlie Master to find the heir at law of Samuel Oldham, and he reported that there was no heir ex parte paterna, but that Eboral was the heir ex parte materna ; and Eboral was ac- cordingly brought before the Court by supplemental bill, and the possession of a freehold estate decreed to him ; and afterwards a Mrs. Oldham and other per- sons were discovered to be the heirs at \2isv ex parte paterna of Samuel Oldham, and they accordingly filed a bill against Eboral and the other parties on the (m) 1833, 1 C. P. Cooper, temp. Brougham, 27. Interest during Life. 207 record to the former suit, praying for the benefit of Exceptions the proceedings in the former suit, and that the same i *° ^'^^^ ^"^^' i might be reversed so far as the title of Eboral was tliereby set up in opposition to them in their character of heirs at law ; Lord Brougham, C, made the decree sought for by the bill. The forms of proceedings upon the supplemental bills, and original bills in the nature of supplemental bills, mentioned in this chapter, correspond with those described concerning the bills of the same names mentioned in former chapters. 208 CHAPTER XIY. OF EVENTS WHICH DO NOT ALTER THE PARTIES. Nature of TiiERE are Several events which may occur in the ^tie erne y.^ (.Qypgg ^f ^ suit in equity, and which must be brought before the Court before the full effect of the suit can be obtained, but at the same time do not vary the in- terest of any person in the matter so as to make any alteration necessary in the parties to the suit. Thus where a plaintiff has an inchoate right at the time of filing his original bill, he may afterwards complete that right by some act. The suit then becomes defec- tive for want of such act being stated to the Court, and it will be necessary for the plaintiff to bring it before the Court in the manner mentioned hereafter. Amendment. In some few instances such an event may be intro- duced into the original bill by way of amendment. An executor proving a will, or a person taking out administration after the institution of the suit, being the plaintiff, may state those flicts to the Court by amendment of the original bill. Thus in Ihimphreys v. Humphreys {a), where a plain- tiff filed her bill as next of kin of an intestate with a risht to administer to him, and a demurrer thereto was allowed with liberty to amend, and thereupon the plaintiff took out letters of administration to the in- testate, and charged the same by way of amendment, Lord Chancellor Talbot overruled a plea that the taking out administration was subsequent to the ori- {a) 1734, 3 P. W. 350. Of Events which do not alter the Parties. 209 Q-iniil bill, and therefore ouoht to have been brought be- Nature of ^ , ' , 1 , , MI 1 1 1 the Remedy. fore the Court by supplemental bill and not by amend- y \ > ment ; observing- th;it the administration wlien taken out related back to the time of the death of the intestate. From the language of this decision it is apprehended that the ftict of a defendant's proving a will or taking- out administration after the institution of tlie suit, may equally be introduced by the plaintiff into the original bill by way of amendment. So it appears that matter occurring between the bill and answer, and stated by v/ay of defence in the an- swer, may sometimes be introduced into the original bill by amendment. The case of Knight v. Matthews {c) gives us an in- stance of such a proceeding. In that case the defend- ant Matthews had commenced an action against Knight, the plaintiff, to recover back a certain dej)osit, being- part of the purchase money of a house, and Knight had filed a bill to compel Matthews to complete the purchase. After the bill was filed the action was tried, and the verdict was in favour of Matthews ; who thereupon sent back the key of the house to Knight''s solicitors, and stated these facts in his answer to the hill. Thereupon Knight amended liis bill by stating the verdict and the sending of the key, and by charging that the verdict had given only nominal damages, and that the solicitors had refused to take the key ; and it was held that these amendments were good ; " For," said Sir Thomas Plumer, V. C, "The plain- tiff, when he filed his bill, [on the 27th of July, 1815,] stated the matters as they then stood. The answer was put in on the 14t]i of November, 1815. In the interval many circumstances might have occurred ; and the defendant, when he puts in his answer, must (c) 181G, 1 Madd. 56G. P 210 Of Events which do not alter the Parties. Nature of state the facts as they then are ; and if circumstances V '^ ^"^ ^'i are introduced into the answer, which occurred sub- sequently to the filing of the bill, the plaintiff must be allowed to make amendments to the bill, so as to shew that such new circumstances are not of the colour the defendant represents them, and so as to obtain a com- plete answer as to such circumstances. There must be • some mode of meeting the defence. It is said it can only be done by supplemental bill. Would not that occasion bills without end 1 — for then all facts occur- ring between the bill and answer must be stated by supplemental bill, and thus, fresh facts occurring, many such bills might be necessary." Supplemental But as a general rule, — and even in cases similar to ^^^^' the above when the proceedings are too far advanced to allow of amendment, — the party conducting the suit must file a supplemental bill, stating the new matter necessary to be brought before the Court, and praying the relief consequent upon such new matter. Nature of the It is not every event which may occur subsequently ^Mat^r" ^ to the institution of a suit, that will form a good ^ V '' ground for a supplemental bill ; even without having regard to the few instances above-mentioned of the in- troduction of such events by way of amendment. The supplemental matter may be such as cannot be brought forward in the same suit at all. Bill will not lie Thus where the title of the plaintiff is absolutely bad"ft?e.^ ^ ^^^ ^^ *^^ ^^^'^^ of filing the original bill, he cannot support it by bringing forward a new event by which he acquires a good title after the filing of the original bill. Thus in Tonkin \. Lethhridge{d), a person claiming as heir of a mortgagor filed his bill for redemption of the mortgage. The defendant denied the heirship of the plaintiff; whereupon the plaintiff amended his bill {d) 1811, G.Cooper, 43. Of Events icJiich do not alter the Parties. 211 by stating that he luul purchased the interest of the Nature of the real heir since the institution of the suit, but called Matter!"^'^ ^ for no further answer. At the hearing an issue was ^^ . ' directed to try whether the plaintiff was the real heir, and he was found not to be so ; whereupon he filed a supplemental bill stating a confirmation of the sale by the real heir. On demurrer for that the new matter was not matter of supplement. Lord Eldon said, " To entitle a plaintiff by supplemental bill to the benefit of the former proceedings, it must be in respect of the same title in the same person as stated in the original bill. If in the present case the title now relied on was sufficiently stated in the original bill, that is good ground for a rehearing of the cause ; if it is not, then any third person as well as the jalaintifF might file a supplemental bill. If two original bills had been filed to redeem, one by the present plaintiff', and the other by Kekewich(the real heir), and then the issue at law was found in favour of Kekewich, whereupon the plain- tiff' had bought Kekewich's title, it is clear that the purchase should be stated by supplemental bill (e) in Kekewich's suit, and not in the present plaintiffs." The bill however was dismissed without prejudice to the plaintiff"s right to file a new original bill. So where a solicitor instituted a suit for payment of costs due to him from a client, and it appeared from the auLiwerthat he had not delivered a signed bill con- formably with the Act of Parliament, and a bill duly signed was subsequently delivered, and that fact slated by a supplemental bill ; it was held that the title was not cured thereby, and that the supplemental bill would not lie (/). (e) It is apprehended that this substituted for one anotlier in the should be Original Bill in the nature books. Story's Eq. PL 278. of a Supplemental Bill. But Mr. (/) Pritckardy. Draper, 1830, Justice Story remarks, very truly, 1 R. & M. 191. that the two terms are continually "' "^ Of Events which do not alter the Parties. s^u'^'^^mIntal ^"^^ where a defendant, in answer to a bill by the Matter. assignees of a bankrupt, alleged that the plaintiffs had not obtained the necessary consent to the institution of the suit, whereupon the plaintiffs filed a supplemen- tal bill stating that since the filing of the original bill they had obtained the necessary consent, a demurrer was allowed {g). However, it appears tliat under peculiar circum- stances the Court will depart from the strict letter of this rule. Thus where a plaintiff claimed as having* been nominated by his father to a church, and filed his bill for an account of the profits, he afterwards amended his bill by stating that the equitable right of nomination claimed by his father had by his father's will, and a certain deed of release from his sisters, be- come vested in the plaintiff. It appeared that the plaintiff's title could not have been sustained under the instrument executed by his father, and that the deed of release from his sisters formed an essential part of his title ; but it was held that as that deed was not executed until after the bill was filed, the Court could not enter into the consideration of the plaintiff's claim, becauj^e, as the record then stood, a decree affirming the plaintiff's title must have reference to the date of the bill, and would affirm the title in the plaintiff «^ that time. However, as great expense had been incurred. Sir John Leach, M. R., directed the cause to stand over in order that the plaintiff might file a supplemental bill for the purpose of regularly introducing- the release from his sisters (//). Thenewevent It appears tliat the new event cannot be brought terial. before the Court by supplemental bill, unless it is ab- solutely necessary to put it in issue for the purposes {fj) Kinij V. Tullock, 1829, 2 Lawson, 189. Sim. 409 ; vide etiam Davidson v. {h) Mutter v. Chauvel, 1828, 5 Fo/ey, 1791,3 Bro. C. C. 598 ; and Russ. 42. Bijme V. Byrne, 1842, 1 Conn. & Of Events ichich do not alter the Parties. 213 of t!ie suit. Thus, in a suit in Ireland, wliere a tenant Nature of the filed a bill against his landlord for a certain account, Ma«er'"*^' and for an injunction to restrain an action of eject- ^ /••• * ment, and on default by the tenant in complying with a certain order, the injunction was dissolved, where- upon the landlord executed his habere ; an objec- tion was made at the hearing that as the possession had been changed pending the suit, by the execution of the habere, and as it was no part of the prayer of the original bill to have the possession restored, the plaintiff ought to have filed a supplemental bill to put that matter in issue, and pray that specific relief. But Lord Redesdale said that it was not the practice in England to file a supplemental bill where there was a mere change of possession on dissolving an injunc- tion, and where there were no accompanying circum- stances, so that the only object of the supplemental bill would be to state that fact ; — because it uas a fact within the view of the Court (i). The new event must be material and beneficial to it must be the merits of the original cause, and not merely such material to the o ... merits and not as bears as evidence upon the facts in issue in the to the ei/rfe^ce. original cause. Such, says Mr. Justice Story (A), seems to be the result of Lord Eldon's reasoning in Milner v. Harewoodil). In that case the plaintiff filed a supplemental bill stating new facts which happened after publication in the original cause, and which he contended would be material and useful in evidence ujjon the hearing of the original cause. But Lord Eldon said, " there is no recollection of a supple- mental bill of this kind ; and if a ne\v practice is to be settled, my opinion is that when a case arises where either a conversation or an admission of a defendant becomes material after answer or replication, or, as in ((■) O'Connor v, SpaiyM, 1804, {k) Eq. PI. 274. 1 Sch. & Lef. 305. (/) 1810, 17 Ves. 148. 2i4 Of Events which do not alter the Parties. Nature of the this case, after examination of witnesses in the origi- Stter'"^'^*^^ nal cause, or if a new fact happens after publication ^^ / ' which it is material to have before the Court in evi- dence when the original cause is heard, it is much better that the examination of witnesses if required should be obtained on a special application for the opportunity of examining and for having the deposi- tions read at the hearing; or if discovery is required, that the party should file a bill for that purpose merely ; and if relief is required, that the answer comprehending the discovery should be read at the hearing of the original cause."*' In Adams v. Dowding {m) Sir Thos. Plumer, V. C, after referring to the above case of Mihierv. Harewood, said that " where there is no alteration in the interest of the parties, nor any particular circumstance re- quiring further discovery, but where only a fact has occurred which might be proved on taking the ac- count prayed by the original bill, and the relief is not varied by the supplemental matter, but the plaintiff might, under the original bill, have the relief prayed by the supplemental bill, in such a case a supple- mental bill is improper." The case of Morris v. Ellis (n) however seems to be opposed to the above doctrine. In that case a bill was filed by a rector for an account of tithes, and the occupier set up a modus as a defence, and died, where- upon the suit was revived against his representatives. Afterwards the Tithe Commutation Act(o) having passed, and the commissioner appointed thereunder having decided in favour of the modus as between the rector and the then occupier ; and the rector having thereupon brought an action against the landlord and obtained a verdict against the modus ; it was held that {m) 181G, 2 Madd. 53. (o) G & 7 W. 4, c. 71. (m) 1842, 6 Jurist, 547. Of Events which do not alter the Parties. 215 these subsequent facts were properly introduced in a Nature of the supplemental bill, as matter of evidence against the M^tLr!^^'^*^ representatives of the deceased occupier. * .— — ' But where the new matter is such as will conjiriu the plaintiff's case, and is not merely good as evidence in the cause, a supplemental bill will lie for discovery of such matter. Thus where a purchaser of an estate filed a bill for specific performance against a vendor, who refused to complete the contract on account of the price being inadequate, and after issue joined and witnesses examined, but before publication, the vendor contracted to sell the estate to a third person at a less price than the price agreed upon in the former con- tract; it was held, on demurrer, that a supplemental bill by the plaintiff, for discovery of certain corres- pondence relative to the second contract, was good, inasmuch as it was useful in support of the plaintiff's case {p). If a plaintiff wishes to obtain a writ of ne e.re«i Not necessary 1 p 1 , 1 , 1 1 in order to ob- regno agamst a detendant, ne must, as a general rule, ^^jj^ ^ „g ^^^^f pray for the writ by his bill ; but if the defendant's regno. intention to go abroad comes to the plaintiff's know- ledge after the filing of the bill, he may obtain the writ upon an affidavit of the fact of such intention, without being obliged to state that fact in a supplemental h\\\{q). It is true that in Sharp v. Taylor (r).^ Sir Lancelot Shadwell, V. C, said that a supplemental bill must be filed for that purpose ; but in that case it appeared that there had been sufficient ground for praying the writ, at the filing of the original bill, and that addi- (j)) Usborne v. Baker, 1817, 2 the materiality of the new matter Madd. 379. In this case the Court could only be ascertained by such held on a demurrer for want of ma- reference. teriality in the new matter, that it (q) Bamed v. Laing, 1843, 7 had a right to look into the original Jurist, 383. bill and answer, although not dis- {>•) 1840, 11 Sim. 50. tinctly referred to them ; because 216 Of Events which do not alter the Parties. Nature of the Supplemental Matter. Where the subject matter of the suit has become al- tered. tioiial circumstances had afterwards come to tlie know- ledge of the plaintiff. " That case therefore," said Lord Lyndhurst, C, "stands by itself (5)." A supplemental bill may be filed for the purpose of stating an alteration which has taken place in the actual subject matter of the suit, since the institution of the suit, if such alteration has the effect of varying the relief prayed, or of affecting a decree already made in the suit. Thus in Nelson \. Bridges {t) the plain- tiff, Nelson, filed a bill for specific performemce of a contract by one of the defendants, Bridges, to allow the plaintift' to raise stone under a certain piece of land, the plaintiff having already entered and com- menced working, but Bridges having in the mean time let the quarry to the other defendant Woodward. Afterwards Bridges recovered possession in an action of ejectment against Nelson, and Woodward entered and commenced working; and a decree for specific per- formance was made in Nelson's suit. Upon this Nel- son filed a supplemental bill against both defendants, praying for a reference to the Master to ascertain the damages sustained by the plaintiff by Woodward's entry and working, and that the amount might be paid by the defendants; and upon an objection being taken to the supplemental bill, for that the plaintift' ought to have proceeded under the decree for specific performance to get his licence antedated, and then to have proceeded for his damages by an action at law, Lord Langdale, M. R., said ; " It has already been declared that the plaintiff" is entitled to a specific per- formance of the agreement ; but, pending the proceed- ings, the very subject of the agreement to which the plaintiff has by the decree been declared entitled, has been abstracted. * * * -^- * if that circum- (a) 7 Jurist, 383. (0 1839, 2 Beav.239. Of Ecents ichich do not alter the Parties. 217 stance had been known at the first hearing-, I cannot Nature of the have the least doul)t but that the Court would, in the Mauer*'"^''^ exercise of its jurisdiction, have put in a due course of ^ . ' investigation the question of the amount of coni})en- sation which ought to be made to the plaintiti"; but it was not brought to the attention of the Court at that time, and a supplemental bill is now filed for the pur- pose of obtaining- compensation. It is said that such compensation might originally have been had at law ; or, if not, that at least it might have been obtained at law by perfecting the decree for the specific perform- ance of the agreement in some particular form ; but I am of opinion that it is not necessary for this Court, when it has once entertained jurisdiction in a case, to resort to that circuitous mode of giving relief." His Lordship then declared that the plaintiff was entitled to relief, and that the amount ought to be ascertained by an action at law, because the profit made by the defendant was not the measure of the damages done to the plaintiff, the quarry not having been worked in a way to make the most of it, and therefore it was a case of damages and not of account ; and he added, that the proper mode of assessing the amount of the damage would be to require the defendants to admit such facts as were necessary, and to allow the plaintiff to bring an action to ascertain quantum damnificatus. A supplemental bill of interpleader will lie respect- Where the ins: an addition to the original subject matter. Thus subject matter where after the institution of an interpleader suit become aug- respecting a sum of £496, a further sum of £G Avas ™^"'^'^ " received by the plaintiffs, and a claim was then made by the defendants for interest on the £496 whilst in the hands of the plaintiffs ; and the plaintiffs filed a supplemental bill of interpleader respecting the £6 and the interest on the £496 ; it was held that the 218 Of Events which do not alter the Parties. Nature of the supplemental suit was not irregular as to the £6, Surpiementai ^gcause it had been received after the institution of Matter. "» ■, I the original suit, but that it was irregular as to the interest on the £496, because that was due at the time of the institution of the original suit, and was therefore proper subject for amendment (w). To alter the A supplemental bill will lie for the purpose of rehef when the altering the relief prayed by the original bill, when become impos- that relief has become impossible from subsequent proceedings. Thus wliere a bill was filed against Peters, Carroll, and Hamburger, to have certain bills of exchange obtained by Peters, and indorsed by him to Carroll, and by Carroll to Hamburger, delivered up to be cancelled, and for an injunction to restrain an action commenced by Hamburger against the plaintiff, and for further relief, the injunction was refused. Afterwards, Peters having fled to America, the plaintiff filed a supplemental bill against Ham- burger alone, stating that, in consequence of the re- fusal of the injunction, the action had been j)roceeded with, and judgment obtained, and that the plaintiff" had paid the damages and costs recovered against liim ; and alleging that there had been various ad- missions, and correspondence containing admissions, of the truth of the statements in the bill, and praying repayment of the damages and costs. On a general demurrer to the supplemental bill for want of equity, and for that Carroll was not made a party, Lord Langdale, M. R., said ; " The case for the demurrer has been argued in the only way in which it could be argued, namely, that a supplemental bill was un- necessary ; and thence it is inferred that it ought not to have been filed at all, and that the general denuirrer ought to be allowed. I do not see the force (w) Crawford v. Fisher, 1842, 1 Hare, 43G. Of Events which do not alter the Parties. 219 of that inference. A new fact is introduced, and Nature of the new circumstances are stated to have taken place, in Ma't'ter!"^"*" consequence of which the plaintiff cannot have the ^ . ' specific relief prayed by the original bill. But in consequence of the circumstances stated in the sup- plemental bill, the plaintiff claims to be entitled to other relief, and instead of having the bill delivered up, he asks for repayment of the money. It is clear, if the suit were carried to a hearing, the Court could not grant the relief prayed by the supplemental bill without the introduction of the new facts. But it is said that that might be done by petition and affi- davit ; and if there was neither a supplemental bill, nor petition and affidavit, the new fact might be in- troduced by admissions between the parties ; and if the parties refused to make such admissions, and the probability of such a case appears here, the Court will, in the absence of other means, refer it to the Master to inquire. If the Court can plainly see, and cases of that description have occurred, what sj)ecific relief ought to be granted in consequence of a new fact having occurred, it will grant that relief at the hear- ing. But has not the plaintiff a right to anticipate all the difficulties which may arise at the hearing ? The question here appears to be whether the plaintiff has such a right or not ; and I think, looking at the pleadings, the plaintiff" has a right to bring the new matter forward by supplemental bill." His Lordship however said that Carroll was a necessary party to the supplemental bill, and allowed the demurrer on that ground (x). In a suit for an account of receipts and profits, For an account such account may now be taken up to the time of^j^j ^^^^^^ taking it, and is not confined to an account up to the (.r) PinJcus v. Peters, 1842, C Jurist, 431. 220 Of Events which do not alter the Parties. Nature of the filing of the Original bill, although it appears that MaUer""^" ^ formerly the contrary ]:>ractice prevailed, and that a ' . ' new suit was necessary in respect of receipts and pro- fits subsequent thereto. The same is now the prac- tice with respect to bills for tithes, although formerly it was otherwise {y). But where the account arises in consequence of the suit, there the account cannot be taken without filing a supplemental bill for the pur- pose. Thus where a bookseller filed a bill against another bookseller for piracy in publishing a certain work, and obtained an injunction against him; and the defen- dant by that bill received notice for the first time that his author was under a covenant with the plaintiff not to write such a work, and upon having the injunction dissolved undertook to keep an account of his profits until after the trial of an action at law, to be brought by the plaintiff" to try the piracy ; it was held that as a plaintiff* must establish a title to relief at the time of filing his bill, and as the plaintiff' in this case had no such title to relief at the time of filing his bill, the defendant having only received notice, by that bill, of the covenant above mentioned, an account of the re- ceipts and profits subsequent to the filing of the bill could not be decreed without the plaintiff''s filing a supplemental bill alleging that the defendant had continued to publish the work after the filing of the original bill {z). Will not lie to A Supplemental bill on matter arisen subsequent to Sready*^macie. ^^'^ ^^^"8" ^^ ^^^^ Original bill will not lie for the pur- pose of altering a decree already made in the cause. Thus where after a decree directing incumbrances to be paid according to priority, the plaintiff", a creditor, ob- (y) So said in Barfichl v. Kelly, (r) Barf eld v. Kelly, nli supra. 1828, 4 Russ. 355. Of Events which do 7iot alter the Parties. 221 tained an assignment of an old niorto-ai^e, and filed a Nature of the ° I'l- 11- 1-1 Supplemental bill to have the advantage which it would give him by Matter. way of priority over the demands of some of the de- ^ fendants, a demurrer was allowed, because such bill was against the usual course of the Court. For though it was a bill to vary a decree, yet it was neither a bill of review, nor a bill in the nature of a bill of review, which are the only kinds of bills that can be brought to affect or alter a decree, unless the decree has been obtained by fraud («)• The general form of the bill in question must be Form of the . , , , , 1 . .• \. 7- iU Bill- Parties, guided by the same rules, mutatis mutandis, as those g^^. already given in the second chapter of this treatise * « ' respecting supplemental bills for introducing new matter existing at the time of the institution of the suit. As to the parties to the bill, we have before re- marked that a party conducting a suit has a right to conduct it in his own way. As, therefore, the effect of a defendant's attempting to introduce a new event into the suit by filing a supplemental bill, would be to take the conduct of the cause from the plaintiff, it is only the plaintiff who can make use of the remedy in question, at least before decree. The bill ought in general to be filed against the same persons as were parties to the original bill, because, if the latter was properly framed, all the parties to it will be interested in the new matter. If however they are not all inter- ested in it, the supplemental bill ought, it is appre- hended, to be filed against those only who are inter- ested in it. In Jones v. Jojies {b), there is a dictum of Lord Hardwicke's, that to a supplemental bill filed for new let/ (a) Coop. Eq. PI. 217 ; IVorf- 811 ; S. C. 2 Ves. sen. 571, 576. f V. Birkhead, 1754, 3 Atk. 809, {b) 1745, 3 Atk. 217. 222 Of Events which do not alter the Parties. Form of the matter arisen since the filing of the original bill, all Bill, Parties, ^^^ defendants to the original bill must be parties. ^ y . > So in Greenwood v. Atkinson{c), Sir Lancelot Shad- well, V. C, says; "Where a supplemental bill is filed for the purpose of putting in issue a new fact, it is right to make the original defendants parties to it." The above expressions are very general, but they seem to be founded on this reasoning ; — that as the supplemental matter is not merely a change in one of the parties interested in the suit, but some material addition to the original subject matter of the suit, every defendant will be as much interested in ques- tioning it, as he was in questioning the original sub- ject matter, and therefore must be made a party to the supplemental bill, in order to have an opportunity of raising such question. It only remains to observe that all the proceedings upon such a supplemental bill as is now in question will be similar to those already set forth in the second chapter of this treatise, with respect to the supple- mental bills there spoken of. (c) 1832, 5 Sim. 422 ; vide etiarn Pinktts v. Peters, 1842, 6 Jurist, 431, and siipra in this chapter. 223 ADDENDA. Since the earlier part of this work was printed, the Amendment Vice-Chancellor of Eng-laiul has confirmed the opinions menta^Biu" which he had previously expressed on the three follow- ^ < ing points ; — first, that new matter existing at the time of filing the original bill, if it contradicts the original issue, is matter for amendment only, and not for supple- mental bill («) ; but that, secondly, if it does not con- tradict the original issue, the plaintiff may, after re- plication, either apply for leave to amend, under the Fifteenth Order of 1828, or he may file a supplemen- tal bill, at his option (&) ; and thirdly, that if he adopts the latter course, the supplemental bill may be filed without the leave of the Court, the Fifteenth Order being applicable to amendments only, and not to sup- plemental bills (c). Such are the points decided in the recent case of Pemherton v. Walford{d). In that case a supplemental bill had been filed after replication, to bring forward new matter which had occurred prior to the filing of the original bill. It appears that the new matter was merely an addition to the original case, and not a con- tradiction of it. On a demurrer for that the new facts were matter for amendment, and not for supplemental bill, and that therefore the case came within the meaning of the Fifteenth Order of 1828, Sir Lancelot Shadwell, V. C, said, " I have nothing to shew me (a) Supra, p. 12. (c) Ihid. p. 13. {h) Ibid. pp. G, 7. (.(Z) 1843, 7 Jurist, 364. 224 Addenda. Amendment and Supple- mental Bill. that a party is, by the Fifteenth Order, deprived of a right wliich he had before that Order, of filing- a sup- plemental bill, and putting in issue matter discovered since the filing of the replication : — that Avas the old practice, and prima facie that right remains In the case of T/ie Attorney-General v. The Fish- mongers Company (e). Lord Cottenham referred to the two cases of Colclough v. Evans and Crompton v. Wombwell, and seemed to think that there was some inconsistency between them ; but I think the real line of distinction between those two cases was very plain. In Colclough v. Evans the plaintiff amended his bill, but called it a supplemental bill, A demurrer was put in. The grounds upon wdiich I allowed the demurrer were, that the thing called a supplemental bill was virtually an amendment, because it sought to state facts diame- trically opposite to what had been stated in the original bill ; and though it was reasonable to have the matter clearly stated upon the pleadings, yet, as the proper way for so doing was by amending the original bill, therefore I said I would not allow that thing called a supplemental bill to be made use of, when it was plain that it was a case for amendment. The second case, Crompton v. Wombwell, was the common case of a sup- plemental bill filed after the time at which amendment could be allowed. What the Lord Chancellor said in The Attorney General v. J'he Fishmongers' Company, does not at all prejudice the question." The reporter of the above case of Pemberton v. Wal- ford quotes Lord Cottenham's words — " If that is to be done by supplemented bill which might be done by amendment, the Court icould require as much strictness as it icould require for the purpose of ame7idment, if leave icere required {f)'' — as deciding that the leave of (p) Supra, p. 13. (/) A Myl. & Cr. 9. Addenda. 225 tlie Court is necessary for filing the supplemental bill, Amendment in opposition to Sir Lancelot Shad well's opinion. But nientai'Biu" he surely misapprehends His Lordship's meaning. *• ^.^ ' The words " if leave were required'^ over-ride the whole sentence, and not merely the latter part of it. With submission, His Lordship's meaning is simply this ; — " I avoid the question as to leave ; for, if leave were required, the supplemental bill would require as much strictness as the amendment : therefore we have this alternative ; — if leave is not required, no order is necessai'v ; — and if leave z's requii-ed, the motion is too general." The doctrine laid down in a former passage (^), that Billof Revi- such part of a bill of revivor and supplement as is a ^"piement!^ bill of revivor, is distinct from such part as is a bill of "^ -■ ' supplement, is confirmed by the recent case o^ Egre- mont v. Cowell{h). In that case, on a motion by the defendant to discharge the usual order for revivor, which had been obtained upon the filing of a bill of revivor and supplement, on the ground that the new suit ouo-ht to have been brouoht to a decree, Lord Langdale, M. R., held that the course which had been adopted was the proper one ; namely, that of reviving the suit by the common order, and then proceeding to take a decree upon the supplemental matter. We have seen (i) that where a suit abates by tlie Abatement death or marriage of a sole plaintiff, the new plaintiflr^[^f|,^^,jj,y/^^^" must revive against all the defendants. To this we ^ -— ' may add, that even if the bill has been taken p?-o confesso, by order, against any defendant, such defend- ant must nevertheless be made a party to the revivor suit, in order that the new plaintiff may obtain (^) Supra, p. 99. (;) Supra, pp. Ill, 131. {h) RolU, May 5, 1313. 226 Addenda. Abatement the benefit of the order for taking the bill pro con- after Bill taken ^ ,. or pro confesso. J^SSO \k}. ^ We have seen that where a personal representative, Administrator jpj.- •. ^- ^ ^ • ^ de bonis non. ^ deiendant in a suit, dies, and his personal represen- ' tative is not the personal representative of the original testator, the suit is revived against the administrator de bonis non of the original testator (Z). Under these circumstances it has been decided, that the personal representative of the first personal representative is not a necessary party to the suit, and therefore ought not to be brought before the Court, either by bill of revi- vor, or by any other process, because the right to call upon him for an account of the first personal repre- sentative's assets, falls, notupon the plaintiff, but upon the administrator de bonis non(m). {k) Marten V. Whichelo, ISil, 1 (m) Phelps v. Sproule, 1831, 4 Cr. & Phil. 257, 259. Sim. 321. (l) Vide supra, p. 153. APPENDIX PRECEDENTS, a2 PRECEDENTS. I. SupplemtnUd Bill to introduce New Matter which existed at the Time of Filiny the Oriyinal Bill. — Vide Chaj}. II. I>j Chancery. To the Right Honorable, kc. Humbly complaining-, sheweth unto your Lordship I. Supple- your orator Peter Barnes of &c., that on or about ^^^nt^i ^'11- &e. your orator exhibited his original bill of com- Original bill plaint in this Honorable Court against John Willis, ^y^P"^*=^^ser the defendant hereinafter named, as defendant thereto, foIm^an"e*by^'* thereby stating a certain memorandum of ao-reement *'^^ '^^''" °^*''^ ~ vendor. dated tlie 5th day of July 1839, and made between Edward Willis therein described of the one part, and your orator of the other part, and signed by the said Edward Willis, whereby the said Edward ^V^illis agreed to sell to your orator a certain freehold close called &c., therein particularly described, and of which the said Edward Willis was seised in fee, for the sum of £560 ; And further stating the delivery by the said Edward Willis of the abstract of his title, and the acceptance of such title by your orator ; And further statiny the death of the said Edward Willis intestate, and that he left the said John Willis his only son and heir at law ; and that letters of administration of the estate and effects of the said Edward Willis had been granted to the said John Willis by the Prerogative 230 Precedents. I. Supple- Court of Canterbury ; And further stating applications V ™^" ^ ' ' ; on the part of your orator to the said John Willis to perform the said agreement so entered into by his father as aforesaid, and his refusal to do so ; And charging that the said close called &c. formed part of a considerable estate called Heseltine, the whole of -which had, before the date of the said contract for sale, been mortgaged by the said Edward Willis to one John Saunders for £12,000, which mortgage debt was still due and owing ; And charging that the said Edward Willis would, if living, be bound to redeem the said mortgage, in order to convey the said close to your orator free from incumbrances, and that the said John Willis was bound to do so to the extent of his father's assets, which your orator charged were amply sufficient for the same ; And praying that the said John Willis might be decreed specifically to perform the said agreement so entered into by the said Edward Willis as aforesaid, and to convey, and procure all proper parties to join in conveying, the said close comprised in the said agreement to your orator, or as he should direct, upon your orator paying to the said John Willis the sum of £bQO, which your orator thereby offered to do, and in all respects to perform the said agreement on your orator's part ; and in case the said John Willis should not admit assets of his said father, sufficient to enable him to perform the said agreement, then that the usual accounts of the real and personal estate of the said Edward Willis might be taken ; and that your orator might have such further or other relief in the premises as the circumstances of his case might require, and to your Lordship should seem meet. Appearance And your orator further sheweth that the said John alieJngTprior ^^illis, being duly served with process, appeared to Precedents. 231 your orator's said bill, and put in his answer thereto, I. Supple- whereby he alleged, among other things, that he could v_ not perform the said agreement of the 5th day of July mortgage on 1839, without first redeeming the said mortgage so *^® Property, made to the said John Saunders as aforesaid, and that the assets of the said John Willis were not sufficient to enable him so to do. And your orator further sheweth that the said Replication, answer has been replied to by your orator, and wit- nesses have been examined on both sides, but publica- tion has not yet passed ; as by the said bill and pro- ceedings, now remaining as of record in this Honor- able Court, reference being had thereto, will appear. And your orator further sheweth, by way of supple- Supplemental ment, that your orator has lately, and since the ex- ™ort^agee^is amination of witnesses in the said cause, discovered, willing to join as the fact is, that the said John Saunders now is, "^ conveying. and always since the date of the said agreement has been, ready and willing to concur in conveying the said close to your orator, discharged from his said mortgage, upon receiving your orator's purchase money in discharge, 2)T'o tanto^ of the said mortgage debt. And your orator charges that such information was Discovery of first given to your orator by means of a letter ad- ^entaf ma'tter. dressed by the said John Saunders to Mr. Luke, your orator's solicitor, and dated &:c., part of which was in the words and figures following, that is to say; — " Mr. Willis's refusal to carry into effect his agree- ment with Dr. Barnes is unaccountable to me, because he knows that I have always been willing, and even desirous, to confirm the sale, and to release the pre- mises from my mortgage on receiving the £560 to- wards my debt. This in fact was understood between his father and myself at the time when the sale to 232 Precedents. 1. Supple- mental Bill. ' < Charges. Calls for answer. Dr. Barnes was made ;" as Ly such letter, reference being had thereto, Avill more fully appear. And your orator charges therefore that it is unim- portant whether the said John Willis has assets of his father sufficient to redeem the mortgage debt so due to the said John Saunders as aforesaid, inasmuch as the said John Saunders is willing to be partially re- deemed, and the purchase money of your orator is sufficient for that purpose. And your orator charges that the said John Willis ought to be decreed to join with the said John Saun- ders, (whose concurrence your orator undertakes to procure,) in conveying the said close to your orator, upon payment by your orator of the said sum of i!560 to the said John Saunders, in part discharge of his said mortgage debt. To the end therefore that the said defendant may, if he can, shew why your orator should not have the relief hereby prayed, and may upon his corporal oath, according to the best and utmost of his knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the seve- I'al interrogatories hereinafter numbered and set forth, as by the note hereunder written he is required to answer ; that is to say ; — 1. Whether on or about &c. or at some other and what time, your orator did not exhibit his original bill of complaint in this Honorable Court against such person, and of or to such purport or eftect, as hereinbefore in that behalf stated, or against some other and what person, and of or to some other and what purport or effect, or how otherwise. 2. Whether thereupon such proceedings were not had in the said cause as are hereinbefore in that behalf stated, or how otherwise. Precedents. 233 3. Whether your orator has not, and whether not I. Supple- lately, and whether not since the examination of wit- , '"^"'^^^ ^^"'y nesses in the said cause, or at some other and what period, discovered, and whether it is not the fact, that the said John Saunders now is, and whether not that he always since the date of the said agreement has been, ready and willing to concur in conveying the said close, to your orator, discharged from his said mortgage, upon receiving your orator's purchase money in discharge jiro tanto of the said mortgage debt, or how otherwise. 4. Whether such information was not first jiiven to your orator by means of such letter as hereinbefore in that behalf stated, or some other and what letter, or by some other and what means, or how otherwise, and when was such information first given to your orator. 5. Whether such letter as is hereinbefore mentioned to bear date &:c. was not addressed by such person to such person, and whether it was not of such date, and partly in such words and figures, or of or to such purport or effect, as hereinbefore in that behalf stated, or addressed by some other and what person or per- sons, to some other and what person or persons, of some other and what date, and (with respect to the part thereof hereinbefore in that behalf mentioned) in some other and what words and figures, or of or to some other and what purport or effect, or how otherwise. 6. Whether it is not, and whether not for tiie rea- sons hereinbefore in that behalf given, unimportant, for the purposes of tliese suits, whether the said defendant has assets of his father sufficient to redeem the said mortgage debt, or how otherwise. 7. Whether the said defendant ought not to be decreed to join with the said John Saunders in such conveyance as hereinbefore in that behalf stated, or 234 Precedents. I. Supple- in some other conveyance of the same nature, upon , ^^ental Biil.^ ^^^^I^ payment by your orator as hereinbefore in that behalf mentioned, or some other and what payment, or how otherwise ; and, if not, why not. Prayer. And that your orator may have the same relief against the said defendant, as he might have had if the facts hereinbefore stated and charged by way of supplement had been stated in your orator's said original bill. And in case the said defendant shall continue to allege that he has not assets of the said Edward Willis, sufficient for the redemption of the mortgage debt so due to the said John Saunders as aforesaid, then that he may be decreed to join with the said John Saunders in conveying the said close comprised in the said agreement of the 5th day of July 1839, unto your orator and his heirs, or as he shall direct, upon your orator paying to the said John Saunders the said purchase money or sum of £560 towards discharge of the said mortgage debt ; your orator hereby offering to pay such sum, and in all respects to perform the said agreement of the 5tli day of July 1839 on his part, and also undertaking to procure the concurrence of the said John Saunders in such conveyance as aforesaid ; and that your orator may have such further or other relief in the premises as the circumstances of his case may require, and to your Lordship shall seem meet; May it please kc. [subpoena against John Willis]. The defendant is required to answer all the above interrogatories. Precedents. 235 II. Supplemental Bill against New Parties wlio ought to have been made Defendants to the Original Bill. — Vide Chap. II. In Chancery. To the Right Honorable, &c. Humbly complaining sheweth unto your Lordship II. Supple- your orator Ferdinand Hartwell of &c. that on &:c. v. your orator exhibited his original bill of complaint in Original bill this Honorable Court, which was afterwards amended o°fVmo?tgagT by an order of this Court, and which bill so amended was against Timothy Naylor as defendant thereto; thereby stating an Indenture dated the 1st day of February 1809, and made between your orator of the one part, and the said Timothy Naylor of the other part, whereby, in consideration of the sum of £7000 to your orator lent and advanced by the said Timothy Naylor, your orator demised certain freehold hereditaments in the county of Salop therein described unto the said Timothy Naylor, his executors, adminis- trators, and assigns, for a term of five liundred years, at a peppercorn rent, subject nevertheless to redemp- tion on payment by your orator, his heirs, executors, administrators, or assigns, unto the said Timothy Naylor, his executors, administrators, or assigns, of the sum of £7000, with interest for the same after the rate of five per cent, per annum, on the 1st day of August 1809 ; And further stating that the said sum of £7000 was not paid on the day so appointed for that purpose as aforesaid, and that subsequently the said Timothy Naylor entered into the receipt of the rents and profits of the said hereditaments, and had thereby long since paid himself the whole of the said mortgage debt and interest ; And praying that an ac- count might be taken, under the direction of this 236 Precedents. II. Supple- Honorable Court, of the rents and profits of the said mental Bill. ^ hereditaments received by the said Timothy Naylor since he so entered into the receipt thereof as afore- said, or by any person or persons by his order or for his use ; and also an account of the interest which ac- crued from time to time on the said sum of £7000, or on so much thereof as from time to time remained due ; and that, after deducting from time to time such interest from the rents and profits so received as afore- said, the residue of such rents and profits might be considered as having been received from time to time in or towards discharge of the said principal sum of £7000 ; and that it might be ascertained whether the same had been wholly satisfied, or whether anything, and what, remained due in respect thereof; and that the said Timothy Naylor might be decreed to assign or surrender the hereditaments so demised to him as aforesaid, unto your orator, or as he should direct, and to deliver to him all deeds, papers, and writings, in his custody or power, relating thereto, upon your orator paying to the said Timothy Naylor what, if any- thing, should be found to be still due on account of the said mortgage, which your orator thereby under- took to do ; and in case, on taking the said account, it should be found that the said Timothy Naylor had been overpaid, then that the said Timothy Naylor might be decreed to pay to your orator the surplus received by him beyond his said mortgage debt and the interest thereof; and that your orator might have such further or other relief in the premises as the circumstances of his case might require, and to your Lordship should seem meet. Appearance And your orator further sheweth unto your Lord- and answer ^j^jp^ t]jat the said Timothy Naylor, being duly served with process, appeared to your orator's said bill, and put in his answer thereto, which being replied to, wit- Precedents. 237 nesses were examined, and i)ublIcation passed, but II- Supple- , , • 1 1 -ii mental Bill. the cause has not yet been lieard ; as by tlie said bill v , / and proceedings, now remaining as of record in this Honorable Court, on reference thereto will more fully ap])ear. And your orator further sheweth, by way of sup- Supplemental plement, that your orator has lately discovered, as the ^ ^'" ^ •' 11 Discovery of fact is, that by an Indenture bearing date the 29th an assignment day of April 1812, and made between the said Timothy ^^ ^''^ mort- •' J ' _ •' gage debt by Naylor of the first part, Cecilia Bering, Spinster, the mortgagee, since deceased, of the second part, and Henry Hnrrill "^o"*^ ^^^' and William Sketchley, two of the defendants herein- after named, and Charles Hurrill Dering, since de- ceased, of the third part (being the settlement made in consideration of a marriage then intended, and afterwards solemnized, between the said Timothy Nay- lor and Cecilia Dering) the said Timothy Naylor assigned the said principal sum of £7000, and the in- terest to accrue due thereon, unto the said Henry Hurrill, William Sketchley, and Charles Hurrill Dering, their executors, administrators, and assigns, absolutely; and he also assigned the said heredita- ments so demised to him by the said Indenture of the 1st day of February 1809, as aforesaid, unto the said Henry Hurrill, William Sketchley, and Charles Hur- I'ill Dering, their executors, administrators, and as- signs, for all the then residue of the said term of five hundred years therein, subject nevertheless to such equity of redemption as the same were then subject to under the said last mentioned Indenture. And it was thereby declared that the said Henry Hurrill, William Sketchley, and Charles Hurrill Dering, their exe- cutors, administrators, and assigns, should stand pos- sessed of the said principal sum of £7000, and the interest to accrue thereon, and the securities for the 238 Precedents. II. Supple- mental Bill. Issue of the marriage. The trustees and issue are necessary par- ties. same, in trust for the said Timothy Naylor, his exe- cutors, administrators, and assigns, until the said then intended marriage should be solemnized ; and from and after the solemnization thereof, upon the trusts thereinafter declared, and in part hereinafter stated, that is to say; — upon trust to pay the interest of the said sum of £7000 to the said Timothy Naylor during his life ; and after his death, upon trust to pay such interest to the said Cecilia Dering during her life ; and after the decease of the survivor of them the said Timothy Naylor and Cecilia Dering, upon trust to pay and divide the said principal sum of .£7000 to, and equally among, all the children of the said then in- tended marriage, who being sons should attain the age of twenty-one years, or being daughters should attain that age or be married, or their respective exe- cutors, administrators, or assigns ; as by such Inden- ture of settlement, on reference thereto, will more fully appear. And your orator further sheweth, by way of supple- ment, that there were issue of the said marriage two children only, that is to say, Charles Naylor and Cecilia Naylor, two of the defendants hereinafter named, both of whom have attained the age of twenty- one years ; and that the said Cecilia Dering departed this life on the 15th day of June 1816, and that the said Charles Hurrill Dering departed this life on the 20th day of December 1829. And your orator charges that the said Henry Hurrill, William Sketchley, Charles Naylor, and Cecilia Naylor, are, by the means aforesaid, interested in the said sum of £7000, and the securities for the same, and are necessary parties to this suit, and that your orator is entitled to have the same relief from his said original bill, as if they had been made parties thereto. Precedents. 239 To the end therefore that the said defendants may, ii, Suppie- if they can, shew why your orator should not have the , "^^"<^^^ ^^^^- , relief hereby, and by his said original bill (a) prayed, Cails for and may upon their several and respective corporal answer to oaths, according to the best and utmost of their several and I'espective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several interrogatories in your orator's said original bill numbered and set forth, and also to such of the several interrogatories hereinafter num- bered and set forth, as by the note hereunder written they are respectively required to answer ; that is to say ;— 1. Whether &c. And that your orator may have the same relief from Prayer. his said original bill, as if the said defendants had been made parties thereto ; and that the said defendants may concur in the assignment or surrender thereby prayed ; and that your orator may have such further or other relief in the premises as the nature of his case may require, and to your Lordship shall seem meet ; May it please &:c. [subpoena for appearance and answer to both bills against Henry Hurrill, William Sketchley, Charles Naylor, and Cecilia Naylor]. The defendants are required to answer the inter- rogatories in the original bill numbered respec- tively &c. and all the above interrogatories. ya) These words should be in- calls for an answer to the original serted when the supplemental bill bill. 240 Precedents. III. Supplemental Bill against the Representative of a Defendant to the Original Bill, who had died before Appearance ; and against whose Repre- sentative thei^efore the Suit could not he revived. —Vide Chap. II. In Chancery. To the Right Honorable kc. III. Supple- Humbly complaining- sliewetli unto your Lordship ^menta i . ^ ^^^^^^ orator John Francis Perry of &c. that on or about the 18th clay of June 1841, your orator exhibited Original bill jjjg original bill of complaint in this Honorable Court, torsfor an^^" which was afterwards amended by an order of this account. Court, and which bill so amended was against Antliony Beaumont, and against Charles Tyler when he should come within the jurisdiction of this Court ; thereby s^a^iw^ the will of Charles Sheppard, whereby he be- queathed unto the said Anthony Beaumont, whom he appointed executor, all his stocks and funds upon trust to pay the interest thereof to Rose Perry, so long as she remained unmarried ; and, after her death or mar- riage, to transfer the same to the said Charles Tyler; but, in case she should die without having been mar- ried, that the said Anthony Beaumont should transfer the same to such person or persons as she should ap- point ; and, in default of appointment, to iier next of kin; and he gave the residue of his property to his executor upon the same trusts: And further stating the death of the said testator, and the probate of his will by the said Anthony Beaumont, and the death of the said Rose Perry without ever having been married, and without having made any appointment of the pro- perty so bequeathed as aforesaid, and that slie left Precedents. 241 your orator her only brother and sole next of kin ; III. Suppie- and iirmjing that it might be declared by this Court ^"e"td BiU. ^ that your orator, as sole next of kin of the said Rose Perry, was absolutely entitled to the residuary per- sonal estate of the said Charles Sheppard deceased ; and that an account might be taken under the direc- tion of this Court of the personal estate of the said Charles Sheppard, and the application thereof, and of his debts and funeral and testamentary expenses ; and that the clear residue thereof might be ascertained ; and that the said defendant Anthony Beaumont might be decreed to pay, transfer, or assign to your orator, as well sucli clear residue, a? also the interest or divi- dends which had accrued thereon since the death of the said Rose Perry ; and that for the purposes afore- said all necessary inquiries might be made, and ac- counts taken ; and that your orator might have such further or other relief in the premises as the circum- stances of the case might require, and to your Lordship might seem meet. And your orator further sheweth that the said Appearance, Anthony Beaumont, being duly served with process, fhedefeTdanL appeared to your orator's said bill, and put in his answer thereto, which answer was replied to. And your orator further slieweth that the said Decree, cause came on to be heard before His Lordship the Master of the Rolls, on the 31st day of May 1842, when His Lordship was pleased to order and decree that it should be referred to the Master of this Court in rotation to inquire and state to the Court, whether the defendant Charles Tyler was out of the Jurisdic- tion of this Court at the time when the bill in tliis cause was filed ; and if so, whether he had ever since continued, and whether he was then, out of such Jurisdiction ; and it was ordered that the said Master R 242 Precedents. III. Supple, should also inquire and state, whether the said Rose mental Bill. ^ Perry was living or dead; and, if dead, when she died ; and who was or were her personal representa- tive or representatives ; and who was or were her next of kin living at the time of her death ; and whether her next of kin was or were respectively living or dead ; and who was or were then the per- sonal representative or representatives respectively of such next of kin (if any) as might be dead; and if the said Master should find that all proper parties were before the Court as parties to that suit, then it was ordered that he should proceed to inquire and state whether the said Rose Perry ever and when intermarried with any person and whom ; and in case he should find that she did not intermarry with any person, then it was ordered that he should inquire and state whether she ever and when made any and what appointment of the stocks and funds specifically bequeathed by the said will of the said testator, and of the residuary personal estate of the said testator, or of either and which of them, or of any and what part thereof respectively; and for the better disco- very of the matters aforesaid the parties were to pro- duce before the said Master, upon oath, all books, papers, and writings in their custody or power rela- ting thereto, and were to be examined upon interro- gatories as the said Master should direct ; and the said Master was to be at liberty to state any special circumstances as he should think fit; and His Lord- ship reserved the consideration of all further direc- tions, and of the costs of that suit, until after the said Master should have made his report ; and any of the parties were to be at liberty to apply to this Court as occasion should require. Further pro- And your orator further sheweth that divers pro- ceedings. Precedents. 243 ceedings have been had before the Master to whom ill. Suppie- the said cause was so referred as aforesaid, but he has >, ! ' '^ yet made no report thereon ; as by such bill and pro- ceedings, now remaining as of record in this Honor- able Court, when produced will more fully appear. And your orator further sheweth by way of sujyple- Supplemental ment, that your orator has lately discovered, as the „ j^ '^j. ^^^ fact is, that the said Charles Tyler departed this life defendant with- in the Kingdom of France, on the 2nd day of July ^^*e!^^'^'" 1841, without ever having been served with process to your orator's said bill, or having appeared thereto. And your orator further sheweth by way of supple- Administra- tion tai to liim. me7it, that the said Charles Tyler died intestate ; and ^^°" ^''^^'^ °^* that on the 1st day of June 1842 letters of administra- tion of the estate and effects of the said Charles Tyler were granted by the Prerogative Court of Canterbury to Thomas Henry Webster the defendant hereto ; as by such letters of administration when produced will more fully appear. And your orator charges that by the means afore- said the said Thomas Henry Webster has become, and now is, the legal personal representative of the said Charles Tyler, and is entitled to all such interest, if any, as the said Charles Tyler had under the said will of the said Charles Sheppard. And your orator charges that your orator ought to Claims benefit have the same relief against the said Thomas Henry "ee^^^s"^ ^™" Webster, as the personal representative of the said Charles Tyler, and the same benefit of the said suit and all the proceedings therein, as he might have had against the said Charles Tyler, if he had appeared to your orator's said bill, and were now living. To the end, therefore, that the said Thomas Henry Calls for an- Webster may, if he can, shew why your orator should ^lug"^*"^"* not have the relief hereby, and by his said original r2 244 Precedents. III. Supple- bill (a), prayed ; and that he may upon his corporal oath, mental BiU. V- i , ^ . \ o ^ - ^ i i ^ according to the best and utmost oi his knowledge, remembrance, information, and belief, full, true, di- rect, and perfect answer make to such of the several interrogatories in the said original bill numbered and set forth, as by the note thereunder written the said Charles Tyler was required to answer, and also to such of the several interrogatories hereinafter num- bered and set forth, as by the note hereunder written this defendant is required to answer ; that is to say, — I. Whether, &c. Prayer. And that it may be declared by this Honorable Court that your orator is entitled to have the same relief against the said defendant, as such personal re- presentative of the said Charles Tyler, and the same benefit of the said original suit, and of all the pro- ceedings therein, as he might have had against the said Charles Tyler, if he had appeared to your orator's said bill, and were now living ; and that it may be decreed accordingly ; and that your orator may have such further or other relief in the premises as the cir- cumstances of his case may require, and to your Lord- ship may seem meet ; May it please &:c. [subpoena for appearance and answer to both bills, against Thomas Henry Webster.] The defendant is required to answer all the above interrogatories. Note. — It may be thought that conformably with the doctrines laid down in the second chapter of this work, Beaumont ought to have been made a defendant to this supplemental bill, as he is interested in the question who is the legatee under his testator's will. But it will be observed that tliat doctrine applies only (a) These words should be in- calls for an answer to the original serted when the supplemental bill bill. Precedents. 245 to a bill filed against a defendant whose intei-est was m. Suppie- never represented in the original bill. Hei-e, thouo-h ^ menta l Bill. Webster was j)ersonally a new defendant, he repre- sented the interest before represented by Tyler; and Beaumont had already had an opportunity, in his answer to the original bill, of making any statement relative to that interest which he miirht have thou^'-ht proper. In fact, this bill corresponds in character with a bill of revivor, to which Beaumont would as- suredly not have been a party. IV. Petition for Leave to File a Supplemental Bill in the Nature of a Bill of Review. — Vide Chap. III. In ClIANXERY. Between Richard Malins, Complainant, and Thomas Bencher, Defendant. To the Right Honorable the Master of the Rolls. The humble petition of the above named defendant, iv. Petition Thomas Bencher, for Leave to File a Supple- She weth, mental Bill in That on or about &c. the above-named complainant a Biu of Richard Malins being seised in fee, or otherwise well ^^^'^^^- entitled, of or to a certain dwelling-house, land, and Agreement by other hereditaments situate in the parish of G. in the Petitioner to , rixr-i 1 1. .. purchase an county ot Wilts, by a memorandum in writing bearing estate. date the 24th day of March 1840, and made between the said Richard Malins of the one part and your petitioner of the other part, and signed by the said Richard Malins and your petitioner, contracted to sell to your 246 Precedents. IV. Petition for Leave to' File a Supple- mental Bill in the Nature of a Bill of Review. Title disap- proved of. Bill for specific performance. Appearance and answer of petitioner. petitioner, and your petitioner by the same memo- randum contracted to purchase, the said dwelling- house, land, and other hereditaments, for the sum of £1200, the purchase to be completed on the 24th day of June then next ensuing, on a good title being shewn. That the said Richard Malins delivered to your petitioner an abstract of his title to the said heredi- taments, which was submitted to the perusal of Counsel by your petitioner, and was disapproved of by the said Counsel, and that your petitioner accordingly refused to complete the said purchase. That on or about &c. the said Richard Malins ex- hibited his original bill of complaint in this Honorable Court, against your petitioner as defendant thereto, thereby stating to the effect hereinbefore stated, and jDraying that the said agreement contained in the said memorandum of the 24tli day of March 1840 might be specifically performed, by and under the direction and decree of this Honorable Court, and that your petitioner might be decreed to pay to the said Richard Malins the said sum of £1200, wdth interest from the said 24th day of June 1840, the said Richard Malins being willing and thereby offering to execute to your petitioner a proper conveyance of the said hereditaments ; and that the said Richard Malins might have such further or other relief in the premises as the nature of his case might require, and to your Lordship should seem meet. That your petitioner, being duly served with pro- cess, appeared and put in his answer to the said original bill, and thereby denied that the said Richard Malins had shewn, or was able to shew, a good title to the said premises, and submitted that your petitioner was not bound to perform the said contract. Precedents. 247 That such answer was replied to, and witnesses ex- iv. Petition arained on both sides, and publication passed. ^j^ a^Suppk- That the said cause being at issue came on to be mental Bill in heard before your Lordship on &c. when your Lord- ^ Bill of ship was pleased to order and decree that it should be Re^ie'^- referred to the Master of this Court in rotation, to in- Replication, quire and state to the Court, whether the said Richard &c. Decree. Malins could make a good title to the premises com- prised in the said agreement of the 24th day of March 1840, and if so, when such good title was first shewn ; and for the better discovery of the matters aforesaid, the parties were to produce before the said Master, upon oath, all deeds, papers, and writings in their custody or power relating thereto, and were to be ex- amined upon interrogatories as the said Master should direct ; and your Lordship reserved the consideration of further directions, and of the costs of the suit, until after the said Master should have made his report; and all parties were to be at liberty to apply to the Court as they sliould be advised. That in pursuance of the said decree, the Master to Master's whom the said cause was referred made his report '"^P"'"*- therein bearing date &c. which was afterwards duly confirmed by an Order of this Court ; and he thereby found that the said Richard Malins could make a good title to the said premises, and that such good title was first shewn on the 12th day of April 1840. That the said cause came on to be heard for further Decree on fur- directions and costs, before your Lordship on &c. when ther directions. your Lordship was pleased to declare that the agree- ment contained in the said memorandum of the 24tli day of March 1840 ought to be specifically performed and carried into execution. And it was ordered that it should be referred to the said Master to compute interest at the rate of four per cent, per annum on the 248 Precedents. IV, Petition said sum of £1200 from the said 24th day of June File^a^s^uVple- ^^■^^' ^"^ ^^ ^^^ ^"*^^^ interest to the said principal mental Bill in sum. And it was referred to the said Master to tax aBiii^of^^ the said Richard Malins his costs of the said suit, Review. and to certify the amount thereof. And it was ordered that your petitioner should pay to the said Richard Malins the amount of principal and interest to be so certified as aforesaid, and also the costs to be so taxed as aforesaid, upon the said Richard Malins executing and delivering to your petitioner, at the expense of your petitioner, a proper conveyance of the premises comprised in the said agreement, such conveyance to be settled by the said Master, if the parties should differ about the same. And all parties were to be at liberty to apply to the Court as they should be ad- vised. Proceedings in That in pursuance of such last mentioned order Master's Office gome proceedino-s have been had in the said Master's still pending. n^ , •, .^^ i- ^ ^ Office, and the same are still pendmg and have not yet been finally concluded. Foundation of That the said Richard Malins claimed to be seised the plaintifF's ^^^ ^^ entitled to, the said premises as heir at law of his late uncle John Henry Malins deceased, and in no other capacity, and he deduced his title before the said Master accordingly, and satisfied the said Master that he was such heir at law ; and your petitioner was not then able, from any knowledge or information then in his power, to controvert such claim. Discovery of a That your petitioner hath since the making of the flaw in the g^j^j decree on further directions, discovered, as the facts are, that on or about &c. the said John Henry Malins intermarried with Mary Ann Temple, spinster, and that there was issue of such marriage three sons and one daughter, namely, John Temple Malins, Henry Malins, George Malins, and Mary Malins, all Precedents. 249 of whom are now alive and residing in the United IV. Petition States of America ; and that the said John Temple ^^^ ^^'g^*^|^°g_ Malins is the rightful heir at law of the said John mental Bill in Henry Malins ; and that the said Richard Malins was ^ Bill of not nor is such heir at law. Review. t ^ J That the said report of the said Master, and the r^-^^ decree on decree on further directions so founded thereon as further direc- /. • 1 .1 1 J.1 i. tions was erro- aioresaid, are consequently erroneous, and tliat your neoug_ petitioner is aggrieved by the said decree on further directions. That the said decree has not been signed and en- Decree not rolled, and your petitioner intends to present a petition enroUed" to your Lordship for the purpose of having the said cause reheard for further directions and costs. Your petitioner, therefore, most humbly prays your Lordship that he may be at liberty to ex- hibit a supplemental bill in the nature of a bill of review in the said cause, to the intent that your petitioner may have in the said cause the same benefit of the circumstances so lately dis- covered by him as aforesaid as he would have had in case the same had been set forth by way of defence in his said answer to the said com- plainant's bill in the said cause. And your petitioner &c. 260 Precedents. V. Affidavit in Support of a Petition for Leave to File a Supplemental Bill in the Nature of a Bill of Review. — Vide Chap. III. In Chancery. Between Richard Malins, Complainant. and Thomas Bencher, Defendant. V. Affidavit. Thomas Bencher, the defendant, maketh oath, and saith, that since the time of pronouncing the decree in this cause, he, this deponent, hath discovered iiew matter of consequence in the said cause ; particularly that John Henry Malins deceased, the uncle of the said complainant, of whom the complainant claims to be heir at law, left three sons and one daughter him surviving, named respectively John Temple Malins, Henry Malins, George Malins, and Mary Malins ; and that such sons and daughter are still alive and residing in the United States of America; and that the said John Temple Malins is the rightful heir at law of the said John Henry Malins ; which new matter this de- ponent did not know, and could not by reasonable diligence have known, so as to make use thereof in his defence, at the time of pronouncing the said decree. Sworn, (Sec. Thomas Bencher. Precedents. 251 VI. Order for Leave to File a Supplemental Bill in the Nature of a Bill of Review. — Vide Chap. III. In Chancery. Between Richard Malins, Complainant. and Thomas Bencher, Defendant. Whereas the above named defendant Thomas Bencher vi. Order for did on &c. prefer liis petition unto the Right Honorable \f^^^ *° ^^^ the Master of the Rolls, setting forth That &:c. [set v ^ / forth the petition fully ;] whereupon all parties con- cerned were ordered to attend His Lordship on the matter of the said petition ; and Counsel for the peti- tioner and for the plaintiff this day attending accord- ingly ; upon hearing of the said petition, the decree dated &c. [the proceedings in the cause,] the affidavit of &c. read ; and what was alleged by the Counsel for the said petitioner and for the plaintiff; His Lordship doth order that on the petitioner Thomas Bencher depositing the sum of £50 with the registrar, he be at liberty to file a supplemental bill in the nature of a bill of review touching the several matters in the said petition mentioned, and for relief in the premises as he may be advised. 252 Precedents. VII. Petition for Rehearing a Cause on Supple- mental Matter. — Vide Chap. III. In Chancery. Bet\yeen Richard Malins, Complainant. and Thomas Bencher, Defendant. To the Right Honorable the Master of the Rolls. The humble petition of the above named defendant Thomas Bencher, Sheweth, VII. Petition That by the decree on furtlier directions made in this for Rehearing^ , cause OH &c. your Lordship was pleased to declare that The decree on the agreement contained in the memorandum of the Ss^' '^'''''" 24th day of March 1840, in the pleadings in this cause mentioned, ought to be specifically performed &c. [as in the former petition.] Proceedings in That in ]:)ursuance of the said last mentioned order ^l'^^'*!*f/® some proceedings have been had in the said Master's Office still ^ ^ ° pending. Office, and the same are still pending, and have not yet been finally concluded. Decree was That the said decree on farther directions was erroneous. erroneous, and your petitioner is aggrieved thereby, and is entitled to have the same i-eviewed and re- versed. Decree is not That the said decree has never been signed and en- signed and rolled enrolled. roiieu. Petition to file That on (fcc. your petitioner presented his petition supplemental jj^ ^jjjg cause to vour Lordship, statin"- as therein is bill in the pi m nature of a bill stated, and praymg for leave to file a supplemental of review. ^^j^ j^^ ^j^^ nature of a bill of review respecting the matters in this cause. Precedents. 253 That by an order of this Court bearing date &c, vii. Petition your Lordship was pleased to order that on your peti- f"*" R^heanng^. tioner depositing the sum of £50 with the Registrar, Order for leave. your petitioner should be at liberty to file a supple- mental bill in the nature of a bill of review touching the several matters in the said petition mentioned, and for relief in the premises as your petitioner might be advised. That if your Lordship should think fit to accede to Intention to the prayer of this petition, your petitioner intends to ^^ ^ file a upplemental bill in the nature of a bill of re- view touching the matters in this cause. Your petitioner, therefore, most humbly prays that your Lordship will be pleased to order that this cause may be reheard ; and that the said decree of &:c. may be reviewed and reversed ; and that your Lordship will be pleased to order that the said cause may come on at the same time as the supplemental cause so intended to be instituted by your petitioner as aforesaid. And your petitioner, &c. We humbly conceive that this cause is proper to be reheard touching the matter in the petition mentioned, if your Lordship shall think fit. A. B.>^ 1' • . ^ TN ? Counsel s signatures. C. D. S 254 Precedents. VIII. Supple- mental Bill in the Nature of a Bill of Re- Originall bill by vendor for specific per- formance. V^III. Supplemental Bill in the Nature of a Bill of Review. — Vide Chap. III. In Chancery. To the Right Honorable &c. Humbly complaining- sheweth unto your Lordship your orator Thomas Bencher of &c. that on or about &c. Richard Malins, the defendant hereinafter named, exhibited his original bill of complaint in this Honor- able Court, against your orator as defendant thereto, thereby stating., among other things, a memorandum in writing bearing date the 24th day of March 1840, and made between the said Richard Malins of the one part and your orator of the other part, and signed by the said Richard Malins and your orator, whereby the said Richard Malins contracted to sell to your orator, and your orator contracted to purchase, a certain dwell- ing-house, with land and other hereditaments, situate in the parish of G. in the county of Wilts, and therein particularly described, for the sum of £1200, the pur- chase to be completed on the 24th day of June then next ensuing, on a good title being shewn ; And further stating the delivery by the said Richard Malins to your orator of an abstract of his title to the said hereditaments, and that he had thereby shewn a good title thereto, and had frequently applied to your orator, and requested him to complete the said con- tract, and to pay the said sum of £1200, but that your orator had refused to comply with such applications and requests ; And praying that the said agreement contained in the said memorandum of the 24th day of March 1840 might be specifically performed by and under the direction and decree of this Honorable Precedents. 2d5 Court, and that your orator might be decreed to pay to viii. Supple- the said Richard Malins the said sum of X^ 200 with :?^"'f^^^^? the Nature of interest from the said 24th day of June 1840, the said a Bill of Re- Richard Malins being willing, and thereby offering, to r^^' execute to your orator a proper conveyance of the said hereditaments ; And that the said Richard Malins might have such further or other relief in the pre- mises as the nature of liis case might require, and to your Lordship should seem meet. And your orator further sheweth, that your orator, Appearance being duly served with process, appeared and put in his answer to the said original bill, and thereby denied that the said Richard Malins had shewn, or was able to shew, a good title to the said premises, and sub- mitted that your orator was not bound to perform the said contract. And your orator further sheweth that such answer Replication, was replied to, and that witnesses were examined on both sides, and publication passed. And your orator further sheweth that the said cause Decree. being at issue came on to be heard before the Right Honorable the Master of the Rolls on &c. when his Lordship was pleased to order and decree &c. [as in the petition.] And your orator further sheweth that, in pursuance Master's of the said decree, the Master to whom &c. [as in the "^^^""^ ' petition.] And your orator further sheweth that the said cause Decree on fur- came on to be heard for further directions and costs tiier directions. &c. [as in the petition.] And your orator further sheweth that in pursuance Proceedings of such last mentioned Order some proceedings have i°^iaster s been had in the said Master's Office, and the same are still pending, and have not yet been finally concluded ; 256 Precedents. VIII. Supple- mental Bill in the Nature of a Bill of Re- Supplemental matter. Error in the decree. Petition of rehearing. as by such bill and other proceedings in the said cause, now remaining as of record in this Honorable Court, reference being had thereto, will more fully appear. And your orator, by leave of this Honorable Court first had and obtained for that purpose, further sheweth by way of supplement, that the said Richard Malins claimed to be seised of or entitled to the said premises, as heir at law of his late uncle John Henry Malins deceased, and in no other capacity ; and he deduced his title before the said Master accordingly, and satisfied the said Master that he was such heir at law. And your orator was not then able, from any knowledge or information then in his power, to con- trovert such claim. But your orator has since the makino: of the said decree on further directions dis- covered, as tlie facts are, that on or about &c. the said John Henry Malins intermarried with Mary Ann Temple, spinster ; and that there was issue of such marriage three sons and one daughter, namely, John Temple Malins, Henry Malins, George Malins, and Mary Malins, all of whom are now alive and residing in the United States of America ; and that the said John Temple Malins is the rightful heir at law of the said John Henry Malins, and that the said Richard Malins was not nor is such heir at law. And your orator, by such leave as aforesaid, further sheweth, by way of supplement, that the said report of the said Master, and the decree on further direc- tions so founded thereon as aforesaid, are conse- quently erroneous ; and your petitioner is aggrieved thereby ; and that the said decree has never been signed and enrolled ; and that your orator has accord- ingly presented a petition to your Lordship praying Precedents. 257 to have the said cause reheard before your Lordship vill. Supple- for furtlier directions and costs, which ])etition has "»entai Bill in the Nature of been acceded to by your Lordship. a Bill of And your orator, by such leave as aforesaid, furtlier ^^^^^^ - sheweth, by way of supplement, tliat your orator is claims a hear- entitled, as he is advised, to have the said cause, when '"g on the new so reheard as aforesaid, heard also on the new matter so discovered by your orator as aforesaid, in the same manner as if such new matter had been put in issue in the said original suit. To the end therefore that the said defendant may, Calls for an- if he can, shew why your orator should not have the s^^*"- relief hereby prayed ; and may upon his corporal oath, according to the best and utmost of his know- ledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of tlie several interrogatories hereinafter numbered and set forth, as by the note hereunder written he is required to answer ; that is to say ; — 1. Whether &c. And that the said cause may be heard on such new Prayer. and supplemental matter as aforesaid, at the same time as it is reheard on the said original bill ; and that your orator may have such further or other relief as, under the circumstances hereinbefore particularly stated, to your Lordship shall seem meet, and the nature of this case, as it hereby appears, may require ; May it please ifcc. [subpoena against Richard Malins.] The defendant is required to answer all the inter- rogatories. 258 Precedents. IX. Bill of Revivor. ^ . ' Original bill for account. IX. Bill of Revivor against the Representatives of a Defendant to the Original Bill, who had died after Appearance hut before Answer. It calls for an Answer to the Original Bill, as well as for an Answer to itself respecting Assets. — Vide Chap. VII. In Chancery. To the Right Honorable &c. Humbly complaining sheweth unto your Lordship your oratrix Mary Waller of &c. that on or about &c. your oratrix exhibited her original bill of complaint in this Honorable Court against David Barnes the younger and John Barnes Waller, thereby stating divers matters whereby it appeared that your oratrix and the said John Barnes Waller were, under and by virtue of a certain Indenture executed by David Barnes the elder deceased, and dated &:c. and under and by virtue of his last will and testament dated &:c. which was proved by the said David Barnes the younger in the Prerogative Court of Canterbury, en- titled to the relief prayed by the said bill ; and praying that your oratrix might be declared to be entitled to have the covenant contained in the said Indenture specifically performed ; and that an ac- count might be taken by and under the direction of this Honorable Court of the personal estate which the said testator was possessed of, interested in, or en- titled to at the time of his death, and over which he had a disposing power ; and particularly that the amount of the largest legacy given by his said will, whether pecuniary, specific, or residuary, might be ascertained ; and that the personal estate of the said Precedents. 259 testator mig-lit be disposed of in a due course of ad- ix. Bill of ministration ; and in case it sliould appear that it was ^ Re^•ivor. ^ most beneficial for your oratrix to receive her share of the legacy of £4000 bequeathed by the said will of the said testator, then that the same might be paid to her ; and in case it should appear to be most beneficial for her to take the benefits secured to her by the said Indenture, then that the same might be made good to her out of the personal estate of the said testator ; and that all necessary directions might be given for en- abling your oratrix to make her election between the legacy given by the said will and the benefits provided for her by the said Indenture, and that whatever she should be ultimately entitled to, might be paid to her; and that your oratrix might liave such further relief in the premises as the circumstances of her case might require, and to your Lordship should seem meet ; as in and by such original bill, now remaining as of re- cord in this Honorable Court, reference being had thereto, will more fully appear. And your oratrix further sheweth that the said Appearance of David Barnes the younger appeared to the said bill ; defendaS!^*^ but before he had answered, and before any further proceedings were had in the said cause, and on or about the 25th day of April now last past, the said David Barnes the younger died ; and that he made His death. his will bearing date &:c. and that he thereby ap- pointed his wife Sarah Barnes and James Peters, the defendants hereinafter named, executrix and executor of his said will. And your oratrix further sheweth that the said de- His executors, fendants Sarali Barnes and James Peters have both proved the said will of the said David Barnes the younger in the Prerogative Court of Canterbury, and have thereby become, and now are, the legal personal s 2 260 Precedents. IX. Bill of representatives of the said David Barnes the younger, ^''l^^'"' . and also of the said David Barnes the elder ; and they Calls for an- swer to both bills. have possessed themselves of personal estate of the said David Barnes the elder, and David Barnes the younger, sufficient to answer your oratrix's demands in this suit. The abatement. And your orati'lx further sheweth that by the death of the said David Barnes the younger the said suit became abated as to him, but your oratrix is advised < that the same ought to be revived. To the end therefore that the said defendants may, if •they can, shew why your oratrix should not have the relief hereby, and by her said original bill (a), prayed, and may upon their several and respective corporal oaths, according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several interrogatories in your oratrix's said original bill numbered and set forth, as by the note thereunder written the said David Barnes the younger was required to answer, and also to such of the several interrogatories hereinafter num- bered and set forth, as by the note hereunder written they are respectively required to answer ; that is to say;— 1. Whether, &c. And that the said defendants may, if they can, shew why the said suit and proceedings should not be re- vived against them, and, in default thereof, that they may be revived accordingly, and stand and be in the same plight and condition as they were in at the time Prayer for re- vivor. (a) In general a bill of revivor does not call for any answer. In this particular case it is necessary to call for an answer both to the original bill, on account of the death of the former defendant before an- swer, and also to the bill of revivor, on account of the question as to the admission of assets. Precedents. 261 of tlie said abatement ; and that the said defendants IX. Bill of may either admit assets of the said David Barnes the ^ evivor. ^ elder and David Barnes the younger, possessed by And for admis- ,, m-ii i'»j !• sion of assets, them, snthcient to answer your oratrix s demands m ^^ f^^ ^^ this suit, or otherwise that an account may be taken account. thereof in tlie usual manner ; and that your oratrix may have the same relief against them as she might have had against the said David Barnes the younger, in case he had lived (h) ; May it please your Lordship Prayer for to grant unto your oratrix Her Majesty's most gracious ^^ ^°^°^' writ of subpoena to revive and answer, issuing out of and under the seal of this Honorable Court, to be directed to the said Sarah Barnes and James Peters, thereby commanding them, on a certain day and under a certain pain therein to be limited, personally to be and appear before your Lordship in this Honorable Court, and then and there to answer your oratrix's said original bill, and also the premises, and to shew cause, if tliey can, why the said suit and proceedings therein had, should not stand and be revived against them, and be in the same plight &c. [as above] and further to stand to, and abide, such order and decree as to your Lordship shall seem meet. And your oratrix shall ever pray &c. The defendants are required to answer all the above interrogatories. {I) The bill of revivor does not ask for further relief. 262 Precedents. X. Order for Revivor. — Vide Chap. VII. In Chancery. JA.MES LuPTON, &c., Plaintiffs. Elizabeth Burrill, &c., Defendants. X. Order Upon motion this clay made unto this Court by Mr. ^ for Revivor.^ ^ ^f Counsel for the plaintifFs, it was alleged &c. [the original bill, proceedings, deaths of defendants, and probates of their wills by the above-named de- fendants.] That the said suit and proceedings having become abated by the deaths of the said defendants as aforesaid, the plaintifFs thereupon exhibited their bill of revivor in this Court against the said defendants, to which they have appeared ; but their time for answer- ing being expired (a), it was therefore prayed that the said suit and proceedings might stand revived, and be in the same plight and condition as the same were in at the time of the said abatement, which is ordered accordingly (b). (a) It is submitted that this ex- more correct expression, under the pression, although in constant use, Tenth Order of 1833, would he, is erroneous; for a plaintiff may " their time for shaving cause being obtain the order for revivor before expired." But even this would not the time for pleading or demurring be strictly true. Vide page 119. is out, and, much more, before the (i) Lupton v. Burrill, Reg. Lib. time for answering is out. The 1832, B. fol. 1307. Precedents. 263 XI. Original Bill in the Nature of a Bill of Re- vivor. — Vide Chap. VIII. In Chancery. To the Right Honorable &:c. Humbly complaining sheweth unto your Lordship XI. Original your orator Francis Tyler of &c. that in or about the ^Iture oTa month of March 1834, Edward Graves, one of the de- Bill of Revivor. fendants hereinafter named, being seised or entitled in ^^^gement for fee simple of or to the freehold messuage and heredi- sale of an es- taments hereinafter described, entered into an agree- ment with George Hargrave, late of &c., Esq. de- ceased, for the sale thereof to him ; and that such agreement was reduced into writing by certain Articles of Agreement, bearing date the 10th day of March 1834, and made between the said Edward Graves of the one part, and the said George Hargrave of the other part, and signed by the said Edward Graves and George Hargrave, whereby the said Edward Graves, in con- sideration of the sum of £1000, to be paid as therein and hereinafter mentioned, agreed that he or his heirs would on or before the 1st day of May then next, to the satisfaction of the said George Hargrave or his heirs, and of his or their Counsel, make out a good title to the said messuage and hereditaments hereinafter described, and by good and sufficient con- veyances in the law convey and assure unto the said George Hargrave and his heirs, or as he or they should appoint, free from all incumbrances, a good and suf- ficient estate of inheritance of and in all that messuao-e &c. In consideration whereof the said George Har- grave did thereby covenant and agree with the said Edward Graves, that he the said George Hargrave 264 Precedents. XI. Original Bill in the Nature of a Bill of Revivor. ^ . ' Abstract de- livered and title approved of. Vendor re- fuses to com- plete the agree- ment. Bill by the purchaser for specific per- formance. would pay or cause to be paid to the said Edward Graves the sum of £1000 &c. as in and by one part of the said agreement (now in the custody of your orator) when produced will more fully appear. And your orator further sheweth, that in pursuance of the said agreement, an abstract of the title to the said messuage and hereditaments was, shortly after the date of the said articles of agreement, sent unto the attorney concerned for the said George Hargrave for his perusal ; and several objections having been from time to time made to the said title, all such ob- jections were cleared up to the satisfaction of the said George Hargrave, who thereupon caused the draft of a deed, purporting to be a conveyance of the said mes- suage and hereditaments from tlie said Edward Graves to the said George Hargrave and his heirs, to be sub- mitted to the said Edward Graves for his approval and execution : but your orator sheweth that the said Edward Graves would neither approve of, nor object to, the said draft, but utterly refused, without any cause, to abide by the said agreement. And your orator further sheweth that in conse- quence of such refusal on the part of the, said Edward Graves as aforesaid, and on or about the 6th day of January 1835, the said George Hargrave filed his ori- ginal bill of complaint in this Honorable Court against the said Edward Graves, thereby stating the several matters and things hereinbefore stated, and praying that the said Edward Graves might be decreed speci- fically to perform the said agreement so entered into by him as aforesaid, and to execute the deed of conveyance the draft of which had been so tendered to him as afore- said, or some other conveyance of or to the same pur- port or effect, and- to deliver up to the said George Hargrave all the title deeds and documents in the Precedents. 265 custody or power of the said Edward Graves which in XI. Original 11, 1 ^1 • 1 « 1 l^ill in the anywise related to or concerned the said messuage and -^.^^^^^ ^^^ hereditaments, the said George Hargrave being there- Bill of Revivor . upon ready and willing, and thereby offering, to pay to the said Edward Graves the said sum of =CUOOO, and in all respects to perform the said agreement on his part ; and that the said George Hargrave might have such further or other relief in the premises as the nature of his case might require, and to your Lordship should seem meet. And your orator further sheweth that the said Appearance Edward Graves appeared and put in his answer to the ^j^^ ^^g"nJoT.° said bill, and that the said George Hargrave replied thereto ; and that the cause being at issue, witnesses were examined and publication passed ; as by the said bill, answer, and proceedings, now remaining as of re- cord in this Honorable Court, reference being thereto had, will more fully appear. And your orator further sheweth that before any Death of the further proceedings were had in the said suit, and on Plaintiff, the the Jstday of February 1836, the said George Har- grave departed this life, leaving John Hargrave tlie His heir. other defendant hereinafter named, his only son and heir him surviving, and having previously made and published his last will and testament in writing, bear- ing date the 18th day of December 1835, and executed and attested so as to pass freehold estates, and having Devise to this thereby given and devised the said messuage and P^*^'"'^ • hereditaments, so contracted to be purchased by him as aforesaid, to your orator, his heirs, and assigns, and having appointed your orator sole executor thereof; as Makes this in and by the said will when produced will more fully jJeJfJtfr^'^ appear. And your orator further sheweth- that the said will This plaintifr was on kc. duly proved by your orator in the Prero- ^^^^^^^ '^ ^° 266 Precedents. XI. Original gative Court of Canterbury, whereby your orator Nature^of a became the legal personal representative of the said Bill of Revivor. George Hargrave, as by the probate copy of such will, when produced, will more fully appear. Charge that And your orator charges that by virtue of the entuied to tLr ^evise SO made to your orator as aforesaid, he is en- benefit of the titled to stand in the place of the said George Har- agreemen , grave with respect to the said agreement of the 10th day of March 1834, and to have the same specifically performed, and to have the said messuage and he- reditaments conveyed by the said Edward Graves to your orator and his heirs, upon payment of the said sum of £1000, which sum your orator hereby offers to pay. Charge that And your orator charges that by the death of the suit is abated, g^^j Georo;e Harffrave the said suit and proceedings and this plain- , f , , , • i • i tiff entitled to became abated, but that your orator is, as he is ad- revive it. vised, entitled to have the same revived against the said Edward Graves, and to have the same relief against the said Edward Graves as the said George Hargrave would be entitled to if he were still living. That heir at And your orator charges that the said John Har- grave, as heir at law of the said George Hargrave, sometimes, though without any ground, questions the validity of the said devise to your orator, and is there- fore, as your orator is advised, a necessary party to this suit. To the end therefore that the said defendants may, if they can, shew why your orator should not have the relief hereby prayed ; and may upon their several and respective corporal oaths, according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several inter- rogatories hereinafter numbered and set forth, as by law is a neces- sary party. Precedents. 267 the note hereunder written they are respectively re- xi. Original quired to answer ; that is to say, — N^^^^^f 1. Whether &;c. Bill of Revivor. And that it may be declared that your orator, as p"^ ' such devisee of the said George Hargrave as aforesaid, is entitled to revive the said suit and proceedings so become abated as aforesaid, and to have the benefit thereof; and that the said suit and proceedings may be decreed to stand and be revived accordingly, and to be in the same plight and condition as they were in at the time of the said abatement ; and that your orator may have the same relief against the said defendant Edward Graves as the said George Har- grave would be entitled to, if he were still living ; and, if necessary for that purpose, that the said will of the said George Hargrave may be established ; and tliat your orator may have such further &c. [Further relief. Subpoena against Edward Graves and John Hargrave.] The defendant Edward Graves is required to an- swer &c. The defendant John Hargrave is required to an- swer &c. 268 Precedents. XII. Supplemental Bill in the Nature of a Bill of Revivor. — Vide Chap, VIII. In Chancery. To the Right HonoraLle kc. XII. Supple- Humbly complaining sheweth unto your Lordship mental Bill iii , orator Philip Duberly of &c. that on or about the Nature of -^ ...... a Bill of Re- kc. your orator exhibited his original bill of complaint \'^'°''' ; in this Honorable Court against Mark Hepburn Esq. Original bill by as defendant thereto, thereby stating (among other purchaser for ^i^iyjo-s) certain Articles of Ao-reement bearing date specific per. o-' iatiti i formance. &c. and signed by the said Mark Hepburn and your orator, whereby the said Mark Hepburn agreed to sell to your orator the fee simple and inheritance of a certain messuage situate at &c. with the hereditaments appertaining thereto, called Oak Mount, for the sum of £2000; and further stating that the title to the said messuage and hereditaments was submitted to, and approved of by, your orator ; and further stating that the said Mark Hepburn afterwards refused to carry the said agreement into execution ; and praying that the said Mark Hepburn might be decreed specifically to perform the said agreement so entered into by him as aforesaid, and to convey the said messuage and hereditaments to your orator, or as he should direct; your orator being ready and willing, and thereby offering, to pay to the said Mark Hepburn the said sum of £2000, and in all respects to perform the said ao-reement on your orator's part ; and that your orator might have such further or other relief in the pre- mises as the circumstances of the case might require, and to your Lordship should seem meet. Appearance, And your orator further sheweth that the said Mark answer, &c. Precedents. 269 Hepburn, being duly served with process, appeared to xil. Supple- the said bill, and put in his answer thereto; which r?^"^?^^'" '"^ ' ' tlie Nature of answer was replied to ; and the cause being at issue, a Bill of Re- witnesses were examined, and publication passed ; as T°^' by the said bill, answer, and proceedings, now remain- ing as of record in this Honorable Court, reference being had thereto, will more fully appear. And your orator further sheweth, by way of supple- Death of the ment, that before any further proceedings were had in \^^^°^ ^^'f^ '' , * o devising his the said cause, the said IMark Hepburn departed this property to life on or about &c. leaving Orlando Hepburn, one of J,e"appoinTs^°°' the defendants hereinafter named, his eldest son and executors. heir at law, him surviving; and having previously made and publislied his last will and testament in writing, dated kc. and executed and attested as by law was then required for passing real estate, Avhereby he devised and bequeathed all his real and personal estate whatsoever and wheresoever unto James How- son and Richard Hewitt, the other defendants herein- after named, their heirs, executors, administrators, and assigns, respectively, upon certain trusts therein mentioned ; and lie thereby declared that the receipts of the said James Howson and Richard Hewitt should be good and valid discharges for all monies which might come to them by virtue of that his will ; and he appointed the said James Howson and Richard Hewitt executors of his said will ; as by such will, or the probate copy thereof, when produced will fully appear. And your orator further sheweth by way of supple- Probate of the ment, that the said James Howson and Richard ^'"'' '^*^" Hewitt have duly proved the said will in the Prero^a- tive Court of Canterbury, and have thereby become the legal personal representatives of the said testator; and that by such devise as aforesaid the legal estate in the hereditaments so contracted to be sold to your 270 Precedents. XII. Supple- orator as aforesaid, has become vested in tliera, thrN^tuJ^of although the said Orlando Hepburn, as such heir at aBiUofRe- law as aforesaid, sometimes falsely pretends the con- V''"^' trary, and insists that the said devise is void. Charges the And your orator charges that, by the death of the abatement and g^id Mark Hepburn, the said suit and proceedings right to revive. ^^^^ ijgcome abated ; and that your orator is entitled to have the same revived and put in the same plight and condition, as well against the said Orlando Hep- burn, as against the said James Howson and Richard Hewitt, as they were in at the time of the said abate- ment, and to have the same benefit against the said James Howson, Richard Hewitt, and Orlando Hep- burn, as he might have had against the said Mark Hepburn, if he were living. Calls for an. To the end therefore that the said defendants may, swer. •£ ^YiQj can, shew why your orator should not have the relief hereby prayed, and may upon their several and respective corporal oaths, according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer : that is to say ; — 1. Whether &c. Prayer. And that it may be declared that your orator is entitled to revive the said suit and proceedings which have so become abated as aforesaid ; and that the same may be decreed to be revived accordingly, and to stand in the same plight and condition as they stood in previously to the said abatement, and that your orator may have the same relief against the said defendants James Howson and Richard Hewitt, as devisees and personal representatives of the said Mark Hepburn, and also against the said Orlando Hepburn Precedents. 271 as heir at law of the said Mark Hepburn, in case he XII. Supple- shall appear to have any interest in the matters in [^g^Nature^of question, as your orator might have had against the a Bill of Re- said Mark Hepburn if he were still living ; and that V^"*^' , Sec. [Further relief. Subpoena against James How- son, Richard Hewitt, and Orlando Hepburn.] The defendants James Howson and Richard Hewitt are required to ansAver &c. The defendant Orlando Hepburn is required to an- swer &c. XIII. Decree for Revivor. — Vide Chap. VIII. In Chancery. MiNSHULL and others. Plaintiffs. Lord Mohun and others. Defendants. This cause coming this present day to be heard and XIII. Decree debated before the Right Honorable the Lord Keeper /»■• Re^vor. ^ of the Great Seal of Great Britain, in the presence of the Counsel learned for all the parties except the defendant the Lord Mohun, none appearing for him albeit he was duly served with subpoena to hear judg- ment, as by affidavit now read appears, the substance of the plaintiffs' bill appeared to be &:c. [mentions the original pleadings, the abatement, and a supplemental bill in the nature of a bill of revivor.] Whereupon, and upon debate of the matter, and hearing the answer of the defendant the Lord Mohun read, and what could be alleged by the Counsel for all the other parties. His Lordship declared that the defendant the Lord Mohun ought to be bound by the former decree and proceedings, as devisee of the said estate, as much as if he had taken the same by descent; and doth 272 Precedents. XIII. Decree therefore think fit, and so order and decree, that the for Revivor.^ ^^^^ former decree and proceedings do stand revived and be carried on and executed against the Lord Mohun ; and that the said partition and allotment &c. [here follows the decree upon the merits.] And this decree is to be binding to the Lord Mohun, unless the said defendant the Lord Mohun, being served with process of subpoena for that purpose, shall at the return thereof shew unto this Court good cause to the contrary. But, before he is to be admitted to shew cause, he is to pay unto the plaintiffs costs for this day's default to be taxed by the said Master (a). XIV. Original Information in the Nature of a Suj)- jjlemental Information against the Successor of a Rector Defendant. — Vide Chap. X. In ChAxNCery. To the Right Honorable &c. XIV. Original Informing sheweth unto your Lordship Sir A. B. Information in j^^ jj^^. Majesty's Attorney General, at and by the the Nature of a J J J f ^ Supplemental relation of William Duller of &c. Esq. that William Information. ^ g^^^^^ ^^^^ ^^ ^^_ j^^^^ ^^^^^ ^^^^j^ ^^^ executed his Will of Wm. last will and testament bearing date the 12th day of Stacey. M?iy 1838, and thereby, after bequeathing several Residuary per- legacies, gave and bequeathed all the residue of his sonai estate to personal estate whatsoever unto his executors there- executors on trust. inafter named, upon trust, as to one equal third part One third to thereof, for all the children of his niece Caroline drerf** ^' '^' Stacey. who should be living at his the said testator's death, equally to be divided between them, share and {a) MinshuU v. Mohun, Reg. Lib. 1710, B. fol. 454. Precedents. 273 share alike ; and as to one otlier equal third part xiv. Original thereof, upon trust that his said executors should Information in , . . the iSature of a convert the same into money and invest the clear Supplemental proceeds thereof in the purchase of Consolidated three l^"f"™ation. ^ per cent, annuities in their names, and should pay the One third to dividends arising therefrom unto the rector for the parish °^ time being of the parish of Ames in the county of M. for the absolute use and benefit of such rector in augmentation of his stipend; and as to the remainino; Remaining third part of his said residuary personal estate, upon poo?/° *^^ trust that his said executors should convert the same into money, and invest the clear proceeds thereof in the purchase of Reduced three per cent, annuities in their names, and apply the dividends arising therefrom in the relief of poor and decayed tradesmen in the said parish of Ames; and the said testator appointed Thomas Hoi well and Marmaduke Stacey, two of the defendants hereto, his executors, and gave them the first year's income of his estate for their own use, as by the probate thereof will appear. And Her Majesty's Attorney General, at and by Death and the relation aforesaid, further sheweth, that the said ^'^°^^*^- William Stacey departed this life on or about the 1st day of December 1838, without having revoked or in anywise altered his said will ; and such will was in the month of January 1839 duly proved in the Pre- rogative Court of Canterbury by the said Thomas Holwell and Marmaduke Stacey, by means whereof they became, and now are the legal personal repre- sentatives of the said testator. And Her Majesty's Attorney General, at and by the Names of the relation aforesaid, further shewetli, that at the time '^^^^'^'■^^°*^^'^^ of the death of the said testator the said Caroline rector^f the Stacey had two children living, and no more, that is P^"*'^* to say, Henry Stacey, and Charlotte Stacey; and that T 274 Precedents. XIV. Original Information in the Nature of a Supplemental Information. Original in- formation. Appearance and answers. Reference to Master. at the same period the Rev. James Scott was the rector of the said parish of Ames. And Her Majesty's Attorney General, at and by the relation aforesaid, further sheweth, that on the 7th day of July 1839 the said Attorney General, at the relation of the said William Buller, filed his original information in this Honorable Court against the said Thomas Holwell, Marraaduke Stacey, Henry Stacey, Charlotte Stacey, and James Scott, as defendants thereto, stating to the effect hereinbefore stated, and praying that the trusts of the said will of the said William Stacey might be carried into effect under the direction of this Court, and that the usual accounts of the personal estate of the said testator, and of his debts, funeral and testamentary expenses, and legacies, might be taken, and the clear residue of his personal estate ascertained and distributed ; and that in parti- cular one equal third part of such clear residue might be laid out in the purchase of Reduced three per cent, annuities, and secured in this Court for the charitable purposes in the said will in that behalf mentioned ; and that it might be referred to one of the Masters of this Court to approve of a scheme for the said Charity ; and that such further or other relief might be had in the premises as the nature of the case might require and to your Lordship should seem meet. And Her Majesty's Attorney General, at and by the relation aforesaid further sheweth, that the said seve- ral defendants to the said original information, being duly served with process, appeared and put in their several answers thereto ; and that the said cause was heard upon information and answer before His Lord- ship the Master of the Rolls on the &c. when His Lordship was pleased to refer it to the Master to in- quire and state to the Court whether the said Caroline Precedents. 275 Stacey had any and what child or children living at XIV, Original the death of the said testator or Lorn in due time tbeXature'of'a afterwards ; and if the said Master should find that the Supplemental said Caroline Stacey had any child or children living ^ ' -. at the death of the said testator or born in due time afterwards, and that such child, or all such children, was or were a party or parties to the said suit, then he was to proceed to take an account of the personal estate of the said testator not specifically bequeathed, come to the hands of the said Thomas Hohvell and Marmaduke Stacey, or either of them, or any person or persons by their or either of their order, or for their or either of their use ; and it was ordered that the said Master should take an account of the debts, funeral expenses, and legacies of the said testator, and compute interest on such of his debts as carried in- terest after the rate the same respectively carried in- terest, and upon his legacies after the rate of four per cent, per annum from the end of one year after the said testator's death ; and it was ordered that the said Master should cause an advertisement to be published in the London Gazette, &:c. [as to the creditors of the testator.] And it was ordered that the said testator's personal estate should be applied in payment of his debts and funeral expenses in a due course of adminis- tration, and then in payment of his legacies. And the said Master was to ascertain and certify the amount of the clear residue of the said testator's personal estate, distinguishing such part, if any, as consisted of chattels real ; and for better taking of the said account and discovery of the matters aforesaid, the parties were to produce before the said Master upon oath, all deeds, papers, and writings in their custody or power relating thereto, and were to be examined upon interrogato- ries as the said Master should direct ; and His Lord- t2 276 Precedents. XIV. Original Information in the Nature of a Supplemental Information. Master has not yet made his report. Death of the Rector and appoint- ment of a successor. Charge of right to benefit of former pro- ceedings. ship reserved the consideration of all further directions, and of the costs of the said suit, until after the said Master should have made his report; and any of the parties were to be at liberty to apply to this Court as they should be advised. And Her Majesty's Attorney General, at and by the relation aforesaid, further slieweth, that in pursuance of the said decree divers proceedings have been had before the Master to whom the said cause was referred, but he has as yet made no report thereon, as by the said original information and other proceedings, now remaining as of record in this Honorable Court, re- ference being had thereto, will more fully appear. And Her Majesty's Attorney General, at and by the relation aforesaid, further sheweth, that pending the said proceedings before the Master, and within one year after the death of the said testator, that is to say, on or about &c. the said James Scott departed this life, and shortly afterwards, that is to say, on or about &c. the Rev. Ebenezer Wilkinson, one of the de- fendants hereinafter named, was duly presented to the said Rectory, and instituted and inducted into the same, and he is now the true and lawful rector tliereof. And Her Majesty's Attorney General, at and by the relation aforesaid, charges that by such the death of the said James Scott as aforesaid the said original suit became defective and incapable of being con- tinued, but that he the said Attorney General is enti- tled to supply such defect by this his present informa- tion, and thereby to have the same relief as he would have had from his said original information, if the said Ebenezer Wilkinson had at the time of the filing thereof been the rector of Ames aforesaid, and had been made a party to such original information, and Precedents. 277 that for tliat purpose this his information ought to be XIV. Original taken as supplemental to such former information. the*Natu'reof^ And Her iNlajesty's Attorney General, at and by Supplemental the relation aforesaid, further charges, that the said >. ' j Thomas liolwell and Marmaduke Stacey dispute the Executors are • 1 f> 1 • 1 T^i TT7--1I • 1 .1 necessary par- title 01 the said hbenezer Wilk.inson and are there- ties. fore necessary parties to this suit. To the end therefore that the said defendants may, Calls for an- if they can, shew why the said Attorney General ^'^^^' should not have the relief hereby prayed, and may upon their several and respective corporal oaths, ac- cording to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer ; that is to say ; — 1. Whether, &c. And that Her Majesty's Attorney General may have Prayer. the same relief from his said original information, as he mio-ht have had if at the time of the filin"- thereof the said Ebenezer Wilkinson had been rector of the said parish of Ames, and had been made a party de- fendant to such information ; and that for that pur- pose this information may be taken as supplemental to such former information ; and that such further or other relief may be had in the premises as the circum- stances of the case may require, and to your Lordship shall seem meet, may it please, &c. [subpoena against Ebenezer Wilkinson, Thomas Holwell, and Marma- duke Stacey.] The defendant Ebenezer Wilkinson is required., &c. The defendants Thomas Holwell and Marmaduke Stacey are required, &c. 2*78 Precedents. XV. Decree on an Original Bill in the Nature of a Supplemental Bill, filed hy a Remainder-man on the Death of a Tenant for Life. — Vide Chap. X. XV. Decree on This cause coming on this present day to be heard au Original ^ debated before the. Right Honorable the Master Bui in the * Nature of a of the Rolls, in the presence of Counsel learned on Supplemental ^^^^^ gides ; and the pleadings being opened, upon debate of the matter, and hearing what was alleged by the Counsel on both sides ; His Lordship doth declare that the plaintiff, as claiming to be interested in re- mainder to property of which Catharine Mary Upjohn deceased, in the pleadings of this cause named, was tenant for life, is entitled to have the benefit of the cause in the said pleadings mentioned, wherein the said Catharine Mary Upjohn, by Thomas Henry Waller her next friend, was plaintiff, and the plain- tiff and the defendants in this cause were the defend- ants ; and of all the proceedings in such former cause ; and that, as far as may be necessary to obtain such benefit, the plaintiff is entitled to stand in the place of the said Catharine Mary Upjohn, for the purpose of prosecuting and continuing the said former suit and proceedings : And His Lordship doth decree the same accordingly : And it is ordered that the Order made in this cause(a) on the twenty-second day of February, 1841, be continued, and the accounts and inquiries thereby directed be carried on : And His Lordship doth reserve the consideration of all farther directions, and of the costs of this suit, until after the said Master shall have made his report pursuant to the said Order : (a) This was an order made on inquiries, which had been directed motion for continuing preliminary in the original cause. Precedents. 279 And any of the parties are to be at liberty to apply to XV. Decree this Court as there shall be occasion (b). ?J^,f" ^f'^'^^^ ^ ' Bill in the Nature of a Supplemental BiU. XVI. Original Bill in the Nature of a Supplemental Bill by the Assignees of a Sole Plaintiff who became Banhupt pendente lite. — Vide Chap. XI. In Chancery : To the Right Honorable &c. Humbly complaining shew unto your Lordship your XVI. Original orators Joseph Hunt of &c. and William Brown of &c. ^^atuTe^of a that in the month of &c. John Farrant, the defendant Supplemental T>:i| hereinafter named, being seised or otherwise entitled t ' ^ in fee simple of or to a certain messuage and heredi- Mortgage in taments called &c. situate, &c. borrowed the sum of £3000 of William Dunsford of Oornhill in the City of London, merchant, upon the security of the said pre- mises, and thereupon by indentures of lease and release bearing date respectively &:c. the indenture of release being made between the said John Farrant of the one ^part, and the said William Dunsford of the other part, in consideration of the sum of £3000 to the said John Farrant paid by the said William Dunsford, the said messuage and hereditaments were conveyed and as- sured by the said John Farrant unto and to the use of the said W^illiam Dunsford, his heirs and assigns, sub- ject to a proviso for redemption of the same on pay- ment by the said John Farrant, his heirs, executors, administrators, or assigns, to the said William Duns- ford, his executors, administrators, or assigns, of the sum of £3000, with interest for the same after the {b) Upjohn V. Upjofin, Reg. Lib. B. 1840, fol. 1072; and supra, Chap. X. 280 Precedents. XVI. Oiigiaal rate of five per cent, per annum, at the time in the Bill in the jj indenture of release mentioned, and long- since Nature of a • i p i i Supplemental past ; as in and by the same indentures of lease and ?''^' , release when produced will more fully appear. Mortgage be- And your orators further shew that the said sum of comes abso. ^3000 was not paid at the time in the said indenture lute. ^ of release in that behalf provided, whereby the estate and interest of the said William Dunsford in the said messuage and hereditaments became absolute at law, and redeemable only in equity. Mortgagee And your orators further shew that shortly after- enters into -wards the said William Dunsford entered into posses- possession. . „ , 1 r« p sion, or into the receipt of the rents and pronts, ot the said messuage and hereditaments, and continued in such possession or receipt up to the time of his bankruptcy hereinafter stated. Amount of the And your orators farther shew that on the 6tli day debt due at ^ j^^^^ ^ g4Q ^^^^^ ^^^^ ^^^ ^^ ^l^g saij William Duns- the filing of „ . . the original ford, on the security of the said mortgage, for princi- pal and interest, after deducting all sums received by him on account of the said rents and profits, or other- wise, the sum of ^£'3879 18s. bcl Original bill And your orators further shew that on the said 6tli day of June 1840 the said William Dunsford exhibited^: his original bill of complaint in this Honorable Court against the said John Farrant as defendant thereto, thereby stating the matters and things hereinbefore stated, and praying that an account might be taken, by and under the direction and decree of this Honor- able Court, of what was due to him for principal and interest on his said mortgage, and that the said John Farrant might be decreed to pay to him the said William Dunsford, or as he should direct, the amount of what should be so found due to him, together with the costs of that suit, by a short day to be appointed for that purpose by this Honorable Court, the said William bill. of foreclosure. Precedents. 281 Dunsford being ready and willing, and tliereljy ofi'er- xvi. Original , , , . , ^ ^, Bill in the ing, upon such payment being made, to reconvey tiie Nature of a said messuage and hereditaments to the said John Supplemental Farrant, or as lie should direct ; or that, in default of ^ ^ such payment being made, the said John Farrant, and all persons claiming under him, might be barred and foreclosed of and from all right title and equity of re- demption of in and to the said mortgaged premises, and might deliver up to the said William Dunsford all deeds evidences and writings in their custody or power relating thereto, and might do and execute all neces- sary acts and deeds for the purpose of more effectually vesting and securing the same to the said William Dunsford, and that he the said William Dunsford might have such farther or other relief in the pre- mises as the nature of his case might require, and to your Lordship should seem meet. And your orators further shew that the said John Proceedings Farrant, being duly served with process, appeared to '° *^^ '^'^^^^• the said bill of the said William Dunsford and put in his answer thereto, to which the said William Duns- ford replied, and that the said cause being at issue, witnesses were examined on both sides, and publication passed ; as by such bill, answer, and proceedings, now remaining as of record in this Honorable Court, refer- ence being thereto had, will more fully appear. And your orators further shew that before any fur- Bankruptcy of ther proceedings were had in the said cause, and on ^^^ plamtifF. or about &c. a fiat in bankruptcy was awarded and issued against the said William Dunsford, under which he was duly found and declared a bankrupt, and your orator Joseph Hunt was duly chosen by the creditors of the said William Dunsford to be the assignee of his estate and effects ; and your orator William Brown was duly appointed the Official Assignee in the said bank- 282 Precedents. XVI. Original Bill in the Nature of a Supplemental Bill. ^ . ' Plaintiffs have entered into possession. Charge that plaintiffs are entitled to the mortgage debt. Charge that plaintiffs are entitled to the benefit of the former suit. Calls for an- swer. Prayer. ruptcy ; as by the said fiat and other proceedings, now of record in the Court of Bankruptcy, reference being had thereto, will more fully appear. And your orators further shew that your orators, as such assignees, have entered into possession or into the receipt of the rents and profits of the said mort- gaged premises. And your orators charge that by virtue of their said appointment your orators have become entitled to the said sum of £3879 18s. bd. so due and owing for principal and interest as aforesaid, or to such other sum as shall be found to be now due and owing for principal and interest on the said mortgage. And your orators charge that by the said bank- ruptcy of the said William Dunsford, the said suit so instituted by him has become defective, but that your orators, as such his assignees as aforesaid, are entitled to have the benefit of such suit and of the proceedings therein, and to prosecute the same against the said John Farrant from the period when it so became de- fective as aforesaid, and that for that purpose this their bill ought to be taken as supplemental to the said bill of the said William Dunsford. To the end therefore that the said defendant may, if he can, shew why your orators should not have the relief hereby prayed, and may upon his corporal oath, according to the best and utmost of his knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several inter- rogatories hereinafter numbered and set forth, as by the note hereunder written he is required to answer; that is to say ; — 1. Whether &c. And that it may be declared that your orators as such assignees as aforesaid, are entitled to have the Precedents. 283 benefit of the said original suit, and of the proceed- XVI. Original ings therein ; and that your orators may be at liberty Nature*^of a to prosecute the same against the said defendant from Supplemental the period when the said original suit so became defec- » ' • tive by the bankruptcy of the said William Dunsford as aforesaid ; and that for that purpose this bill may be taken as supplemental to the said bill of the said Wil- liam Dunsford ; and that your orators may have the same relief against the said defendant as the said William Dunsford might have had if he had not become bank- rupt ; and that your orators may have &c. [Further relief. Subpoena against John Farrant.] The defendant is required to answer all the above interrogatories. XVII. Supplemental JBlll against the Assignees of a Defendant who became Bankrupt pendeiiie lite. — Vide Chop. XI. In Chancery. To the Right Honorable, &:c. Humbly complaining sheweth unto your Lordship XVII, Supple- your orator John Bailey of &c. that on &c. your orator '^^'Jtal Bill . . , . • • 1 •^^ o ■ ■ • against Assig- exhibited his original bill of complaint in this Honorable nees of Bank- Court, which was afterwards amended by order &;c. and fendant ' which bill so amended was against David Smith and ^ Thomas Egan as defendants thereto ; thereby stating rede^mp^tion of' that by indentures of lease and release, bearing date ^ mortgage. respectively the 20th and 21st days of September 1834, and made between your orator of the one part, and the said David Smith of the other part, in consi- deration of a sum of £5000 to your orator advanced and lent by the said David Smith, your orator conveyed 284 Precedents. XVII. Supple- and assured unto the said David Smith and his heirs a mental Bill . p t h i -r» against Assig- certain lami and hereditaments called Kosemount, neesofBank- gjtua^te at kc. of which your orator Avas seised in fee; rupt De- *' . fendant. to hold the same unto the said David Smith his heirs ' and assigns I'or ever, subject to redemption on pay- ment by your orator, his heirs, executors, administra- tors, or assigns, unto tlie said David Smith, his execu- tors, administrators, or assigns, of the sum of £5000, together with interest for the same after the rate of four and a half per cent, per annum on the 21st day of March 1835 : And further stating that the said sum of =C5000 was not paid to the said David Smith on the day so appointed for such payment as aforesaid : And furtlicr stating that by indentures of lease and release, bearing date respectively the 4th and 5th days of May 1837, and made between the said David Smith of the one part and the said Thomas Egan of the other part, for the considerations therein mentioned the said David Smith assigned the sum of ^£'2500 being one equal moiety of the said sum of £5000, so due from your orator as aforesaid, together with one equal moiety of all interest thenceforth to accrue upon the said sum of £5000, unto the said Thomas Egan his executors, ad- ministrators, and assigns, for his and their own use and benefit. And the said David Smith thereby conveyed and assured the said farm called Rosemount, and all and singular the hereditaments in the said indentures of the 20th and 21st days of September 1834 comprised, unto the said Thomas Egan and his heirs, to the use of the said Thomas Egan and David Smith their heirs and assigns as tenants in common, subject neverthe- less to such right or equity of redemption as the same were subject to by virtue of the said indenture of the 21st day of September 1834 : And further stating that the whole of the said sum of £5000 was still due and Precedents. 285 owing from your orator, together with interest thereon XVII. Supple- after the rate aforesaid from the 21st day of September ^g'^^^^l Issj.. 1840, and that he was desirous of redeeming the said neesof Bank. mortgage, and had applied for that purpose to the said fgndant^" David Smith and Thomas Egan, and offered to pay ' ' ' them the said principal sum and interest according to their several rights therein, and had requested them to reconvey the said hereditaments to your orator, and to deliver to him all deeds, papers and writings re- lating thereto ; and that the said David Smith was willing so to do, but that the said Thomas Egan refused to accede to your orator's said requests : And praying Prayer, that it mio-ht be referred to one of the Masters of this Honorable Court to take an account of what was due from your orator to the said defendants for prin- cipal and interest on the said mortgage, and to whom the same was payable ; and that upon payment by your orator of the amount ^yhich should be so found due, in the manner in which the said Master should find the same to be payable (which your orator thereby offered to do) the said defendants might be decreed to reconvey the said mortgaged premises to your Orator, or as he should direct, and to deliver up all deeds, papers and writings in their or either of their custody or power relating thereto ; and that your orator might have such further or other relief in the premises, as the circumstances of his case might re- quire, and to your Lordship should seem meet. And your orator further sheweth that the said David Appearance ■^ . , , 1 • 1 of both de- Smith and Thomas Egan, bemg duly served Avith pro- fendants. cess, appeared to your orator's said bill, and the said David Smith put in his answer thereto ; as by such Answer of original bill and proceedings now remaining as of ™ record in this Honorable Court, reference being had thereto, will fully appear. 286 Precedents. XVII. Supple- mental Bill against Assig- nees of Bank- rupt De- fendant. V . > Bankruptcy of Egan. Assignees are necessary parties. Calls for an- swer to both bills. And your orator further slieweth by way of supple- ment, that before the said Thomas Egan had answered your orator's said bill, or any further proceedings were had in the said cause, and on or about &c. a fiat in bankruptcy was awarded and issued against the said Thomas Egan, under which he was duly found and declared a bankrupt ; and Henry Jones, one of the defendants hereinafter named, was duly chosen by the major part of the creditors to be the assignee of the estate and effects of the said bankrupt ; and Walter Wiseman, the other defendant hereinafter named, was duly appointed the Official Assignee under the said bankruptcy ; as by the said fiat and other proceedings, now remaining as of record in the Court of Bankruptcy, reference being thereto had, will more fully appear. And your orator charges that by means of such fiat and proceedings all the estate right and interest of the said Thomas Egan in the said mortgage debt, and the security for the same, has become vested in the said Henry Jones and Walter Wiseman ; and the said suit so instituted by your orator as aforesaid has be- come defective ; but your orator is entitled to have the benefit of such suit, and of all the proceedings therein, against the said Henry Jones and Walter Wiseman, as such assignees as aforesaid, and to have the same relief against them as he might have had against the said Thomas Egan, if he had not become bankrupt. To the end therefore that the said defendants may, if they can, shew why your orator should not have the relief hereby, and by his said original bill {a), prayed, and may upon their several and respective corporal (a) These words ought to be in- calls for an answer to the original serted when the supplemental bill bill. Precedents. 287 oaths, according to the best and utmost of their seve- xvii, Suppie- ,1 ,•111 1 • p mental Bill ral and respective knowledge, remembrance, inlorma- against Assig. tion, and belief, full, true, direct, and perfect answer nees of Bank- 1 • • • rupt De- make to such of the several interrogatories in yourfendant. orator's said original bill numbered and set forth, as ^ by the note thereunder written the said Thomas Egan was required to answer, and also to such of the said several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are re- spectively required to answer ; that is to say ; — 1. Whether &c. And that your orator may have the benefit of his Prayer, said original suit, and of all the proceedings therein, against the said defendants as such assignees as afore- said, and may have the same relief against them as he might have had against the said Thomas Egan if he had not become such bankrupt as aforesaid ; and that your orator may have &c. [Further relief. Subpoena for appearance and answer to both bills against Henry Jones and Walter Wiseman.] The defendants are required to answer all the above interrogatories. XVin. Decree on a Supplemental Bill against the Assignees of a Defendant to the Original Dill, who had become Insolvent after De- cree. — Vide Chap. XI. — His Honor doth declare the plaintiff entitled to XYlli. Decree the benefit of the former suit, and of the decree made ^° ntamu ' therein, bearing date &c. and of the proceedings under against As- the same, against the present defendant, as represen- \° ''"^ , tative of the defendant John Cumberland Altham ; 288 Precedents. XVIII. Decree and His Honor cloth order and decree the same ac on a Supple mental Bill against As- signees. cordingly ; and it is ordered that the said decree and proceedings be carried on against the said defendant, as they were directed to be carried on against the said defendant John Cumberland Altham ; and His Honor doth reserve the consideration of all further directions, and of the costs of this suit, as the same were reserved by the former decree ; and any of the parties are to be at liberty to apply to this Court as they may be ad- vised (fl). XIX. Order that a Purchaser pendente lite, not a Parti/ to the Suit, be at liberty to attend the Master in making Inquiries under the Decree. — Vide Chap. XI. In this case William Farlar, a stranger to the suit, had purchased, after decree, but pending a reference to the Master, the interest of William Francis Toosey, one of the plaintiffs, who had since become insolvent. XIX. Order that Purchaser may attend the Master. — His Honor doth order that the said petitioner William Farlar be at liberty to attend the said Master upon the several inquiries directed by the said order of the Gth day of June 1821 ; and it is ordered that the solicitor for the plaintiffs do, from time to time, o'ive notice to the petitioner of all proceedings to be had and taken in the said Master's Office, and other- wise, in and about the suit, until the further order of (a) Phillips X. Clark, Reg. Lib. B. 1833 fol. 1391. Precedents. 289 this Court ; the petitioner by his Counsel undertaking Xix. Order to pay the costs of all parties, and of the assignees of „^ay attend the the plaintiff AVilliam Francis Toosey, of this applica- ^lastei-. tion, to be taxed &c. and that the same be paid by the said petitioner; and this order is to be without pre- judice to the rights of the parties to this suit, and also without prejudice to the right of the assignees of the plaintiff William Francis Toosey to dispute the vali- dity of the assignment in the said petition named («). XX. Supplemental Bill against an Infant born j^en- dente lite, — Vide Chap. XII. In Chancery. To the Right Honorable &c. Humbly complaining shewetli unto your Lordship xx. Suppie- your orator Thomas Winslow of &c. that on or about "gainst f Child &c. your orator exhibited his original bill of complaint hom pendente in this Honoi'able Court against Stephen Joy and v " ^ Lucy his wife and Mary Sumner, as defendants thei-e- Original bill to, thereby stating the will of the Rev. Arthur Sumner Jy executor ' . 'O'" ^^ account. deceased, bearing date &c. whereby, after bequeath- ing divers pecuniary and specific legacies as therein mentioned, he gave and bequeathed the residue of his personal estate to your orator, upon trust to convert the same into money, and to invest the proceeds thereof as therein mentioned, and to pay the annual income arising therefrom to the said Stephen Joy during his life, and after his decease to the said Lucy Joy during her life, and after the decease of the sur- vivor of them the said Stephen Joy and Lucy his wife, (a) Toosey v. Burchell, Reg. Lib, B. 1820, fol. 1427. U 290 Precedents. XX. Supple- upon trust to pay and transfer the capital of the said r°^a^ast a Child investments unto all the children of the said Stephen horn pendente Joy by the Said Lucy his wife, who being sons should [^- , attain the age of twenty-one years, or being daughters should attain that age or be married, equally to be divided between them share and share alike, and in case there should be only one such child, in trust for such only child ; and in case there should be no child of the said Stephen Joy by the said Lucy his wife, ■who being a son should live to attain the age of twenty-one years, or being a daughter should attain that age or be married, then upon trust to pay and transfer the said trust funds to the said Mary Sumner, her executors, administrators, or assigns ; and the said testator appointed your orator sole executor of his said will : And further stating the death of the said testator, and the probate of his will by your orator, and that the said Stephen Joy had then no issue by the said Lucy his wife : And praying that the trusts of the said will of the said testator might be executed under the sanction of this Honorable Court, and that proper accounts might be taken under a decree of this Court of the personal estate of the said testator, and of his debts and funeral and testamentary expenses, and of the legacies given by his will ; and that such personal estate might be applied in a due course of administra- tion, and the clear residue thereof ascertained, and invested and secured for the benefit of all parties en- titled thereto, your orator submitting to account for all assets received by him, or by his order or for his use, and to act in the premises as the Court should direct ; and that your orator might have such further or other relief in the premises as the circumstances of his case might require, and to your Lordship should seem meet. Precedents. 291 And your oratoi' further sheweth, that the said XX. Supple- Stephen Joy and Lucy his wife, and Mary Sumner, ^^"^^j^ ^'^!j^^j being duly served with process, appeared to yowr'^om pendente orator's said bill, and put in their answers thereto, t ^' and the said cause came on to be heard on bill and Appearance, answer before His Lordship the Master of the Rolls Answer, and . Decree for on &c. when His Lordship \ras pleased to order and account. decree that it should be referred to the Master of this Court in rotation, to inquire and state whether there was, or had ever been, any and what issue of the said Stephen Joy by the said Lucy his wife ; and in case he should find that there was not, and never had been, any such issue, then, your orator submitting by his said bill to account, it was ordered that the said Master should proceed to take an account of the per- sonal estate of the said testator come to the hands of your orator, or of any other person or persons by his order or for his use ; and it was ordered that the said Master should proceed to take an account of the debts, funeral expenses, and legacies of the said testator &:c. [the usual decree for an account.] And this Court reserved the consideration of all further directions until after the said Master should have made his re- port ; and any of the parties were to be at liberty to apply to this Court as they should be advised. And your orator further sheweth that divers pro- Master has not ceedings have, in pursuance of the said decree, been ^^^ ^^^^ ^^^ had before the Master to whom the said cause was referred, but he has as yet made no report thereon ; as by such bill and proceedings, now remaining as of record in this Honorable Court, reference being thereto had, will more fully appear. And your orator further sheweth, by way of supple- Birth of achUd ment, that pending the aforesaid proceedings before interested the Master, and on &c. a child was born of the said u2 292 Precedents. XX. Supple- Lucy Joy, by her husband the said Stephen Jov : and mental Bill . -^ ii-ii i , i, ., against a Child that such child was a daughter, and has since been horn pendente christened by the name Lucetta, and is the defendant hte. . •' *^ , ' hereinafter named. And your orator charges that such child is interested in the residuary personal estate of the said Arthur Sumner, and is a necessary party to this suit, and that your orator is entitled to have the same relief from his said original bill as if the said Lucetta Joy had been born before the same was filed, and had been made a party thereto. Calls for an- To the end therefore that the said defendant may, if bilk. ° ° ®^^^ ^^^> shew why your orator should not have the relief hereby, and by his said original bill (a), prayed, and may upon her corporal oath, according to the best and utmost of her knowledge, remembrance, informa- tion, and belief, full, true, direct, and perfect answer make to such of the several interrogatories in your orator's said original bill numbered and set forth, and also to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written she is required to answer ; that is to say ; — 1. Whether &c. And that your orator may have the same relief from his said original bill as if the said defendant had been born before the same was filed, and had been made a party thereto ; and that your orator may have &c. [Further relief. Subpoena for appearance and answer to both bills against Lucetta Joy.] The defendant is required to answer the interro- gatories in the original bill numbered respec- tively Sec. and all the above interrogatories. (a) These words should be in- calls for an answer to the original serted when the supplemental bill bill. INDEX. A. ABATEMENT, definition of, G3. nature of, 65. partial, 65, 7fi. what events cause it, 66. effects of, 72. on existing proceedings, 72. order to dismiss bill, 72. process, injunctions, &c., 73. perpetual injunction, 73. bill taken pro confesso, 225. on further proceedings, 73. order in the cause, 73, 79. dismissal of bill, see Dismissal of Bill. process of contempt, 74. cross bill, 75. depositions, 75, 79. passing a decree, 75. when partial only, 76. payment out of Court, 77. delivery of deeds and writings, 79. conduct of the cause, 79. enrolment of decree, 79. judgment, 80. order on appeal, 80. ABSCONDING, defendant, see Order for Revivor. ACCOUNTS, taken in the original suit, not binding on a party omitted, 41. how far binding on an assignee, 187. partnership, may be directed upon petition, 14. 294 INDEX. ACCOUNTS— cow^mMe^. partnership, ought to be taken under the general order to take accounts, 14. may now be taken up to the time of taking, without supplemental bill, 219. unless the account is in consequence of the suit, 220. ADMINISTRATOR, de bonis non, may revive the suit of the former administrator, 153. the personal representative of the former administrator need not be a party, 226. durante minori cetate, 204. jjendente lite, 205. AFFIDAVIT, in support of a petition for leave to file a bill of review, 44. ALIEN, whether his suit abates on the commencement of a war, 70. ALIENATION, see Assignment. ALIENEE, see Assignee. AMENDMENT, in respect of errors inherent, in what cases allowed, 14. preferable to supplemental bill, 6. may be introduced into bills of revivor, 104. or supplemental bills in the nature'of bills of revivor, 134. may be after revivor, 145. in respect of errors subsequent, 4, 61, 208. ANSWER, to original bill, called for by supplemental bill, 25, 38. bill of revivor, 106, 123. to supplemental bill, 37. to bill of revivor, 119. time allowed for, effects of revivor on, 137. APPEAL, effect of a revivor of the suit below upon, 142. APPEARANCE, to original bill, where defendant dies before, 21, 100. devises before, 133. assigns before, 182. to bill of revivor, 115. INDEX. 295 ASSETS, bill of revivor may inquire as to, 105. ASSIGNEE, cannot file a bill of review, 46. in bankruptcy or insolvency, see Bankruptcy, and Insolvency. of a sole plaintiff, disputed, 180. total, 174. partial, 181, of a co-plaintiff, 181. of a defendant, 182. comes in pro bono et malo, 192. may add himself to the suit, 192. sometimes without filing a bill, 193. otherwise by a new bill, after notice to the plaintiff, 193. how far he obtains the benefit of a former decree, 177, 195, See also Assignment. ASSIGNMENT, effects of, 63, 171. total, by sole plaintiff, 173. where the plaintiff adds the assignee to the suit, 180. disputed, 180. partial, 181. by coplaintiff, 181. by defendant, 182. before appearance, 182. where the assignee adds himself to the suit, 192. 5'ee also Assignee. ATTAINDER, whether it causes abatement, 80. B. BANKRUPT, plaintiff, may proceed with his own suit, 180. whether he must bring forward his assignees, 181. defendant, plaintiff may go in under the bankruptcy, 182. whether he may have his bill dismissed without costs, 182. See also Bankruptcy. BANKRUPTCY, does not cause abatement, 70. 296 INDEX. BANKRUPTCY— con/mweff. of plaintiff, dismissal of bill upon, see Dismissal of Bill. assignees in, death of, pendente lite, 155. removal o^, pendente lite, 205. See also Bankrupt. BENEFIT OF FORMER PROCEEDINGS, how far obtained in supplemental suit, 150, 177, 195. whether obtained by order or decree, 152. BILL OF REVIEW, when necessary, 44. supplemental bill in the nature of a, see Supplemental Bill. See also Decree, and Supplemental Matter. BILL OF REVIVOR, when necessary, 98. one bill in several suits, 98. may be joined with a supplemental bill, see Biu, of Revivor and Supplement. form of, 102. may inquire as to assets of deceased defendant, 105. sometimes calls for answer to the original bill, 106, 123. after decree must not controvert the decree, 100. parties to, 106. subpoena upon, 112. is a distinct record from the original bill, 114. is useless without an order for revivor, 11.3. dismissal of, in default of obtaining order for revivor, sen Dismissal OF Bill. original bill in the nature of a, see Original Bill. supplemental bill in the nature of a, see Supplemental Bill. BILL OF REVIVOR AND SUPPLEMENT, nature of, 99, 105, 106, 112, 225. calls for an answer, 105, 106. order for revivor, as to the revivor part of it, 225. is set down to be heard as to the supplemental part, 125, 225. against the party to the revivor part as well as the party to the supplemental part, 125. dismissal of, see Dismissal of Bill. BISHOP, death of a, 148. INDEX. 297 CESSATION OF AN INTEREST, on the death of a party, 148. during the life of a party, 201. CHILD, see Infant. COMMITTEE OF LUNATIC, see Lunatic. CONDUCT OF THE CAUSE, may be sometimes changed during an abatement, 7.9 • CONFESSION, after decree, by plaintiff, will not warrant a bill of review by de- fendant, 54. CONSENT, decree taken by, cannot be reviewed, 46. CORPORATION SOLE, death of, 148, COSTS, no revivor for, 82. unless taxed, 83. or left untaxed by special agreement, 83. or to be paid out of a particular fund, 84. effects of revivor on, 143. when the abatement and revivor are be/ore the decree for costs, 143. when they are after the decree for costs, 144. CREDITORS' SUIT, does not abate by death of co-plaintiff, 65. unless the plaintiffs sue in respect of their several demands, or in different capacities, 66. death of a sole plaintiff in a, 155. CROSS BILL, filed during abatement, gains priority, 75. D. DEATH, if the interest survives, the suit abates, 62, 65. if not, the suit terminates as to that party, 63. what events cause a civil death, 66. 298 INDEX. DECREE, in the original suit, parties omitted may be added after, 19. supplemental bill in aid of, 21. how reversed on supplemental matter, 43. if signed and enrolled, by bill of review, 44. if not, by rehearing and supplemental bill, 44. cannot be reviewed by assignee, or devisee, 46. nor if taken by consent, 46. if obtained by fraud, must be reversed by a new original bill, 54. must be performed before the review, 55. must be impeached in the Court in which it was made, 56. may be reviewed more than once, 57. may be reviewed after affirmation in the House of Lords, 57. within what time, 57- See also Supplemental Matter. cannot be altered on account of an event subsequent, 220. pronounced before abatement, cannot be passed during abate- ment, 76. how far the benefit can be obtained in a supplemental suit, 150, 177, 195. on a supplemental bill, 41, 190. in a revived suit, 147. DEEDS AND WRITINGS, may be ordered to be delivered up, during an abatement, 79. DEFENCE, to the original bill, effect of revivor on, 142. to a supplemental bill, 37. to a bill of revivor, 118. DEMURRER, to a supplemental bill, 37. to a bill of revivor, 118, 124. DEPOSIT, on filing a supplemental bill in the nature of a bill of review, 45, n. DEPOSITIONS, taken during abatement, 75, 79, 80. in supplemental suit, see Evidence. INDEX. 299 DEVISE, by a sole plaintiff, 126. by a defendant, 131. by a co-plaintiff, 13G. after decree, 136. DEVISEE, cannot review a decree, 46. See also Devise. DILIGENCE, see Supplemental Matter. DISCOVERY, supplemental bill for further, 17. revivor for further, 84. DISMISSAL OF BILL, of original bill, for want of prosecution, how order for, is affected by abatement, 72. cannot be moved for, during abatement, 73, 74. on the bankruptcy of a sole plaintiff, 174. co-plaintiff, 177. in default of revivor in a given time, 87, 116. of bill of revivor, in default of obtaining order for revivor, 116. but this does not extend to a dismissal of the original bill also, 116. of bill of revivor and supplement, cannot be moved for, in default of obtaining order for revivor, by the defendant to the supplemental part, 117. E. ERRONEOUS STATEMENT, may be corrected by a supplemental bill, 9. but the correction must not change the original issue, 11, 223. ERROR, see Erroneous Statement, and Imperfection. EVIDENCE, in the original suit, when used in the supplemental suit, 40, 41 , 187. in a supplemental suit, 39, 186. in a revived suit, 145. EXCEPTIONS, to answer to bill of revivor, 122. 300 INDEX. EXCOMMUNICATION, does not cause abatement, 67. EXECUTOR, interrogatory whether indebted to testator, 15. of plaintiff, may either revive or commence a new suit, 81. but cannot commence a new suit without paying the costs of the abated suit, 91. revivor by, 98. must charge that he has proved the will, 105. of defendant, revivor against, 98. interrogated as to assets, 105. how far liable to costs, 143. acting by mistake, 154. FEME COVERTE, proceedings by, on death of Imsh&nd pendente lite, 1G8. whether liable to the former costs, 168. whether bound by the former proceedings, 168. whether bound by her former answer, 169. where a new interest arises in her, 169. death of, pendente lite, 170. FRAUD, decree obtained by, see Decree. GENERAL ORDERS, 1823, Xin.,5. XV., 5, 6, 223. 1833, VIII., 115. X., 116, 119. Appendix, 36, 115. 1841, Aug., VIII., 115. XX.. 115, 119. XLIX., 23, 102. 1842, Oct., III., 37, 118. XVI., 37, 118. INDEX. 30J H. HEARING, of supplemental suit, 41. of revivor suit, 123. HEIR, revivor by or against, 98. necessary party to a suit for revivor by or against a devisee, 131, 135. how far liable to costs, 143. rightful, put in the place of a wrongful, 206. in tail, Ifil, 1G6. HUSBAND, party in right of his wife, death of, 16S. I. IDIOT, plaintifl' becoming, ^e?j(?eM^e lite, 179. IMBECILE, \)\a.iatiS becoming, pendente lite, 179. IMPERFECTIONS, originally inherent in a suit, 2, 4. subsequent to the institution of the suit, 1, 61. altering the parties, 61. not altering the parties, 63, 208. INFANT, co-plaintiff', on attaining twenty-one, may be made defendant by supplemental bill, 20, born, pendente lite, 198. where he is an intermediate tenant in tail, 199. INJUNCTION, how aff"ected by abatement, 73, 91. revivor, 141, perpetual, does not abate, 73. INSOLVENCY, does not cause abatement, 70. assignees in, death of, pendente lite, 155. remosal of, pe7idente lite, 205. 302 INDEX. INSOLVENT, see Insolvency. INTERROGATORIES, in a supplemental suit, 39. in a revived suit, 145. INTERPLEADER, death of plaintiff in a suit of, 170. ISSUE, the original, see Supplemental Matter. JOINT TENANT, death of a, 107, 158. JUDGMENT, may be pronounced during an abatement, 80. revivor of, at law, 153. JURISDICTION, party out of, on coming within, added by supplemental bill, 19. K. KIN, NEXT OF, see Next of Kin. LEAVE OF THE COURT, not necessary for a supplemental bill, 13, 22, 223. unless it is in the nature of a bill of review, 22, 44, 57. LIMITATION OF TIME, for bringing a bill of review, 57. LUNATIC, death of, during reference to the Master, 77, n. death of his coxQm\ttQ&, pendente lite, 154. plaintiff becoming, pendente lite, 179. M. MARRIAGE, of a female plaintiff, causes abatement, 67. secxis, of a female defendant, 68. INDEX. 303 N. NAME OF PLAINTIFF, error in, 26. NE EXEAT REGNO, writ of, may be obtained without supplemental bill, 215. NEXT FRIEND, death oi, pendente life, 155. NEXT OF KIN, found by the Master, added by supplemental bill, 19. NOTICE, of intention to revive, not necessary, 95. in a creditor's suit, of a creditor's intention to take it up after abate- ment, 156. by assignee, of his intention to add himself to the suit, 193. O. ORDER, to dismiss bill, see Dismissal of Bill. obtained during abatement, is irregular, 74. but not a nullity, 75. irregular, may be discharged during abatement, 79. on appeal, may be made during an abatement, 80. for revivor, its effect, 113. when to be moved for, 114. where defendant absconds, 114. refuses to appear, 115. appears, but does not shew cause, 115. shews cause, 118. motion to dismiss, in default of, see Dismissal of Bill. may be obtained by defendant, after decree, on plaintiff's bill of revivor, 117. whether to be served on the opposite solicitors, 118. stop order, 193. ORDERS, GENERAL, see General Orders. ORIGINAL BILL, appearance to, see Appearance. answer to, see Answer. in the nature of a bill of revivor, when necessary, 127. nature of, 127. 304 INDEX. ORIGINAL BILL— conlinued. in the nature of a bill of revivor, form of, 129. parties to, 131. defence to, 131. subsequent proceedings on, 131. in the nature of a supplemental bill, when necessary, 148, 174. nature of, 148. form of, 149. defence to, 150. benefit of former proceedings, how obtained by, 150. parties to, 152. ORIGINAL CASE, see Supplemental Matter. ORIGINAL ISSUE, see Supplemental Matter. ORIGINAL STATEMENTS, how far repeated in supplemental bill, 23, 184. bill of revivor, 102. OUTLAWRY, whether it causes abatement, 68. PAPIST, see Popish Recusancy. PARTIES, omitted in original bill, see Party omitted. to a supplemental bill, 27, 185, 221. to a bill of revivor, 106. to an original bill in the nature of a bill of revivor, 131. to a supplemental bill in the nature of a bill of revivor, 135. to an original bill in the nature of a supplemental bill, 152. PARTNERSHIP ACCOUNTS, see Accounts. PARTY OMITTED, added by amendment, 5. supplemental bill, 18. may bring himself before the Court, 19. PAYMENT OUT OF COURT, may be sometimes made during an abatement, 77. PERPETUATE TESTIMONY, see Testimony. INDEX. 305 PETITION, for leave to file a supplemental bill in the nature of a bill of re- view, 44. for rehearing, 45. for taking partnership accounts, 14. by assignee, for a stop order, 193. PLEA, to a supplemental bill, 37. to a bill of revivor, 118, 224. POPISH RECUSANCY, does not cause abatement, 67. PRIORITY, in reviving a suit, see Revivor. PROCESS, effect of abatement on, 73. of revivor on, 138. cannot be issued during an abatement, 74, for appearance and answer to a supplemental bill, 38.- for answer (when required) to a bill of revivor, 114, 123. PRO CONFESSO, abatement after bill taken, 225. R. RECEIVERSHIP, effect of abatement on, 73. of revivor on, 141. RECTOR, death of a, 148. REHEARING, when allowed, 44. petition for, 45. benefit of, sometimes obtained by a party who has not joined in the petition, 56. RELATOR, death of, 170. RELIEF, additional, prayed by amendment, 5. supplemental bill, 14, 15. cannot be varied by supplemental bill, 22. unless the first relief has become impossible, 218. X 306 INDEX. REPLICATION, to supplemental bill, 39. to bill of revivor, 123. REVIEW, see Decree, and Supplemental Matter. REVIVOR, definition of, 63. nature of, 81. partial, 81. optional to revive or commence a nevy suit, 81, n. for costs, see Costs. for further discovery, 84. to supply an omission in a decree, 85. what party may revive, 85. no priority, 86. whetlier defendant may move to dismiss in default of revivor, see Dismissal of Bill. but he may prevent a new suit until the costs of the abated suit are paid, 93. defendant reviving need not give notice, 9.t. defendant may revive wherever he has an interest, 95. mode of, 96. when the interest devolves by operation of law, 96, 98. when by the act of the party, 96, 126. by simple bill and order, 98. bill of, see Bill of Revivor. and supplement, bill of, see Bill of Revivor and Supple- ment. order for, see Order. shewing cause against, 118. by writ oi scire facias, 100. by supplemental suit and decree, 126. where a sole plaintiff devises, 126. original bill in the nature of a bill of, see Original Bill. where a defendant devises, 131. supplemental bill in the nature of a bill of, see Supple- mental Bill. where a co-plaintiff devises, 136. where the devise is after decree, 136. effects of, 13". on existing proceedings, 137. a limited time allowed for any thing, 137. order by consent, 137, n. INDEX. 307 nEVlYOR— continued. effects of, process, 138. sequestration, 139. receivership, 141. subpoenas to hear judgment, 141. injunctions, 141. defence already put in, 142. appeal, 142. costs, 143, proceedings erroneously had after the abatement, 144. on further proceedings, 145. amendment, 145. interrogatories, 145. decree, &c., 147. the two suits coalesce into one, 115, 14f). RISE OF A NEW INTEREST, 63. S. SCIRE FACIAS, 100. SEQUESTRATION, effect of abatement on, 73. revivor on, 139. SETTLEMENT, on wife and children, death of wife during reference to the Master to approve of, 157. SIGNATURE OF COUNSEL, to supplemental bill, 26. to bill of revivor, 106. SUBPOENA, to appear and answer, in supplemental suit, 36. in revivor suit, 112. to rejoin, in supplemental suit, 39. in revivor suit, 123. to hear judgment, in original suit, how affected by abatement, 73. revivor, 141. 308 INDEX. SVBVCE'SPl— continued. to hear judgment, in supplemental suit, 41. in revivor suit, 125. SUPPLEMENTAL BILL, to remedy imperfections originally inherent, 5. in what stages it will lie, 7, 223. leave of the Court unnecessary, 13, 223. for what purposes it may be filed, see Supplemental Matter. form of, 23. what party may file it, 26. parties to, 27. subpoena upon, 36. defence to, 37. evidence upon, 39. hearing and decree, 41. in the nature of a bill of review, 44. deposit on, 45, n. leave of the Court, 46, 57. filed after petition for rehearing, 46. form of, 58. may be joined with bills of revivor, 60. parties to. 60. subsequent proceedings on, 60. See also Decree, and Supplemental Matter. in the nature of a bill of revivor, 132. where necessary, 132. how different from a bill of revivor and supplement, 133. form of, 133. parties to, 135. to bring forward an assignee, 180. one will not supply a defect in two suits, 183. form of, 184. parties to, 185. evidence upon, 186. decree, 190. may be filed by a defendant after decree, 191. to bring forward a new-born infant, 198. to state new events not altering the parties, 210. for what purposes it maybe filed, see Supplemental Matter. not necessary in order to obtain a ne exeat regno, 215. form of, 221. parties to, 221. INDEX. 309 SUPPLEMENTAL MATTER, existing at the filing of the original bill, 8. must have been unknown at the filing of the original bill, 8. to correct au erroneous statement, 9. changing tlie original issue, is properly an amendment, 11, 223. supporting the original case, 12. to extend the prayer for relief, 14. for discovery, 17. for perpetuating testimony, 17. to add parties, 18. to make an infant co-plaintifF a defendant, 20. to give further directions in aid of a decree, 21. must not seek to change the relief, 22, brought to reverse a decree, 47. must be both relevant and material, 47. whether it may change the issue or not, 48. must have been unknown before publication, 53. diligence in seeking, 53. confession after decree, 54. subsequent to the filing of the original bill, 210. not good, to rectify a bad title, 210. must be material, 212. to the merits and not to the evidence, 213. to obtain awe exeat regno, 215, altei-ation of the subject matter, 21G. increase of the subject matter, 217. to vary the relief prayed, 218. further account of receipts and profits, 219. or of tithes, 220. not good, for altering a decree, 220. TENANT FOR LIFE, death of, 157. TENANT IN COMMON, death of, 107, 158. TENANT IN TAIL, death of, without issue, 159. intermediate, born, 199. TESTIMONY, supplemental bill to perpetuate, 17. 310 INDEX. TITHES, subsequent to the filing of the original bill, account of, 220. TITLE, bad, shewn by original bill, not to be rectified by supidemental bill, 210. TRUSTEES, ' new, of a Charity, appointed ^je«rfe?j/e lite, 183. W. WIDOW, see Feme Coverte. WIFE, see Feme Coverte. M'illiam Stevens, rriiittr, L'ell Vaiii, Tiniple B«r. LAW BOOKS PUBLISHED BY Y. & R. STEVENS & G. S. NORTON, axd S. SWEET. THE JURIST, Jn imperial 8vo., price l.i., jntblis/ied everi/ Saturda;/, and forwarded to all parts of the country and the colo/ile.s, postage free. 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