A Treatise On Proceedings in Equity by Way of Supplement and Revivor by George Towry White (1843) Pgs. 310

Orr gin aI fro m
U N IV E R S IT Y 0 F C A U F OR N III.
1843.
Di gitf zed by
IN T E R N E T A R C H IV E
STEVENS & NORTON, BELL YARD; AND S. SWEET, CHANCERY LANE,
I La1tl lSllJ lI t~tUtt'~ &lBulllfguer~ ;
AND A. MI LLI KEN, GRAFTON STREET, DUBLI N.
LONDON:
BY GEORGE TOWRY WHI TE, ESQ.
't I
OF LI NCOLN'S-I NN, BARRI STER-AT-LAW.
WI TH AN APPENDI X OF PRECEDENTS
~uppltmettt an)) 3atbibor.
BY WAY OF
PROCEEDI NGS IN EQUI TY,
ON
TREATISE
A
T T
P D G T

uppement an ebbon
T PP D P D T .
G G T T .
ncon s-nn barrster-at-aw.
D :
T T D D . T
D . M G T T T D .
1 43.
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Original from
U N I V E R 5 1 T Y aF C A L I F OR N I I I .
Digitized by
I N T E R N E T A R C H I V E I
T H E 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 within
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 R edesdale 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 in\ er-
fections before the reader in the fir t instance, and
thence deducing the measure provided for their
A2
PREFACE.
P .
The sub ect o ths treatse has appeared to the
author to deser e a more detaed notce than t has
htherto rece ed. ccup ng a porton on o works
whch embrace the whoe ed o ut Peadngs or
Practce t has been necessar crcumscrbed thn
mts too narrow to admt o much dscusson.
de otng a oume to ts e cus e consderaton and
sub ectng t to a more strct ana ss than t has
as et undergone the author has thought that ts
prncpes ma be better de eoped than the ha e
htherto been and that much o the obscurt o
whch ord edesdae compans ma be not ds-
persed at east put n tran or dsperson b others.
th ths ew the author has departed rom the
method whch has been adopted n ormer treatses
that o rst descrbng the bs n use and then
proceedng to n ure to what crcumstances the are
appcabe and has pre erred brngng the mner-
ectons be ore the reader n the rst nstance and
thence deducng the measures pro ded or ter
2
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Origin I from
U N IV E R S IT Y OF C A L IF OR N IA
DI gItIzed by
18, OlcZSquare, Lincoln's Inn,
1st July, 1843.
cure. In other words, whilst hitherto Supplemental
Bills and Bills of Reviv or have been taken as the
data, and their objects as the qucesita, 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.
w.u, 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. Usborne, (Reg. Lib. 1827,
B. fo1. 2249,) made to suit the petition and bill which
precede and follow it. With this exception the
Orders and Decrees are genuine.
iv PREFACE.
P .
cure. n other words whst htherto uppementa
s and s o e or ha e been taken as the
data and ther ob ects as the uc sta the present
author re ersng the probem has treated De ect and
batement as the matter g en and ther respect e
remedes as the ueston to be determned.
th respect to the precedents o s and Pet-
tons g en n the ppend the author thnks t
proper to state that n a ew nstances where he has
been unabe to meet wth a precedent whch suted
hs purpose he has composed a cttous orm out o
the materas wthn hs reach. Ths s aso the case
wth the rder o. . whch s an adaptaton o
the rder n Partrdge . shorne eg. b. 1 27
. o. 2249 made to sut the petton and b whch
precede and oow t. th ths e cepton the
rders and Decrees are genune.
1 d uare ncon s nn
st u 1 43.
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Original from
U N I V E R S I T V OF C A L I F OR N I A
Di9iti zed by
I N T E R N E T A R C H I V E
I .Imperfections originally inherent i.na 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. 208.
A N A L YS I S.
.
. mper ectons orgna nherent n a sut p. 4.
. mper ectons subse uent to the nsttuton o the sut p. 61
. The e ent aters the partes to the sut p. 65
1. a c death p 65
The nterest sur es the death p. 65
a. De o es b operaton o aw p 9
b. De o es b the act o the part p. 126.
. The nterest ceases wth the death p 14 .
2. changes o nterest nter os p. 171
. n nterest s assgned p. 171.
. new nterest arses p 19
. n nterest ceases durng e p. 201.
. The e ent does not ater the partes to the sut p. 20 .
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Original from
U N I V E . R S lT V 0 F C A L I F OR N I A
Digiti zed by
I N T E R N E T A R C H I V E .
The nature of the remedy 4
Amendment ib.
Supplemental bill 5
Amendment preferable to supplemental bill 6
In what stages a supplemental bill will lie 7
For what purposes a supplemental bill may be filed 8
The supplemental matter must have been unknown at the
filing of the original bill ib.
To correct an error in the original statements 9
But the correction of the error must not change the original
~sue . 11
To strengthen the original case 12
Leave of the Court unnecessary in either case 13
To extend the prayer for relief 14
Partnership accouuts ib.
The plaintiff cannot, at the hearing, make out an additional
case for additional relief 15
Unless the additional case has been already alluded to ib.
Much less after decree 16
Nor can he, after decree, prosecute a case already made, but
neglected ib.
For discovery 17
CHAP. n.-OF IMPERFECTIONS ORIGINALJ.Y INHERENT IN
THE SUIT.
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. I.-INTRODUCTION.
T A BL E OF C ON T E N T S .
T T T .
P. . ntroducton.
P G
b ect o the work . . . . .-1
hat mper ectons cannot be remeded b amendment . b.
mper ectons subse uent to the ng o the orgna b . b.
mper ectons orgna nherent cannot awa s be remeded
b amendment . . . . .2
bstace rom a change n the mper ecton . . . b.
bstace rom the ad anced stage o the sut . . b.
P. . mper ectons orgna nherent n
T ut.
The nature o the remed
mendment ....
uppementa b . .
mendment pre erabe to suppementa b .
n what stages a suppementa b w e
or what purposes a suppementa b ma be ed
The suppementa matter must ha e been unknown at the
ng o the orgna b
To correct an error n the orgna statements
ut the correcton o the error must not change the orgna
ssue .....
To strengthen the orgna case
ea e o the ourt unnecessar n ether case
To e tend the pra er or ree
Partnershp accounts
The pant cannot at the hearng make out an addtona
case or addtona ree
ness the addtona case has been aread auded to
Much ess a ter decree
or can he a ter decree prosecute a case aread made but
negected .....
or dsco er ....
4
b.
5
6
7
b.
9
11
12
13
14
b.
15
b.
16
b.
17
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Original from
U N I V E R S I T Y O F C A L I F O R N I A
ib.
ib.
43
44
Digitized by
Nature of the remedy for an erroneous decree
Bill of review
Rehearing, and supplemental bill in the nature of a bill of
review
Leave of the Court
CliAP. ilL-OF THE REVERSAL OF DECREES ON SUPPLE-
MENTAL MATTER.
Interrogatories ib.
Whether the new defendant is bound by the former proceed-
ings 41
Hearing and Decree ib.
PAGE
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.
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 tbe 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 in 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
TABLE OF CONTENTS. Vlll
m
T T T .
To perpetuate testmon . .
To add partes . . _
ase o a pant purpose omttng a part .
To make an n ant co-pant a de endant
here a part des be ore appearance to the orgna b
To g e urther drectons a ter decree n ad o the decree
ut the b must not seek to change the ree
orm o the suppementa b
rgna statements
ormer proceedngs
uppementa matter
as or answer to tse
nd sometmes or answer to the orgna b
Pra er
ase o a change o name u the pant
gnature o ounse
hat part ma e the suppementa b
Partes to the suppementa b
rgna co-pant s
rgna de endants
ubpoena ....
De ence . .
b ecton b moton rreguar
Peas and demurrers
nswer .
Process to compe answer
epcaton .
dence
nterrogatores .
hether the new de endant s bound b the ormer proceed
ngs
earng and Decree
p ge
17
1
19
20
21
b.
22
23
b
24
25
b.
b.
b.
26
b.
b.
27
b.
2
36
37
b.
b.
b.
3
39
b.
b.
41
b.
P. . the e ersa o Decrees on uppe-
menta Matter.
ature o the remed or an erroneous decree . . 43
o re ew . . . . . 44
ehearng and suppementa b n the nature o a b o
re ew . . . . . b.
ea e o the ourt . . . . . b.
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Original from
U N I V E R S I T Y OF C A L I F OR N I A
Digitized by
61
ib.
62
ib.
63
ib.
ib.
ib.
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
CHAP. IV.-OF IMPERFECTIONS SUBSEQUENT TO THE INSTI-
TUTION OF THE SUIT.
PAGE
Affidavit 44
Respective prayers of the. petition and supplemental-bill 45.
Conditions' of the supplemental bill 47
The new. matter must be both relevant and material ib.
Whether the new matter may change the issue or not 48
The new matter must have been unknown before publica-
tion 53
Due diligence ib.
Confession after decree 54
Decree obtained by fraud ib.
The decree must be first performed 55
Exceptions ib,
A party who has not joined in the petition may sometimes
have the benefit of it 56
The decree must be impeached in the Court in which it was
made ib.
Leave to bring the bill is discretionary 57
Bill of review is good after affirmation of the decree in the
House of Lords ib.
Review of a review is good ib.
Limitation of time for bringing the review ib.
Form of the bill 58
States the former proceedings and the decree ib.
And the supplemental matter 59
And the discovery ib.
And the leave of the Court ib.
Prayer 60
May be joined with bills of revivor or supplement ib.
Parties ib.
Subsequent proceedings ib.
TABLE OF CONTENTS. IX
T T T .
da t . . .
espect e pra ers o the petton and suppementa-b
ondtons o the suppementa b
The new matter must be both ree ant and matera
hether the new matter ma change the ssue or not
The new matter must ha e been unknown be ore pubca
ton . . .
Due dgence ...
on esson a ter decree
Decree obtaned b raud
The decree must be rst per ormed
ceptons . .
part who has not oned n the petton ma sometmes
ha e the bene t o t .
The decree must be mpeached n the ourt n whch t was
made . .
ea e to brng the b s dscretonar
o re ew s good a ter a rmaton o the decree n the
ouse o ords
e ew o a re ew s good
mtaton o tme or brngng the re ew
orm o the b
tates the ormer proceedngs and the decree
nd the suppementa matter
nd the dsco er
nd the ea e o the ourt .
Pra er . .
Ma be oned wth bs o re or or suppement
Partes . .
ubse uent proceedngs
P G
44
45.
47
b.
4
53
b.
54
b.
55
b.
56
b.
57
b.
b.
b.
5
b.
59
b.
b.
60
b.
b.
b.
P. . mper ectons ubse uent to the nst-
T T T uT.
The arous sorts o mper ectons subse uent
here the e ent causes a change n the partes
death o a part ...
here the nterest sur es the death .
here the nterest des wth the part
hanges o nterest nter os .
here the e ent causes no change n the partes
D son o the sub ect
61
b.
62
b.
63
b.
b.
b.
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82
81
76
ib.
77
ib.
79
ib.
ib.
ib.
ib.
80
ib.
Original from
Digiti zed by
Nature of revivor
For what purposes asuit may berevived
CHAP. VI.-OF REVIVOR.
its occurrence
Partial abatement
Exceptions to the rule
Payment of money out of Court
Delivery of deeds and writings
Conduct (Ifthe cause
Enrolment of decree
Dischargeof irregular order
Depositions
J udgment
Order on appeal
PAGE
Nature of abatement 65
May betotal or partial ib,
Cannot occur in a creditors' suit where there are morethan
oneplaintiff ib,
Unless they suein respect of their several demands, or in dif-
ferent capacities 66
What events causeabatement, 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 thecaseof an alien ib.
Bankruptcy and Insolvency ib.
Effects of abatement 72
J . On existing proceedings ib,
Order to dismissbill ib.
Process, injunctions, &c. 73
A perpetual injunction does not abate ib.
II. On further proceedings ib,
Order in thecause ib.
Process of contempt 74
Cross bill 75
Depositions ib.
Passing adecree ib.
The irregular proceeding must bequestioned at the time of
CHAP. V.-OF ABATEMENT.
TABLE OF CONTENTS. x
T T T .
P. . batement.
P G
ature o abatement . . . . .65
Ma be tota or parta . . . . b.
annot occur n a credtors sut where there are more than
one pant . . . . . b.
ness the sue n respect o ther se era demands or n d -
erent capactes . . . . . 66
hat e ents cause abatement and the contrar . . b.
communcaton and popsh recusanc no onger cause a
c death . . . . . 67
Death . . . . . . b.
Marrage o a emae . . . . . b.
utawr . . . . .6
ttander . . . . . . 70
ar n the case o an aen . . . . b.
ankruptc and nso enc . . . . b.
ects o abatement . . . . .72
. n e stng proceedngs . . . . b.
rder to dsmss b . . . b.
Process n unctons c. . . . . 73
er e wa/ n uncton does not abate . . . b.
. n urther proceedngs . . . . b.
rder n the cause . . . . . b.
Process o contempt . . . . . 74
rossb . . . . .75
Depostons . . . . . . b.
Passng a decree . . . . . b.
The rreguar proceedng must be uestoned at the tme o
ts occurrence . . . . . 76
Parta abatement . . . . . b.
ceptons to the rue . . . . . 77
Pa ment o mone out o ourt . . . b.
De er o deeds and wrtngs . . . . 79
onduct o the cause . . . . b.
nroment o decree . . . . . b.
Dscharge o rreguar order . . . . b.
Depostons . . . . . . b.
udgment . . . . 0
rder on appea . . . . . b.
P. . e or.
ature o re or . . . . . 1
or what purposes a sut ma be re ed . . . 2
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Original from
Digiti zed by
Nature of the process 98
One bill of revivor in several suits ib.
Bill of revivor and supplement 99
Where adefendant dies before appearance to the original bill 100
Revivor by scirefacias 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 111
Of a co-plaintiff ib.
CHAP. VII.-OF REVIVOR BY SIMPLE BILL AND ORDER.
PAGE
Not for costs 82
Unless they have been taxed 83
Or left untaxed by special agreement ib.
Or where they are to be paid out of a particular fund 84
For further discovery ib.
To supply an omission in a decree 85
What party may revive a suit ib.
Before decree ib.
There is no priority 86
Whether a defendant may move for dismissal in default of
revivor 87
After decree . 93
A defendant need not give notice of his intention to revive. 94
A defendant may revive wherever he has an interest 95
Mode of revivor 96
Where the interest devolves by the operation of law ib.
Where the interest devolves by the act of the deceased ib.
TABLE OF CONTENTS. Xl
T T T .

ot or costs . .
ness the ha e been ta ed
r e t unta ed b speca agreement
r where the are to be pad out o a partcuar und
or urther dsco er ....
To supp an omsson n a decree
hat part ma re e a sut
e ore decree . . .
There s no prort ....
hether a de endant ma mo e or dsmssa n de aut
re or ....
ter decree .....
de endant need not g e notce o hs ntenton to re e
de endant ma re e where er he has an nterest
Mode o re or .....
here the nterest de o es b the operaton o aw
here the nterest de o es b the act o the deceased
o
P G
2
3
b.
4
b.
5
b.
b.
6
7
93
94
95
96
b.
b.
P. . e or b mpe and rder.
ature o the process . . . .9
ne b o re or n se era suts . . . b.
o re or and suppement .99
here a de endant des be ore appearance to the orgna b 100
e or b scre acas . . . b.
batement b marrage . . . .102
orm o the b o re or . . . . . b.
rgna statements . . . . b.
ubse uent proceedngs . . 104
Pra er . . . . . . b.
mendments o the orgna case . . . b.
n e ecutor re ng must charge that he has pro ed the
w . . . . . .105
o re or aganst an e ecutor ma n ure as to assets . b.
here the b o re or cas or an answer to the orgna
b . . . . . .106
b o re or a ter decree must not contro ert the decree b.
gnature . . . . . . b.
Partes . . . . . . b.
rgna co-pant s . . . . . b.
rgna de endants . . . .110
Death o soe pant . . ..
a co-pant . . . . . b.
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Original 1rom
[)I qltl~d by
I N T E R t~E T A R C H I V E
Nature of the process 126
L Where a sole plaintiff devises ib.
Original bill in the nature of a bill of revivor 127
Form of the bill 129
Parties 131
Defence ib.
Subsequent proceedings ib.
II. Where a defendant devises ib.
Supplemental bill in the nature of a bill of revivor 132
Where a defendant devises before appearance to the original
bill 133
Form of the bill ib,
Amendment of the original case 134
123
ib.
ib.
ib.
125
ib.
122
119
117
118
ib.
116
ib.
ib.
113
114
115
ib.
112
CHAP. VIIL-OF REVIVOR BY S U PPL E ME N T A L S U I T
AND DE C R E E .
Revivor by a defendant after decree
The bill of revivor need not add an entirely new party, how-
ever necessary
Subpoena
Order for revivor
L 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
PA GE
Of a defendant III
..
xu TABLE OF CONTENTS.

T T T
a de endant ....
e or b a de endant a ter decree
The b o re or need not add an entre new part how
e er necessar . . .
ubpoena . . . .
rder or re or ....
. here the de endant absconds
. here the de endant re uses to enter an appearance
. here the de endant appears but does not shew cause
The de endant ma mo e to dsmss the b o re or the
order to re e s not obtaned . . . .
ter decree a de endant ma re e on the pant s b o
re or ....
. here the de endant shews cause
Mode o shewng cause aganst re or
ause ma be shewn a ter the order or re or has been ob
taned ....
n answer to a b o re or must be con ned to the sub ect
o the b o re or
ceptons to the answer
here the b o re or cas or an answer to the orgna
b .....
Process ....
epcaton .....
earng . . .
ubpoenas to hear udgment
P G
111
112
b.
b.
113
114
115
b.
116
117
11
b.
119
b.
122
123
b.
b.
b.
125
P. . e or b uppementa ut
D Decree.
ature o the process ....
. here a soe pant de ses
rgna b n the nature o a b o re or
orm o the b ....
Partes ....
De ence . . . . .
ubse uent proceedngs
. here a de endant de ses
uppementa b n the nature o a b o re or
here a de endant de ses be ore appearance to the orgna
b .....
orm o the b
mendment o the orgna case
126
b.
127
129
131
b.
b.
b.
132
133
b.
134
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U N I V E R S I T Y a F C A L I F O R N I I I .
Digiti zed by
1-18
ib,
149
150
1 5 2
1 5 3
ib.
1 5 4
ib.
1 [ >5
ib.
Death of a corporation sole
O riginal bill in the nature of a supplemental bill
F orm of the bill
Benefit of former proceedings
Parties
Exceptions to the rule
Administrator de bonis non
Executor acting by mistake
Committee of lunatic
N ext friend
Assignees of bankrupt or insolvent debtor
CHAP. X.-O F THE CESSATIO N O F IN TER EST UPO N THE
DEATH O F A PAR TY.
Inj unctions 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. O n further proceedings 145
Amendment ib.
Interrogatories ib.
Decree &c. 147
Any party may prosecute the revived suit after decree ib.
QU(E1-e whether the revived suit must be set down for hearing
because a specific direction in the original decree has not
been complied with ib.
137
ib.
ib.
138
1 3 9
1 41
ib.
Effects of revi VO l' on the original suit.
I. O n exi ting proceedings
A limited time allowed for any thing
Process of contempt
Sequestration
R eceivership appointed on process
Subprenas to hear judgment
CHAP. IX.-O F THE R EVIVED SUIT.
PAGE
135
136
ib.
Parties
Ill. "\here a co-plaintiff devises
IV. Where the devise is after decree
Xlll TABLE O F CO N TEN TS.
T T T .

Partes
. here a co-pant de ses .
. ere te de se s a ter decree
P G
135
13
b.
P. . the e ed ut.
ects o re or on the orgna sut . . . 137
. n e stng proceedngs . . . . b.
mted tme aowed or an thng . . . b.
Process o contempt . . . . . 13
e uestraton . . . . .139
ece ershp apponted on process . . .141
ubpoenas to hear udgment . . . b.
n unctons . . . . . . b.
de ence aread put n . . . .142
n appea . . . . . . b.
osts o the orgna sut .... 143
Proceedngs erroneous had a ter the abatement but be ore
the re or . . . . . 144
. n urther proceedngs .... 145
mendment . . . . . b.
nterrogatores . . . . . b.
Decree c. . . . . 147
n part ma prosecute the re ed sut a ter decree . b.
uc re whether the re ed sut must be set down or hearng
because a spec c drecton n the orgna decree has not
been comped wth . . . . . b.
P. . the essaton o nterest upon the
Death o a Part .
Death o a corporaton soe .... 14
rgna b n the nature o a suppementa b . . b.
orm o the b ..... 149
ene t o ormer proceedngs . . . . 150
Partes ... . 152
ceptons to the rue . . . . . 153
dmnstrator de bons non . . . b.
ecutor actng b mstake . ... 154
ommttee o unatc . . . . . b.
e t rend . . . . 155
ssgnees o bankrupt or nso ent debtor . . . b.
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Original from
Digitized by
Effects of assignment 171
1. Where the assignment puts an end to the whole suit, as a total
assignment by a soleplaintiff 173
The assigneefiles an original bill in the nature of a supple-
mental bill 174
Motion bya defendant to dismiss for want of prosecution,
where asoleplaintiff becomes bankrupt ib.
Howfar the benefit of a decreeinthe first suit is obtained in
thesecond suit 177
The assignee must shew that the first decree was a propel'
one ib.
Where aplaintiff becomeslunatic, idiot, or imbecile 179
II. Where the assignment causes a defect only, and the plaintiff
wishesto remedy it byadding the assignee 180
Where the assignment is questionable ib.
A plaintiff becoming bankrupt may proceed with his ownsuit 181
Partial assignment by a soleplaintiff ib.
Assignment by a co-plaintiff ib.
Assignment by adefendant 182
Where adefendant becomes bankrupt, the plaintiff may go in
under the bankruptcy ib.
Where a defendant assignsbeforeappearance ib.
CHAP. XL-OF ASSIGNMENT OFINTEREST.
PAGE
Sole plaintiff in a creditors' suit, when his representative
declines to proceed with it onhis death 155
Wife and children, after reference to the Master to approve
of asettlement 157
Death of a tenant for life ib.
The bill must shewthat theinterest wasdeterminable 158
Death of afirst tenant in tail without issue 159
-Caseof Lloyd v. Jobnes 162
Consideration of Lord Eldon's judgment ib.
The second tenant in tail proceeds or is proceeded against by
asimple supplemental bill . 167
And may appeal against a decree ib,
Death of ahusband party in right of his wife 168
Where he is aplaintiff ib.
Where heis adefendant 169
The death of the wife causes imperfection 170
Death of a relator, or plaintiff in interpleader ib.
TABLE OF CONTENTS. XIV
T T T .
oe pant n a credtors sut when hs representat e
decnes to proceed wth t on hs death . .155
e and chdren a ter re erence to the Master to appro e
o a settement . . . . . 157
Death o a tenant or e . . . . b.
The b must shew that the nterest was determnabe . 15
Death o a rst tenant n ta wthout ssue . . .159
a.se o o d . ohnes . . . .162
onsderaton o ord don s udgment . . . b.
The second tenant n ta proceeds or s proceeded aganst b
a smpe suppementa b . . . .167
nd ma appea aganst a decree . . . b.
Death o a husband part n rght o hs w e . . 16
here he s a pant . . . . . b.
here he s a de endant . . . .169
The death o the w e causes mper ecton . . .170
Death o a reator or pant n nterpeader . . b.
P. . ssgnment o nterest.
ects o assgnment . . . . . 171
. here the assgnment puts an end to the whoe sut as a tota
assgnment b a soe pant . . .173
The assgnee es an orgna b n the nature o a suppe-
menta b . . . ..174
Moton b a de endant to dsmss or want o prosecuton
where a soe pant becomes bankrupt . . b.
ow ar the bene t o a decree n the rst sut s obtaned n
the second sut . . . . . 177
The assgnee must shew that the rst decree was a proper
one . . . . . . b.
here a pant becomes unatc dot or mbece . 179
. here the assgnment causes a de ect on and the pant
wshes to remed t b addng the assgnee . .1 0
here the assgnment s uestonabe . . . b.
pant becomng bankrupt ma proceed wth hs own sut 1 1
Parta assgnment b a soe pant . . . b.
ssgnment b a co-pant . . . . b.
ssgnment b a de endant . . . .1 2
here a de endant becomes bank upt the pant ma go n
under the bankruptc . . . . b.
here a de endant assgns be ore appearance . . b.
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Digitized by
Nature of the remedy 208
Amendment ib.
Supplemental bill 210
Nature of the supplemental matter ib.
Not good to support a bad title ib.
The new event must be material 212
I tmust be material to the merits and not to the evidence 213
CHAP. XIV.-OF EVENTSWHICH DONOTALTERTHE PARTIES.
201
204
ib.
205
ib.
206
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
CHAP. XIII.-OF THE CESSATION OF AN INTEREST DURING
LIFE.
Nature of the remedy 198
Case of an intermediate tenant in tail coming into esse 199
CHAP. XII.-OF THE RISE OF A NEW INTEREST.
PAGE
Case of new trustees of a Charity appointed in the place of
former trustees defendants 183
One supplemental bill will not supply a defect in more than
one suit ib.
Form of the supplemental bill 184
Parties 185
Evidence 186
How far the assignee is bound by the evidence 187
Decree &c. 190
A defendant may bring forward the assignee, after decree 191
The assignee comes in pro bono et malo 192
III. Where the assignee adds himself to the suit, on the plaintiff's
neglecting to do so ib.
He may sometimes come in without filing any bill 193
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
xv T ABLE OF CONTENTS.
T T T .
P G
ase o new trustees o a hart apponted n the pace o
ormer trustees de endants . . go
ne suppementa b w not supp a de ect n more than
one sut . . _
orm o the suppementa b . . - .
Partes . . .
dence . . .
ow ar the assgnee s bound b the e dence
Decree c .
de endant ma brng orward the assgnee a ter decree
The assgnee comes n pro bono et mao
. here the assgnee adds hmse to the sut on the pant
negectng to do so .
e ma sometmes come n wthout ng an b
therwse he es a new b a ter g ng notce to the pant b.
ow ar the assgnee gets the bene t o the ormer decree 195
b.
1 4
1 5
1 6
1 7
190
191
192
b.
193
P. . the se o a ew nterest.
ature o the remed . . . _ og
ase o an ntermedate tenant n ta comng nto esse . 199
P. . the essato o an nterest durng
e.
ature o the new proceedngs
ceptons to the genera rue
dmnstrator durante mnor cetate
dmnstrator pendente te
emo a o assgnees o bankrupts or nso ents
ght u her put n the pace o a wrong u her
201
204
b.
205
b.
206
P. . ents whch do not ater the Partes.
ature o the remed . . _ 20
mendment . . . _ u
uppementa b . . _ 210
ature o the suppementa matter . . b.
ot good to support a bad tte . . . . b.
The new e ent must be matera . . .212
t must be matera to the merts and not to the e dence . 213
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271
220
221
218
215
216
217.
Original from
Digitized by
XIII. Decree for revivor.- Vide Chap. VIII.
J. Supplemental bill to introduce new matter which existed
at the time of filing the original bill.- Vide Chap. I I . 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 before appearance=-
Vide Chap. II. 240
IV. Petition for leave to file a supplemental bill in the nature
of a bill of review.- Vide Chap. III. 245
V. Affidavit in support of the petition.- Vide Chap. III. 250
VI. Order for leave to file the bill.- 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.- Vide 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
XI I. Supplemental bill in the nature of a bill of revivor.- Vide
Chap. VIII. 26~
APPENDIX OF PRECEDENTS.
223
225
ib.
226
Amendment and supplemental bill
Bill of revivor and supplement
Abatement after bill taken pro confesso
Administrator de bonis non
ADDENDA.
219
Supplemental bill not necessary in order to obtain a ne exeat
regn.o
Where the subject matter of the suit has become altered
Where the subject matter of the suit has become augmented
To vary the relief when the former relief prayed has become
impossible
For an account of receipts and profits
. Will not lie to alter a decree already made
Form of the bill, Parties, and Subsequent Proceedings
PAGE
TABLE OF CONTENTS.
.
XVI
T T T .
uppementa b not necessar n order to obtan a ne e eat
regno . . . . . 215
here the sub ect matter o the sut has become atered . 216
he e the sub ect matter o the sut has become augmented 217
To ar the ree when the ormer ree pra ed has become
mpossbe . . . . . 21
or an account o recepts and pro ts . . . 219
not e to ater a decree aread made . . . 220
orm o the b Partes and ubse uent Proceedngs . . 221
DD D .
mendment and suppementa b . . . . 223
o re or and suppement .... 225
batement a ter b taken pro con esso . . . b.
dmnstrator de bons nan .... 226
PP D P D T .
. uppementa b to ntroduce new matter whch e sted
at the tme o ng the orgna b de hap. . 229
. uppementa b aganst new partes who ought to ha e
been made de endants to the orgna b. de
hap. . . . . . . 235
. uppementa b aganst the representat e o a de endant
to the orgna b who had ded e ore appearance
de hap. . . . . . 240
. Petton or ea e to e a suppementa b n the nature
o a b o re ew. e hap. . . . . 245
. da t n support o the petton. de hap. . . 250
. rder or ea e to e the . de hap. . . 251
. Petton or rehearng the cause. de hap. . . 252
. uppementa b n the nature o a b o re ew. de
hap. . . . . . .254
. o re or. e hap. . . . . 25
. rder or re or. de hap. . . . 262
. rgna b n the nature o a b o re or. de
hap. . . . . . 263
uppementa b n the nature o a b o re or. de
hap. . . . . .26
. Decree or re or. de hap. . . . 271
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Original from
DigI t I zed by
b
293 INDEX
PAGE
XIV. Original information in the nature of a supplemental in-
formation against the successor of'aRector defendant.
- Vide Chap. X. 272
. XV. Decree on an original bill in the nature of a supplemental
bill, filed by aremainder-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. 2ig
. XVII. Supplemental bill against the assignees of a bankrupt
defendant.- Vide Chap. XI. 283
XVIII. Decree on a supplemental bill against the assignees of an
insolvent defendant.- Vide Chap. XI. . 287
XIX. Order for leave to apurchaser pendente lite 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
XVl l TABLE OF CONTENTS.
T T T .
P G
. rgna n ormaton n the nature o a suppementa n-
ormaton aganst the successor o a ector de endant.
de hap. . . . . _ 272
. Decree on an orgna b n the nature o a suppementa
b ed b a remander-man on the death o a tenant
or e. de hap. . . . .27
. rgna b n the nature o a suppementa b b the
assgnees o a bankrupt pant . de hap. . . 279
. . uppementa b aganst the assgnees o a bankrupt
de endant. de hap. . . . 2 3
. Decree on a su pementa b aganst the assgnees o an
nso ent de endant. de hap. . . . 2 7
. rder or ea e to a purchaser endente e to attend the
Master n makng n ures under the decree. de
hap. . .... 2
. uppementa b aganst a chd born pendente te.
de hap. . .... 2 9
nde . . . . . . 293
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Onqinal from
U N I V E R S lT V 0 F C A U F O R N I ll.
. 177
. 140
88, 117
C addick v. Masson
C aermarthen v. Hawson
C anham v. Vincent
C.
PAGE
Barfield v. Kelly 220
Barned v. Laing. 215
Barrington v. O 'Brien 53
Barrow v. Hobhouse 183
Beard v. Powis. 79
Beaumont u. Boultbee 5
Bennet v. Lee 47, 57
Bertie v. F alkland . 76
Betagh v. C oncannon 144
Bignall v. A tkins 28
Bingham v. Dawson 54
Binks v. Binks 195
Blake v. F oster 48, 50, 54
Bligh v. Darnley . 140
Blower v. Morretts . 84
Boddy v. Kent 66, 73, 74, 79, 158
Boeve v. Skipwith . . 17
Bolton v. Bolton 116
Bond v. N ewcastle . 37
Booth v. C reswicke 194
Bowyer v. Bright 37
Boyle v. Blake 119
Branch v. Primrose 106
Bray v. Woodran 141
Bromley v. Gregory 177
Brown v. C lark 179
-- v. Higden . 61
--- v. Lee 115
Buckingham v. Sheffield 79
Burdett v. R ockley 140
Burnell v. Wellington 88, 91
Burney v. Morgan 66, 87, 147
Byne v. Potter. 141
Byrne v. Byrne . 212
O i 9itized by
I
Backhouse v. Middleton 75
Bagnall v. Bagnall . 40
Baillie v. J ackson . 41
Bainbridge v. Blair . 155
Baldwin v. Mackown 25
Ball v. Going.. 139
BaD1pton v. Birchall 100
Barbon v. Searle 57
B.
v. F oster
---- v. Pearson
v. Turner
A rmstrong, ex parte 77
A sbee v. Shipley 21, 25
A skew v. Peddle 155, 158
-- v. Townsend 73
A tholl v. Derby. 140
A tt.-Gen. v. Barkham 82, 110, 111
v. Day . 178
___ 'V. F ishmongers' C o. 13,
224
149, 183, 202
33
. 48
PAGE
A bergavenny u, A bergavenny 68
A dams v. Dowding . 214
A damson v. Hall 88,91
A ltree v. Horden . 92
A nderson v. 'Vallis 20, 24
A non. 1 A tk. 88 155
-- 1 A tk. 263 . 71
-- 3 A tk. 691 95
-- 3 A tk. 726 168
--- C ary, 31 205
-- F reem. 31 . 48
--2LawJ .170 .86
--- 12 Mod. 343 55
-- 2P. W. 283 45
--- 1Vern. 351 170
-- 2 Vern. 197 . 168
A.
TA BLE O F C A SES.
T .
P G
berga enn . berga enn . 6
dams . Dowdng
damson . a
tree . orden
nderson . as
non. 1 tk.
1 tk. 263
3 tk. 691
3 tk. 726
Gar 31
reem. 31
2 aw . 170
12 Mod. 343
2 P. . 2 3
1 ern. 351
2 ern. 197 .
rmstrong e parte
sbee . hpe
skew . Pedde
. Townsend
tho . Derb
tt.-Gen. . arkham
. Da
214
91
. 92
20 24
. 155
. 71
. 95
. 16
. 205
. 4
. 6
. 55
. 45
. 170
. 16
. 77
21 25
155 15
. 73
. 140
2 110 111
. 17
. shmongers o. 13
224
. oster 149 1 3 202
. Pearson . . 33
. Turner . . 4
.
ackhouse . Mddeton .
75
agna . agna .
40
ae . ackson .
41
anbrdge . ar .
155
adwn . Mackown
25
a . Gong .
139
ampton . rcha
100
arbon . eare
57
ar ed . e
arned . ang
arrngton . ren
arrow . obhouse
eard . Pows
eaumont . outbee
ennet . ee
erte o. akand .
etagh . oncannon
gna . tkns
ngham . Dawson
nks . nks
ake . oster
gh . Darne
ower . Morretts .
odd . ent 66 73
oe e . kpwth .
oton . oton
ond ewcaste .
ooth . reswcke
ow er . rght
o e . ake
ranch . Prmrose
ra . oodran
rome . Gregor
rown . ark
. gden .
ee
uckngham . he ed
urdett . ocke
urne . engton
urne . Morgan
ne . Potter
rne . rne
P G
. 220
. 215
. 53
. 1 3
. 79
5
47 57
. 76
. 144
. 2
. 54
. 195
4 50 54
. 140
. 4
4 79 15
. 17
. 116
. 37
. 194
. 37
. 119
. 106
. 141
. 177
. 179
. 61
. 115
. 79
. 140
91
66 7 147
. 141
. 212
addck w. Masson . .177
aermarthen . awson . .140
anham . ncent . 117
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Original from
83
.178,179
137,159
147
119,124
46, 60
140
56
187
22,45,60,99
.73,93,95
156
136
187
187
75, 110
167
155
26, 40
46
68
6
117
154
84
.7,30,33,
35, 36, 222
73
Hall v. Smith.
Hamilton v. Houghton
Hampden v. Brewer
Harries v. J ohnson
Harris v. Pollard
Hartwell v. Townsend
Hawkins v. Crook
Hill v. Chapman
Hitchens v. Congreve
Hodson v. BaH
Horwood v. Schmedes
Houlditch v. Donegall
Huet v. Say &Sele
H.
Gregson v. Oswald
Garth v. Crawford
--- v. Ward
Gibbs v. Churton
Gifford v. Hort
Gilchrist v. Renten
Giles v. Giles
Glover v. Portington
Godwin v. Ferrars
Goodwin v. Goodwin
Gordon v. Bertram
Gough v. Latouche
Gould v. Barnes
Greenwood v. Atkinson
G.
Fitton v. Macclesfield
Folland v. Lamotte
Foster v. Deacon
French v. Barber
Fallowes v. 'Williamson, 28, 86, 110,
138, 158
Feary v. Stephenson, 33, 35,30, 1l0,
186
Ferrers v. Cherry 81
Field v. Delaney 15
Finch v. Winchel sea, 65,76,86,95,
157
55,58, 60
117
194
175
PA GE
225
no
169
F .
Egremont v. Cowell
Exton v. Turner
Eyton v. Eyton
DI glti zed by
172, 192
83
58
49
Earles v. Harris
Edgill v. Brown
Edwards v. Carroll
Effingham's case
E.
71
212
80
157
9,27
140
95, 120
156
85
56
21
89, 117
57
143
55
23
33,35
Davidson v. Butler
v. Foley .
Davies v. Davies
--- 11. 'Williams
Delfosse v. Crawshaw
Derby 1). Ancram
Devaynes v. Morris
Dixon v. Wyatt
Dodson v. J uda
Dolan v. Nevill
Dormer v. Fortescue
Dryden v. Walford.
Dunny v. Filmore
Durbanie v. Knight
Durham, Bp. v. Liddell
Dyneby v. Hartley
Dyson v. Morris
D.
PA GE
Carlisle v. Globe 47
Carrington v. Holly 44
Cattell v. Corrall 184,191
Catton v. Carlisle 39
Chambers v. Middleton 116
Chichester v. Hunter 88
Child v. Frederick 71, 128
Chowick 11. Dimes 88, 117
Clapham v. Phillips 79
Clare v. 'Verden 120
-- v. Wordall 127, 128, 130
Clough v. Bond 21, 25, 31
Clunn v. Crofts 178,195
Cockburn v. Raphael 141
Cockburne v. Hussey 40
Codrington v. Houlditch 118
Coke v. Hodges 205
Colclough v. Evans, 12, 13, 14, 224
Cook v. Bolton 79
Cramborne v. Dalmahoy 76
Crawford 1'. Fisher. 218
Crompton v.Wombwell, 7, 13, 14,224
Cropper v. Knapman 14
Croster v. Wister . 101
Crowfoot v. Mander 21, 25
Curtis v. Smallridge 54
TABLE OF CASES.
xx

T .
12
arse . Gobe
arrngton . o
atte . orra .
atton . arse .
hambers . Mddeton
hchester . unter
hd . rederck .
howck . Dmes
apham . Phps
are . erden
. orda
ough . ond
unn . ro ts
ockbnrn . aphae
ockburne . usse
odrngton . oudtch
oke . odges
ocough . ans 12
ook . oton
ramborne . Damaho
raw ord . sher .
rompton -. ombwe 7
ropper . napman
roster . ster .
row oot . Mander
urts . mardge
D.
P G
. 47
. 44
1 4 191
. 39
. 116
.
71 12
117
. 79
. 120
12 130
21 25 31
17 195
141
40
11
205
224
79
70
21
13 14 224
14
101
21 25
. 54
13 14
Da dson . uter
. 71
. 212
Da es . Da es
. 0
. 157
De osse . rawshaw
9 27
Derb . ncram
. 140
De a nes . Morrs
95 120
D on . att
. 156
Dodson . uda
. 5
Doan . e
. 56
Dormer . ortescue
. 21
Dr den . a ord .
9 117
Dunn . more .
. 57
Durbane . nght
. 143
Durham p. . dde
. 55
D neb . arte .
. 23
D son . Morrs
33 35
.
ades . arrs
dg . rown
dwards . arro
ngham s case
gremont . owe
ton . Turner
ton . ton
P G
. 225
. 110
. 169
aowes . amson 2 6 110
13 15
ear . tephenson 33 35 3 110
1 6
errers . herr . . . 1
ed . Deane . .15
nch . nchesea 65 76 6 95
157
tton . Macces ed . 55 5 60
oand r. amotte . .117
oster . Deacon . 194
rench . arber . . .175
172 192
3
. 5
. 49
G.
Garth . raw ord .
. ard
Gbbs . hurton .
G tbrd . ort
Gchrst . eten .
Ges . Ges
Go er . Portngton
Godwn . errars .
Goodwn . Goodwn
Gordon . ertram .
Gough . atouche
Goud . arnes
Greenwood . tknson
Gregson . swad .
.
a r. mth .
amton . oughton
ampden . rewer
arres . ohnson .
arrs . Poard
artwe . Townsend
awkns . rook .
. hapman
tchens . ongre e
odson . a
orwood . chmedes
oudtch . Donega
uet . a ee
. 1 7
. 1 7
75 110
. 167
155
26 40
. 46
. 6
. 6
. 117
. 154
. 4
7 30 33
35 36 222
. 73
3
17 179
137 159
. 147
119 124
46 60
. 140
. 56
. 1 7
45 60 99
73 93 95
. 156
. 136
22
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Original from
213
206
24, 147
47, 53
187
158
153
I I I
120, 122
216
17
4 ,59
55
182
226
9
155
112
142
In
213
132
170
182
49
99
45, 46
82
214
157
212
125
143 O.
119,222
177 O'Connor v. Spaight
19 Oldham v. Eboral
89, 117 Onge v. Truelock
115 Ord v. Noel
66 Ormsby v. Palmer
143 Osborne v. Usher
118 Owen v. Curzon
86 Oxburgh v. Fincham
Nanny v. Totty
Nelson v. Bridges
Newdigate v. Newdigate
Norris v. Le Neve .
N.
M.
PA GE
Llewellyn v. 1ackworth. 37, 45
Lloyd v. J ohnes 159,160, 161,162,
167
-- v. Powis 143
-- v. Russell 30
Loubier v. Cross 45
Lowndes v. Taylor 181
Lowten v. Corp. of Colchester. 83
Ludlow v. Macartney 54
Lyon v. Mercer 154
XXI
Manaton v. Molesworth
Manson v. Burton .
Marten v. Whichelo
Mehrtens v. Andrews
Mendham 11. Robinson
Metcalfe v. Metcalfe
Micklethwaite v. Calverley
Mills v. Fry
Milner v. Harewood
Minshull v. Mohun
Mole v. Smith
Monteith v. Taylor.
Montgomery v. Clarke
Moore v. Elkington
---v.Moore
1:organ v. Scudamore
Morris v. Ellis
Murray v. Elibank
Mutter v. Chauvel
45
] 39
140
.82,83,84
95
69
177
212
17
209
17
182
170
68
84
128,178
84
205
34,36
16,37,221
115, 146
77
83
Digitized by
Lake v. Anstwick
-- v. Mason
Langley v. Fisher
Latham v. Kenrick
Lautour v. Holcombe
Lee e. Lee
-- v. Warner
Leigh v. Thomas
Lewis v. Armstrong
-- v. Bridgman
Livesey v. Livesey
L.
Kemp v. Mackrell
Kent v. Kent
Killigrew v. Killigrew
Kilminster v. Pratt
King v. Tullock
Knight v. Knight
---v. Matthews
---v.Waterford
Knox v. Brown
K.
J ackson v. Rawlins
---- v. Smith
J enour v. J enour
J ohnson v. Northey
v. Peck
J ones v. Bassett
--v. Howell
---v. J ones
--- v. Smith
--- v. Williams
J upp v. Geering
J .
Hughson v. Cookson
Humphreys v. Hollis
----- v. Humphreys
--- v. Incledon
Huntingtower v. Douglas.
------ v. Sherburne
Hyde 'I.'. Donne
-- v. Forster
-- v. Greenhill
PA GE
Huggins v. York Buildings Co. 82,
124
39
77,112
208
105
175
175
TABLE OF CASES.
T .

P G
uggns . ork udngs o. 2
124
. 39
7 112
. 20
. 105
. 175
. 175
de . Donne . .45
. orster . . .139
. Greenh . . .140
ughson . ookson
umphre s . o s
. umphre s
. ncedon .
untngtower Dougas .
. herburne
.
ackson . awns
. mth
enour . enour
ohnson . orthe
- . Peck
ones . assett
r. owe
. ones
. mth
. ams
upp . Geerng
.
emp . Mackre .
ent . ent .
grew . grew
mnster . Pratt
ng . Tu ock
nght . nght .
. Mattews
. ater ord
no . rown
.
ake . nstwck
. Mason
ange . sher
atham . enrck
autour . ocombe
ee . ee
. arner
egh Thomas
ews . rmstrong
. rdgman
ese . ese
. 170
. 6
. 4
12 17
. 4
. 205
34 36
16 37 221
115 146
. 77
. 3
2 3 4
95
69
177
212
17
209
17
1 2
125
143
119 222
177
19
117
115
66
143
11
6
9
P G
ewe n . Mack worth . 37 45
o d . ohnes 159
160 161 162
167
. Pows
. 143
. usse
. 30
ouber . ross
. 45
owndes . Ta or .
. 1 1
owten . orp o ochester . 3
udow . Macartne
. 54
on . Mercer
. 154
M.
Manaton . Moesworth
Manson . urton .
Marten . hcheo
Mehrtens . ndrews
Mendham . obnson
Metca e . Metca e
Mckethwate . a ere
Ms . r .
Mner . arewood
Mnshu . Mohun .
Moe . mth
Monteth . Ta or .
Montgomer . arke
Moore . kngton
. Moore
Morgan . cudamore
Morrs . s
Murra . bank .
Mutter . hau e .
.
ann . Tott
eson . rdges .
ewdgate . ewdgate
orrs . e e e .
.
onnor . paght
dham r. bora
nge Trueock
rd . oe .
rmsb . Pamer
sborne . sher
wen . ur on
bursh . ncham
. 55
. 1 2
. 226
. 9
. 155
. 112
. 142
. 177
. 213
. 132
. 170
. 1 2
. 49
. 99
45 46
. 2
. 214
. 157
. 212
120 122
. 216
. 17
4 59
. 213
. 206
24 147
47 53
. 1 7
. 15
. 153
.
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Original from
120
19
138
101
143
179
46
178
178
139, 140
177
192
Wagstaff v. Bryan .
Waite v. Temple
Wakelyn v. Wathill
Ward v. Lake
Warner v. Armstrong
Wartnaby v. Wartnaby .
Webb v. Webb
Werden v. Gerard .
West v. Skip .
Wharam v. Broughton
Wheeler v. Malins
Whitcomb v. Minchin
W.
Drrunz 'd by
SadIer v. Lovatt 10
Salisbury v. Hatcher 32
Samuda v. Furtado 142
Savil v. Darcy 55
Sayer v. Sayer 82
Sayle v. Graham 38, 123
Sellers v. Dawson. . 71, 73
Semple v. L. &B. Railway Co. 181
--- v. Price 18,31,33
Setcole v. Healy 177
Sharp v. Taylor 215
Shelberry v. Briggs. . 169
Shepherd v. Titley . 179
Sherrington v. Smith 58
S.
Randall v. Mumford . 176 U.
Ranger v. Great Western R. Co. 13
Rees v. Mansell ll4 University ColI. v. Foxcroft . 140
Roberts v. Griffith . IS Upjohn v. Upjohn 152, 15S
v. Kingsly . 53 Usborne v. Baker. 17, 215
Robinson v. Robinson 106, 179
Roundell v. Currer . 77
Russell v. Sharp . 1!J 3 V.
Rutherford v. Miller IS2
Ryland v. Latouche 82 Vendebende v. Levingston . 46
Vigers v. Audley, 36,37,38, U3, 123,
IS4
SO
SO
46
210
193
114,116,143
S4
Thompson v. Took .
Thorpe v. Mattingley
Tirrel v. Moreton
Tonkin v. Lethbridge
Toosey v. Burchell .
Troward v. Bingham
'fucker v. Wilkins .
T.
PAGE
15
SO
75
20
SI
44,45
21,25
93
93
11,27
142
205
9
Simmons v. Gutteridge
Sinclair v. J ames
Smart v. Floyer
Smith v. Effingham
Spencer v. Wray
Standish v. Radley
Stewart v. Nicolls
Stowell, Lady, v. Cole
---, Lord, v. Cole
Strickland v. Strickland
Stuart v. Ancell
Stubbs v. Leigh
Swau v. Swan
R.
Palk v. Clinton
Partridge v. Usborne
Paterson v. Slaughter
Peachy v. Vintner .
Pemberton v. Walford
Penfold v. Penfold
Perry v. Phelips
Peters v. Robinson.
Phelps v. Sproule
Philipps v. Clarke
Philips v. Darbie
Pinkus v. Peters
Pitt v. Arglass
- v. Richmond's creditors
Poole v. Marsh
Porter v. Cox .
Portsmouth v. Effingham
Price v. Keyte
Pritchard v. Draper
----v. Foulkes
PAGE
5
45,50,55
49
76
223
26
46, 59, 60
80
104, 226
114, 1~4
145
219, 222
57
157
119
175
47
60
211
41, 147
114, ns Prnen v. Lunn
XXII TABLE OF CASES.
P.
u
T .
P G
Pak . nton ... 5
Partrdge . sborne 45 50 55
Paterson . aughter . .49
Peach . ntner . . .76
Pemberton . a ord . . 223
Pen od . Pen od ... 26
Perr . Pheps . 46 59 60
Peters . obnson . . . 0
Pheps . proue . 104 226
Phpps . arke . . 114 194
Phps . Darbe . . . 145
Pnkus . Peters . . 219 222
Ptt . rgass . . .57
. chmond s credtors
Pooe . Marsh
Porter . o .
Portsmouth . ngham
Prce . e te
Prtchard . Draper
. oukes
Pruen . unn
mmons . Gutterdge
ncar . ames
mart . o er
mth . ngham
pencer . ra
tandsh . ade .
tewart . cos
towe ad . oe
ord oe
157
119
175
47
60
211
41 147
trckand . trckand
tuart . nce
tubbs . egh
wan . wan

. 15
. 0
. 75
. 20
. 1
44 45
21 25
. 93
. 93
11 27
. 142
. 205
9
T.
Thompson . Took .
Thorpe . Mattnge
Trre . Moreton .
Tonkn . ethbrdge
114 11 : Toose . urche .
Troward . ngham
Tucker . kns .
.
anda . Mum ord . .176
anger . Great estern . o. 13
ees . Manse
. 114
oberts . Gr th .
. 1
. 53
obnson . obnson
106 179
ounde . urrer .
. 77
usse . harp
. 193
uther ord . Mer
. 1 2
and . atouche
. 2
ader . o att . . 10
asbur . atcher . . 32
amuda . urtado . . 142
a . Darc . . .55
a er . a er . . . 2
a e . Graham . . 3 123
eers . Dawson . . 71 73
empe . . . awa o. 1 1
. t . Prce . 1 31 33
etcoe . ea . . .177
harp . Ta or
heberr . rggs .
hepherd . Tte .
herrngton . mth
215
169
179
5
0
0
46
210
193
114 116 143
. 4
.
n erst o. . o cro t . 140
p ohn . p ohn . 152 15
sborne . aker . . 17 215
endebende e ngston . 46
gersw. ude 36 37 3 113 123
1 4
.
agsta w. r an .
ate . Tempe
ake n . ath
ard . ake
. 120
. 19
. 13
. 101
arner . rmstrong
artnab . artnab
ebb . ebb
. 143
. 179
. 46
erden . Gerard .
. 17
est . kp .
haram . rougton
heeer . Mans
. 17
139 140
. 177
htcomb . Mnchn
. 192
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Original from
. 73
4 9 , 5 3
Yeomans v. Kilvington
Young v. Keighly .
Y.
"Woodward v. Woodward
V \T oolley v. Gordon
Wortley v. Birkhead
PA GE
'Woods v. Woods, 24,104,132,134,
135, 145
8, 19
14
. 221
XXlll
PA GE
139
117
4 9
85
9 3
55
16
57
flO
140
7
141
Drgit!zed by
White v. Hayward .
Whitehear v. Hughes
Will an v. Willan
Williams v. Arthur .
--- v. Cooke .
v. Mellish
Wilson v. T odd
---v.Webb
Winter v. Dancie
Witham v. Bland
Wood v. Wood
Wocds v. Creaghe
T ABLE OF CASES.
T .
m
hte . a ward .
htehear . ughes
an . an
ams . rthur
. ooke
. Mesh
son . Todd
. ebb
nter . Dance
tham . and
ood . ood
oods . reaghe
P G
. 139
. 117
. 49
. 5
. 93
. 55
. 16
. 57
. 0
. 140
7
. 141
P G
oods . oods 24 104 132 134
135 145
oodward . oodward 19
ooe . Gordon . . 14
orte . rkhead . .221
.
eomans . ngton
oung . egh .
. 73
49 53
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Oriqinal from
DI gI tI zed by
Page 7, note (i), add" See also Wood v. Wood, 1840, 4Y. & Coll.
E. E. 185."
P. 49, line 15,for" of" read" when."
P. 80, note (i), insert the date, "1634."
P. 89, note (f), col. 1, lines 6, 7,for" have seen" read" shall see."
P. 104, line 12, refer to "Phelps v. Sproule, 1831, 4 Sim. 318."
P. 106, line 19, dele" the."
P. I ll,line 9, refer to " Cave v. Cork, 1843, 2Y. & ColI. C. C.
130."
P. 146, note, add" affirmed, 1843, 7Jurist, 500. See also S. C.,
2Y. &ColI. C. C. 42."
P. 155, note (r), col. 1, line 7,jor "Acts" read" sections."
P. 175, note Cd), add" In Tennant v. Storer, 1843,7 Jurist, 526,
where the plaintiffs became insolvent, Sir J. L. Knight Bruce, V. C.,
dismissed their bill in default &c. with costs j ordering, however, that
110 proceedings should be taken against the plaintiffs, personally, for the
costs."
.--+--
ADDENDA ET CORRIGENDA .
DD D T G D .
Page 7 note / add ee aso ood . ood 1 40 4 . o.
. . 1 5.
P. 49 ne 15 /or o read when.
P. 0 note nsert the date 1634.
P. 9 note / co. 1 nes 6 7 /or ha e seen read sha see.
P. 104 ne 12 re er to Pheps . pro de 1 31 4 m. 31
P. 106 ne 19 dee the.
P. ne 9 re er to a e . ork 1 43 2 . o. . .
130.
P. 146 note add a rmed 1 43 7 urst 500. ee aso .
2 . c : o. . . 42.
P. 155 note r co. 1 ne 7 or cts -ead sectons.
P. 175 note d add n Tennant . torar 1 43 7 urst 526
where the pant s became nso ent r . . nght ruce .
dsmssed ther b n de aut c. wth costs orderng howe er that
no proceedngs shoud be taken aganst the pant s persona or the
costs.
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Original from
Digitized by
THE object of this Treatise is to point out tl e reme- Object of the
_1' l' l' o . . Work.
uies lor sue 1imperfection as may exist or occur I I I ~
the frame of a uit in Equity, and cannot be cor-
rected by Amendment of the Original Bill.
A certain description of imperfections, therefore,
being excl uded from the consideration of thi ' work,
it may be desirable to show more fully to what that
exclusion applies.
Within certain limits of time and of sul ject matter, Amendment.
aplaintiff is allowed to correct an errol' by amendment
of his original bill. The bill so amended speak from
its original date, and the plaintiff 1S thereby put in the
same situation :1S if the error in question had never
existed. From this property, however, of an amended
bill, it necessarily fo110\';'8that that remedy is appli-
cable to tho e 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 subsequent to
filing of original
progress of it, are Incapable of being remedied by bill.
B
INTRODUCTION.
C H A PT E R 1.
&c.
A T REA TIS E~
T T
PT .
T D T .
The ob ect o ths Treatse s to pont out te reme- b ect o the
des or such mper ectons as ma e st or occur n
te rame o a sut n ut and cannot be cor-
-ected b mendment o the rgna .
certan descrpton o mper ectons there ore
beng e cuded rom the consderaton o ts /ork
t ma be desrabe to show more u to what tat
e cuson appes.
thn certan mts o tme and o s ect matter memment
a pant s aowed to correct an error b amendment
o hs orgna b. The b so amended speaks rom
ts orgna date and the pant s thereb put n the
same stuaton as the error n ueston had ne er
e sted. rom ths propert howe er o an amended
b t necessar oows that that remed b app-
cabe to those mper ectons on whch are orgna
nherent n a sut and not to those whch ma arse
n t rom the subse uent course o e ents. or t
woud be man est absurd to aow a document whch
s to bear date as rom a past perod to re er to an
e ent posteror n tme to such date. mper ec- mper ectons
tons there ore whch arse n a sut durng- the
. . . 1 T r 1 ngo orgna
proo-ress or t are ncapabe ot bemg remeded b b.
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Original frcm
Digitized by
(a) In some few instances the introduced into it by amendment.
Court breaks through thisrule, and These will be noticed in a subse-
allows events which occur after quent part of this work.
thefilingof the original bill to be
mcreases.
Obstaclefrom
the advanced
stageof the
suit.
Imperfections
originally in-
herent.
Nor are imperfections originally inherent in the
suit, and which seem to form 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.
Obstaclefrom The first sort of obstacle may occur in various ways,
~chanfget~nthe but it will besufficient to zive a single example. Sup-
Imper ec IOn. '-'
pose that in the original bill a necessary party is
omitted ;-here is an imperfection inherent in the suit
ab 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.
The second sort of obstacle to amendment, arises
from the inconvenience of deranging the suit after a
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
Object of the amendment (a), and fall, consequently, within the pro-
Work. vince of this Treatise.
Introduction. 2
2 ntroducton.
b ect o the amendment a and a conse uent wthn the pro-
nee o ths Treatse.
mper ectons o are mper ectons orgna nherent n the
orgna n- g . r - wch eem to om the natura sub ect o
amendment awa s susceptbe o that remed .
mendment ma become mpossbe rom changes
whch ha e happened reat e to the sub ect o the
mper ecton snce the begnnng o the sut or rom
the progress whch has been made n the sut render-
ng an ateraton n the orgna b ncon enent.
bstace rom The rst sort o obstace ma occur n arous wa s
hn ctra. su cent to g e a snge e ampe. up-
pose that n the orgna b a necessar part s
omtted here s an mper ecton nherent n the sut
ah nto and capabe o beng remeded b amend-
ment. ut suppose that be ore the b s amended
the part omtted des and thereb some other per-
son becomes a necessar part the remed b
amendment s cear no onger a aabe as t woud
be necessar to state n the b an e ent subse uent
to the ng o t whch we ha e seen s nadmssbe.
bstace rom The second sort o obstace to amendment arses
stage o the rom the ncon enence o derangng the sut a ter a
sut certan perod. hen a cause has gone through se e-
ra stages an matera ateraton n the orgna b
on whch a the proceedngs hnge woud ob ous
tend to produce great con uson. The bert there-
ore aowed to a pant o amendng hs b be-
comes more and more crcumscrbed as the sut draws
nearer to ts termnaton and n the same proporton
hs power o usng the remedes treated o n ths work
ncreases.
a n some ew nstances the ntroduced nto t b amendment.
ourt breaks through ths rue and These w be notced n a subse-
aows e ents whch occur a ter uent part o ths work
the ng o the orgna b to be
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Original from
U N I V E R S I T Y OF C . ~L I F OR N I A
Digitize by
B 2
From what has been aid above, our subject will Object of the
naturally divide itself into twoparts; thefirst of which ~
will treat of cases where the suit is imperfect fromthe
beginning; while the. econd will be devoted to those
in which the suit, though originally complete, becomes
imperfect by subsequent events.
3
Introduction.
ntroducton. 3
rom what has been sad abo e our sub ect w b ect o the
natura d de tse nto two 3arts the rst o whch .
w treat o cases where the sut s mper ect rom the
begnnng whe the second w be de oted to those
n whch the sut though orgna compete becomes
mper ect b subse uent e ents.

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Original from
01ginzed by
(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
surplu age only, and does not affect 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 i adefendant, capable of remedy.
WH E N E V E R an error has been committed in the frame
of an original bill, the suit is from the beginning more
or less imperfect. It is obvious that there 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 pr'ayer of his bill is not sufficiently exten-
sive ;-01', lastly, that he has neglected to include in
the suit some one who is a necessary party to it (c).
I t 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 t.he filing of that hi!l.
I t 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 answer, a plaintiff may amend his hill as often
as he 1leases ; 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
OF IMPERFECTIONS ORIGINALLY INHERENT IN
THE SUIT.
CHAPTER II.
4
Amendment.
The nature of
the Remedy.
'-v--'
PT .
MP T G T
T T.
The nature o a error as been commtted n the rame
the eme . or o-na b the sut s rom the beonno- more
or ess mper ect. t s ob ous that tere are arous
sorts o such errors. The pant ma subse uent
dsco er that some act has been ase stated that
some matera act has been atogether omtted
that the pra er o hs b s not su cent e ten-
s e or ast that be has negected to ncude n
the sut some one who s a necessar part to t a .
mendment. t has been aread stated that up to certan perods
o the proceedngs these mper ectons ma wth more
or ess o d cut be remeded b amendment o the
orgna b uness there has been an change n the
sub ect o the mper ecton snce the ng o that n .
t w be necessar there ore be ore we proceed to
consder an other remed to ca to mnd the mts
wthn whch amendment s appcabe.
e earn rom the treatses on ths sub ect that
unt ans er a pant ma amend hs b as o ten
as he peases and that the ea e o the ourt or that
purpose ma be obtaned as o course that a ter an-
swer and be ore repcaton hs rght s restrcted to
a nother aut n a b ma n whch case t s remeded b ds-
be that t ncudes unnecessar par- mssng the b aganst hm or t
tes. ut ths s ether matter o s ta pre udca as where one
surpusage on and does not a ect o se era pant s has no nterest
the e cac o the sut as where n the sut n whch case t s n-
the super uous part s a de endant capabe o remed .
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Original from
Digitized by
once only, except upon the terms specified in the The nature of
Thirteenth Order of 1828 ;-but that after replication ~
no amendment can in general be made, because the
replication has the effect of putting the cause in issue.
I tis true that, in some cases, the Court will allow the
plaintiff to ioitlulrano I ris replication, and then to amend
his original bill; but f01' 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).
I tis 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 new case can-
not be made without first withdrawing the replication.
So new parties may be added by amendment while 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 ceca- Supplemental
sioris, that imperfections in the frame of a suit can bebill.
remedied b) amendment, another sort of remedy is
permitted. This is obtained by filing a new bill, which
refer to the original bill, and states the new matter
necessary to be brought before the Court, and prays
rel ief founded upon such new matter according to the
circumstances of the case, together with the benefit of
(b) Order XV. 1828. (d) Palk v. Clinton, 1806, 12
(c) Beaumont v. Boultbee, 1 00, Ves. 64.
cited 12Ves. G.. L
5 Of Imperfections oTiginally inherent in the Suit.
mper ectons orgna nherent n the ut. 5
once on e cept upon the terms spec ed n te The nature o
Thrteenth rder o 1 2 but that a ter repcaton the emed .
no amendment can n genera be made because the
repcaton has the e ect o puttng the cause n ssue.
t s true that n some cases the ourt w aow the
ant tto wthdraw hs repcaton and the7 to amend
hs orgna b but or ths purpose speca ea e
must be obtaned upon moton wth notce and the
ourt must be sats ed not on that the matter o the
proposed amendment s matera but that t coud
not wth reasonabe dgence ha e been sooner ntro-
duced nto the cause b .
t s true aso that there are some cases n whch
a ter repcaton a b ma be amended wthout wth-
drawng the repcaton. Thus t appears that the
pra er or ree ma be e tended a ter repcaton
the case aread made b the b warrants the pra er
or the addtona ree c athough a neo case can-
not be made wthout rst wthdrawng the repcaton.
o new partes ma be added b amendment rhe a
repcaton s on the e and new a erments ma be
made or the purpose o shewng the necesst o such
new partes pro ded such new a erments do not ar
the case aread made aganst the orgna partes d .
s howe er t s not at a tmes and on a occa- upementa
sons that mper ectons n the rame o a sut can be
remeded b amendment another sort o remed s
permtted. Ths s obtaned b ng a new b whch
re ers to the orgna b and states the new matter
necessar to be brought be ore the ourt and pra s
ee ounded upon such new matter accordng to the
crcumstances o the case together wth the bene t o
. rder . 1 2 . r Pak . nton 1 06 12
c eaumont . outbee es. 64.
cted 12 es. G4.
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Original from
Digitized by
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. I tmight, for instance,
be termed a supplementarp bill.
(f) 1746,3 Atk. 370.
(y) Ld. Red. ed. 4, p. 62.
(e) According to Lord Hard-
wicke, [vide 3 Atk. 217,J this title
more properly belongs to another
sort of bill, tiled for bringing be-
fore the Court matter which has
arisen subsequently to the tiling of
the original bill, and which will be
considered hereafter. The name
has, however, become indiscrimi-
nately applicable to both sorts of
Amendment
preferable to
supplemental
bill.
The nature of the former proceedings in the suit; and, in case the
the Remedy. bi . brinsr f d II hi
"-,----I 0 ject ISto rIng rorwar anew party, ca s upon im
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
supplemental bill (e).
Thus, in Goodwin 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 ageneral 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)." I tis
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
Of Imperfections originally 6
6
m er ectons orgna
The nature o the ormer proceedngs n the sut and n case the
e erne . ob ect s to brng orward a ne part cas upon hm
to answer the orgna b. Ths b beng not an n-
dependent document but a sort o rder attached to
another b and supp ng the de ects n t s caed a
stppeme ta b e .
Thus n Goodw . Goodwn a ter pubcaton
had passed and the cause was set down the pant
attempted to ntroduce the statement o a w b
amendment nto the orgna b. ut at the hear-
ng. ord ardwcke hed that such amendment a ter
pubcaton passed n the cause was rreguar but
ordered the cause to stand o er n order that the
pant mght brng the w be ore the ourt b sup-
pementa b.
s ong as the proceedngs are n such a state as to
admt o amendment o the orgna b that wa o
remed ng an mper ecton s ob ous pre erabe to
ng a suppementa b beng both more smpe and
ess e pens e. s a genera rue there ore t ma be
stated wth ord edesdae that where er the same
end ma be obtaned b amendment the ourt w
not permt a suppementa b to be ed g t s
apprehended howe er that e en the pant mght
under the teenth rder o 1 2 abo e re erred to
obtan ea e to wthdraw hs repcaton and amend
hs orgna b et he s not bound to ask ea e to
mendment
pre erabe to
suppementa
b.
e ccordng to ord ard-
wcke _ de 3 tk. 217 ths tte
more proper beongs to another
sort o b ed or brngng be-
ore the ourt matter whch has
arsen subse uent to the ng o
the orgna b and whch w be
consdered herea ter. The name
has howe er become ndscrm-
nate appcabe to both sorts o
bs though as some error has
arsen rom con oundng the two
together t ma be regretted that
the speces o b under consdera-
ton s not dstngushed b a d -
erent tte. t mght or nstance
be termed a suppementar b.
/ 1/46 3 tk. 370.
d. ed. ed. 4 p. 62.
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Original from
Diqitized by
(i) 1832,5 Sim, 419. (It) Crompton v. Womlnoell,
1831, 4 Sim. 628.
adopt this method of remedying his imperfection, but The nature of
may filea supplemental bill at once, for that purpose, ~
if be prefers it (h).
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.
I t appears then that, before replication, a supple- In what stages
mental bill for correcting an inherent error will not ~i~t;h~e~e~ntal
lie; and that the plaiutiff's 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 original bill may be resorted to, provided that the
7
inherent in the Suit.
nherent n the ut. 7
adopt ths method o remed ng hs mper ecton but The nature o
ma e a suppementa b at once or that purpose k emed .
he pre ers t .
t seems aso that amendment s permtted out o
ts proper pace or one o the purposes or whch we
ha e seen t s permtted ths does not take rom the
pant the rght whch he be ore had o ha ng re-
course to a suppementa b or the same purpose.
Thus n Greenwood . tknson where at the hear-
ng the de endant nssted that a part b whom he
was entted to be rembursed what he the de endant
shoud ha e to pa to the pant was a necessar
part to the sut and the cause was permtted to
stand o er wth bert to the pant to add such
new part b amendment and to ntroduce a erments
shewng hm to be a necessar part the pant
nstead o amendng ed a suppementa b or that
purpose and was hed to be ust ed n so dong.
t appears then that be ore repcaton a suppe- n what stages
menta b or correctng an nherent error w not b uuT
e and that the pant s power o ng such a b
commences a ter repcaton sub ect howe er e en
then to certan condtons as to the ree anc o the
new matter the dgence o the pant n brngng
t orward and the e ects whch t seems ke to
ha e on the end and ob ect o the sut. nd ha ng
once commenced the power seems to contnue to the
ast perod o the sut : thus the ourt w re uent
postpone the hearng o the orgna sut n order to
g e an opportunt o ng such a b and e en
a ter decree ths method o supp ng an omsson n
the o-gna b ma be resorted to pro ded that the
h rompton . ombwe 1 32 5 m. 419.
1 31 4 m. 62 .
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Origin Ifrom
DI ittzed b
(k) A supplemental bill to carry appeal by the defendant from the
a decree into execution, and to add decree. n~oodll;a1'dv. Woodicard,
new parties, has been held to be 1799, Dick. 33.
regularly filed, even pending em
The supple-
mental matter
must have
been unknown
at the filing of
the oriz inal
hill.
The nature of nature of the supplemental matter does not militate
the Remedy. f h di . laid d h f (h)
~ against any 0t e COIl ItlO11Sai own erea ter ~.
For what pur- Even where amendment is no longer possible, it is
poses a Supple. I h . e.i :: . I . h f
mental Bill not a ways t at an imperfection mierent m t e rame
may be filed. of a suit can be remedied by supplemental bill. The
~ period of the suit may he 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 the adoption of
that remedy.
As a general rule, it way be laid down that it is
ssential to the validity of a snpplemen tal bill, that
the plaintiff should have been ignorant of the supple-
mental matter, whatever it may be, at the time of
filing the original bill.
Thus, where a plaintiff filed a hill for a partition of
certain leasehold property, to which he and the cle-,
fendant were entitled in undivided moieties, and the
defendant, who had been inpos ession 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 ; t.he
plaintiff' filed a . upplernental bill, charging that the
defendant had received various sums of mOlley, to a
con iderable amount, during t.he period of his occupa-
tion, for rent; and that he bad wa ted the property r
The bill prayed a further account in resl ect of . uch
mper ectons orgna
The nature o nature o the suppementa matter does not mtate
aganst an o the condtons ad down herea ter k .
or what pur- en ee amendment s no onger possbe t s
menta awa s that an mper ecton nherent n the rame
ma be ed o a sut an be remeded b suppementa b. The
perod o the sut ma be a proper one or such a
remed but st the suppementa matter ma be
mproper to be brought orward ether on account o
ts nature or rom e trnsc crcumstances. e w
proceed then to consder the se era purposes or
whch a suppementa b o the speces n ueston
ma be ed at the same tme pontng out such cr-
cumstances as ha e been hed ata to te adopton o
that remed .
The suppe- s a genera rue t ma be ad down that t s
menta matter . . . -.
must ha e essenta to the adt o a suppementa b that
been unknown g pant shoud ha e been gnorant o the suppe-
at the hng o . o
the orgna menta matter whate er t ma be at the tme o
ng the orgna b.
Thus where a pant ed a b or a partton o
certan easehod propert to whch he and the de-
endant were entted n und ded moetes and the
de endant wo had been n possesson o the whoe
propert camed a en on t or certan mpro ements
made b hm and the ourt ordered an account o
what had been e pended n such mpro ements the
pant ed a suppementa b chargng tat the
de endant had rece ed arous sums o mone to a
consderabe amount durng the perod o hs occupa-
ton or rent and that he had wasted the pro ert
Te b pra ed a urther account n respect o such
k suppementa b to car appea b the de endant rom the
a decree nto e ecuton and to add decree roodward . oodaard
new partes has been hed to be 1799 Dck. 33.
reguar ed e en pendng an
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Original frcm
Diginzed by
(m) Delfos e v. Crawshaw, 134,
3 Dan. Ch. Pro 156.
(1) wan". Swan, 1 19, Price,
51. Vide etiam Mehrtens v.
Andreu:s, 1 39,3 Beav, i2, r r .
matter ; but .a demurrer , for that the supplemental For what pur.
matter must all have arisen and been known to the po esa ~pplc.
, mental BIll
plaintiff, before the time of fil inz the original bill, was may be filed.
allow d by the Court; who observed, that" however ...__~
just it might 1 e that the account should be ext nded
a pl'a ed, this could not b the proper COllI' e for
obtaining, uch end. The plaintiff should either have
am nded his bill on the lefendant's answer coming in,
01 ' at lea t he should have ~qplied to the Court for
leave to amend or to file a supplemental bill, in an
ear-lier stage of the proceeding. Parties could never
be ure, in pos essing a .lecree, if this practice were
allowed in a ca e like the present, where there was
nothing' like surpri e;-(',nd there would be no end of
supplemental Lill (l). '
.\ suppl mental bill may be filed for the purpo'e of To correct an
correctinz an C1'1'or in tlie tatement of the original er:o~in the
original tate-
bill. Thus, ill aca 'en entioncd by Mr. Daniell (r n), where ments.
a bill wa filed on behalf of a great l1UI11 bel' of plain-
tiff intere ted ill :111annuity, to recover the arrears
thereof; and after the call e was at issue, and ",it-
ne se had been examined, it was discovered that one
of the plaintiff, in whose name the bill was exhibited,
had died before the filing of the bill, a upplemental
bill was filed by tlie existing plaintiff and the l'epre-
. ntative of the deceased plaintiff against the defen-
dant', pra ing to have the ame benefit of the pro-
ceedin 's in the original suit, as they would have been
entitled to had the plaintiff, who wa dead, been alive
when the bill" a, filed; and the decree was made in
both uits.
"0where a plaintiff, claiming under a lease, in a
inherent in tile Suit.
nherent n the ut. 9
matters but a denurrer or that the suppementa or what pur-
matter must a a e arsen and been known to the - -
1 - 1- 1 p menta
panttr be ore te tme o ng the orgna b wars ma be ed.
aowed b the ourt wo obser ed that howe er
ust t mght be that the account shoud be e tended
as p-a ed ths coud not be the proper course or
obtanng such end. Te pant shoud ether ha e
amended hs on the de endants answer comng n
or at east he shoud ha e apped to the ourt or
ea e to amend or to e a suppementa b n an
earer stage o the proceedng. Partes coud ne er
be sure n possessng a decree ths practce were
aowed n a case ke the present where there was
nothng ke surprse and there woud be no end o
suppementa bs / .
suppementa b ma be ed or the purpose o To correct an
correctng an error n the statements o the orgna r
. - . . 11 TT T 11 1 orgna state-
bu . 1 us n a case mentoned b Mr. Dane m where meats.
a b was ed on beha o a great number o an-
t s nterested n nn annut to reco er the arrears
thereo and a ter tc cause was at ssue and wt-
nesses had been e amned t was dsco ered that one
o the pant s n whose name the b was e hbted
ad ded be ore the hng o the b a suppementa
b was ed b the e stng pant s and the repre-
sentat e o the deceased pant aganst the de en-
dants pra ng to ha e the same bene t o the pro-
ceedngs n the orgna sut as the woud ha e been
entted to had the pant who was dead been a e
when the b was ed and the decree Mas made n
both suts.
o where a pant camng under a ease n a
wan . wan 1 19 Prce m De/osse . rawshaw 1634
51 . de etum Mehrtcns . 3 Dan. h. Pr. 15G.
ndrc 1 39 3 ea . 72 77.
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Original f r
Digitized b
For what pur- bill for specific performance of a covenant for renewal
~oes::a~~~frple- of the lease, by mistake set forth a supposed defect in
may be filed. his title under the lease, and prayed that the lease
"-v-J 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
urprise on the defendant, who being thelandlord, and
haying a counterpart of the lease, had the samemeans
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 onthe 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 (n).
And where, inasuit bycertain legatees, the original
bill stated, "that although all the other legacies had
been duly paid, yet no part of the legacies to the
plaintiffs had been paid;" and afterwards a new co-
plaintiff 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-plaintiff had
not been paid ;"and a demurrer was filed, for that the
upplemental bill contradicted the original bill, and
that, therefore, the new co-plaintiff was an improper
party; Sir J. L. Knjght Bruce, V. C., said, that he
wa not quite satisfied that the statement intheoriginal
bill, a quoted in the supplemental bill, did amount to
(n) Sadler' v. Lovatt, 1828, 1Moll. 162.
Of Imperfections m'iginally
10
0 mper ectons orgna
or what pur- b or spec c per ormance o a co enant or renewa
menta the ease b mstake set orth a supposed de ect n
ma be ed hs tte under the ease and pra ed that the ease
mght be decared ad and ust as the b was
about to be dsmssed wth costs t was dsco ered
that the supposed de ect dd not e st t was hed that
e dence o the true state o the tte mght be re-
ce ed athough not n ssue and e en contrar to the
statements n the orgna b because there was no
surprse on the de endant who beng the andord and
ha ng a counterpart o the ease had the same means
o knowedge o the pant s tte under t as the
pant hmse had. The b there ore was not
dsmssed wthout pre udce to a new b but ea e
was g en to e a suppementa b to pra spec c
per ormance on the true tte such ree beng wthn
the genera pra er and the ourt ha ng be ore t the
whoe nstrument whch contaned the supposed de-
ect and on whch the ree was grounded w .
nd where n a sut b certan egatees the orgna
b stated that athough a the other egaces had
been du pad et no part o the egaces to the
pant :s had been pad and a terwards a new co-
pant t was added b suppementa b re errng to
the abo e statement and shewng b wa o suppe-
ment that whether or not the egaces other than
the egaces g en to the orgna pant s had been
pad et the egac g en to the new co-pant had
not been pad and a demurrer was ed or that the
suppementa b contradcted the orgna b and
that there ore the new co-pant was an mproper
part r . . nght ruce . sad that he
was not ute sats ed that the statement n the orgna
b as uoted n the suppementa b dd amount to
h ader . o att 1 2 1 Mo. 162.
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Original from
U N I V E R S I T Y 0 F C A U F O R N I A
Digitized by
(0) Strickland v. Strickland, 1842, 7 J urist, 32.
an allegation that a11the legacie (excepting a certain F or what pur-
number, not including the new co-plaintiff' ... ) had been ~o:::a~ ~~ftple-
paid; but if it did, he was not aware that he wa may be filed.
opposing either principle or authority, if he held, in '-..-'
the ca e of a legatees' bill, where the legacie affected
real estate, and where the cause" as 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, a~to the
mere satisfaction of debts (0).
If, however, the correction of the error in the But the correc-
original bill is such as if stated would change the tion of the
" error must not
i ue rai eel by the original bill, and make a new case, ch~~ge t~e
. I ki b 11d l l original issue,
It caunot, proper y pea mg, e ca e supp ementa to
the original bill, because it is, on the contrary, subuer-
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 uch 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 agreemen t had been entereel
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 au-
wer denied the agent s authority to enter into the
agreement. After the cause wa at i sue the plain-
tiffs disco, ered, and stated by supplemental bill, that
the letter wa not written by the defendant, but by
his wife acting on his behalf; and prayed for a di 'co-
very of certain other letter written by or in the name
of the defendant, which they alleged would pro\'e
that the defendant had adopted the agreement. But
I I inherent in the Suit.
nherent n the ut. 11
an aegaton tut a the egaces e ceptng a certan or what pur-
number not ncudng the new co-pant s had been poses a uppe-
P T 1 menta
pad but t dd e was not aware that he was ma be ed.
opposng ether prncpe or authort he hed n
the case o a egatees b where the egaces a ected
rea estate and where the cause was drected to stand
o er to add as partes egatees who were absent rom
the record as t was orgna consttuted that the
pant s were entted b suppementa b to correct
an erroneous statement n the orgna b as to the
mere sats acton o debts o .
howe er the correcton o the error n the ut the correc
orgna b s such as stated woud change the
. .. . error must not
ssue rased b the orgna b and make a new case change the
t cannot proper speakng be caed su pementa to na ssue.
the orgna b because t s on the contrar sub er-
s e o t. t woud there ore n act be no addton
to the orgna matter athough t mght be an amend-
ment o t. ts nature there ore s such as pre ents
ts beng brought orward b suppementa b.
Thus where a b was ed or spec c per ormance
o an agreement b the de endant to se hs nterest
n certan propert whch agreement had been entered
nto b the agent o such de endant under the autho-
rt o a certan etter aeged to ha e been wrtten b
the de endant to the agent the de endant n hs an-
swer dened the agent s authort to enter nto the
agreement. ter the cause was at ssue the pan-
t s dsco ered and stated b suppementa b that
the etter was not wrtten b the de endant but b
hs w e actng on hs beha and pra ed or a dsco-
er o certan other etters wrtten b or n the name
o the de endant whch the aeged woud pro e
that the de endant had adopted the agreement. ut
o trckand . trckand 1 42 7 urst 32.
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Origin 11rom
L llqltlZl d by
(p) Colclough v. Evans, 1831, supplemental bill, eethe Appendix,
4 im. 76 j vide etiam 10 Sim. 239. No. 1.
(q) For a precedent of such a
For what pur- Sir Lancelot Shadwell, V. C., held, on demurrer, that
~~~:af ~NPle- as the object of the supplemental bill was" to change
mHybe filed. completely the issue raised- by the original bill,-ill-
'---..,---/ asmuch as in the original bill it was averred that the
material "letter was written by the defendant, and in
the supplemen tal bill it was averred that the letter
was not 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).
To strengthen But where the object of the supplemental bill was
the original not to change the issue raised by the original bill,
case.
but on the contrary to add supplemental matter
trenqtlieninq the case (q) made by the original bill, the
same learned J udge held, on demurrer, that such new
matte}' 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
1 ayment of tithes, and filed a bill for compensation
ont of the purchase money; and the cause was set
down and publication enlarged; and then the plain-
tiff discovered that one of the vendors was actually a
Ie see 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
Of Imperfections oTiginally ] 2
12
mper ectons orgna
or what pur-
poses a uppe-
menta
n be ed.
To strengthen
the orgna
case.
r anceot hadwe hed on demurrer that
as the ob ect o the suppementa b was to change
compete the ssue rased b the orgna b n-
asmuch as n the orgna b t was a erred that the
matera etter was wrtten b the de endant and n
the suppementa b t was a erred that the etter
was o wrtten b hm there ore t was strct not
suppementa but one whch sought to make a new
and d erent case and was n substance an amend-
ment and that to permt t woud be n act to
permt the pant s to do ndrect what the new
rders ntended shoud not be done e cept upon
speca ea e. s onor there ore aowed the de-
murrer but wth bert to the pant s to make
appcaton under the teenth rder o 1 2 to
wthdraw the repcaton and amend the orgna
b p .
ut where the ob ect o the suppementa b was
not to change the ssue rased b the orgna b
but on the contrar to add suppementa matter
strengthenng the case made b the orgna b the
same earned udge hed on demurrer that such new
matter teas matter or a suppementa b and mght
be brought be ore the ourt b that process.
Thus where the purchaser o an estate aeged to
be tthe- ree dsco ered that t was sub ect to the
pa ment o tthes and ed a or compensaton
out o the urchase mone and te cause was set
down and pubcaton enarged and then the pan-
t dsco ered that one o te endors was actua a
essee o those tthes and ed a suppementa b
statng that act n order to strengthen hs cam to
compensaton r anceot hadwe . hed on
p ocogh . ans 1 31
4 m. 7 de etam 10 m. 239.
or a precedent o such a
suppementa b see the ppend
o. .
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Original from
Digitizedby
land, J anuary, 1843, not yet re-
ported, But His Honor appears to
have remained of the same opinion
on the point, as that given above.
(t) I 3 ,4 My!. &Cr. 1.
( 1 ' ) Crompton v. Womb well,
1831, 4Sim, 628.
(8) Such werethe arguments used
in Ranger v. The Or-eat fVestern
Railway Company, V. C. of Eng-
demurr-er, that the new matter, a it tended to prove For what pur-
h I
'ff" . 1 1 l' f "11 1 posesa upple-
t e P ainti s rIg it to t re re ie orrgma y prayen , mental Bill
was good matter for a supplemental bill (1')' ~
The above cases of Colclough v. Evans and Cromp- Leave of the
ton v. Wombwell have been sometimes quoted as Court unne-
cessary,
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 the latter case it need not (8), 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 chanse tlie 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
matte)' for a supplemental bill.
However, in The A ttorney General v. The Fish- _
mongers' Company (t), where a motion on notice" for
liberty to read. a certain will as _evid.ence 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 miqh: 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 such refu al , said
that "although the circumstances of the above ca es
13
nherent n the ut. 1
demurrer that the new matter as t tended to pro e or what pur-
. poses a uppe-
the pant s rght to the reet orgna pra ed menta
was good matter or a suppementa b . ma be ed.
The abo e cases o ocough . ans and rom - ea e o the
ton . omh e ha e been sometmes uoted as e g r
shewng that new matter e stng at the tme o the
orgna b ma be the sub ect o a suppementa
b whether t seeks to change the ssue rased b
the orgna b or not but that n the ormer case
the ea e o the ourt must be obtaned to e such a
b and that n te atter case t need not .s . t s
submtted howe er that those cases do not warrant
such a concuson or the ormer o them mere
decdes that new matter seekng to change the ssue
s not matter o suppementa b but o amendment
and cannot be brought orward at a uness t can be
brought orward b amendment and the atter
mere decdes that new matter not seekng to change
the ssue but to strengthen the orgna case ma be
matter or a suppementa b.
owe er n The ttorne / Genera . The sh-
mongers ompan t where a moton on notce or
bert to read a certan w as e dence at the
hearng o the cause or ese or bert to amend the
n ormaton or to e a suppementa n ormaton b
ntroducng the sad w and otherwse touchng the
same as counse mght ad se had been re used b the
Master o the os as beng too genera but wth
bert to amend the notce o moton ord otten-
ham . on appea a ter con rmng suc re usa sad
that athough the crcumstances o the abo e cases
r rompton . omb e and anuar 1 43 not et re-
1 31 4 m. 62 . ported. ut s onor appears to
uch were the arguments used ha e remaned o the same opnon
n anger . The Great ea ern on the pont as that g en abo e.
ah a ompan . . o ng- 0 1333 4 M . r. 1.
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Oriqinal t rom
L llqltlzedby
amendment oftheoriginal bill imme-
diately after thefilingof the answer?
(x) Woolley v. Gordon, 1829,
Tam}. 11.
(u) Cropper v. Knapman, i837,
2Y. I I Call. 338. But quaire whe-
ther in thi case the additional re-
lief ought not to have been prayed by
Partnership
accounts.
To extend the
prayer for
relief.
For what pur- of Colclough y. Evans and Crompton v. Wombuiell
poses aSupple- di a: .. I b h
mental Bill were itterent, yet It mig rt not every easy, per aps,
may be filed. to see what line His Honor the Vice Chancellor in-
"-.-J
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 todo so, asin 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.
We have seen that additional relief may be prayed
by amendment of the original bill, after replication,
provided the casealready 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 (u).
I t appears, however, that such accounts may be
directed upon petition, the petitioner paying the costs
of the 1etition, and making the inquiry at his own ex-
pense. "And indeed,"said Sir John Leach,V.C., "pro-
perly speaking, the Ma tel'Sought to take partnership
acconnts under thegeneral order to take accounts (x)."
14 mper ectons orgna
or what pur- o ocough . cns and rompton . ombwe
mw m were d erent et t mght not be er eas perhaps
ma be ed to see what ne s onor the ce hanceor n-
tended to draw. s ordshp howe er dd not on
that occason g e an opnon as to whether ea e
was necessar to e the suppementa n ormaton or
not t beng unnecessar to do so as n ether case the
moton must be dsmssed ea e were necessar
as beng st too genera and ea e were not ne-
cessar as beng unnecessar to be made at a.
To e tend the e ha e seen that addtona ree ma be pra ed
pra er or b amendment o the ors-na b a ter repcaton
ree . . o
pro ded the case aread made warrants such pra er
or addtona ree t appears that the same ob ect
ma be obtaned b suppementa b. ut as has
been aread obser ed the pant must ha e been
gnorant o hs tte to such addtona ree when he
ed hs orgna b n order to be entted to e the
suppementa b.
Thus where a ter a decree aganst e ecutors to ac-
count t was suspected rom the answer o one e e-
cutor that a baance was due rom hm to the testa-
tor s estate n respect o a partnershp between
them a suppementa b was permtted or the pur-
pose o gong nto the partnershp accounts be ore the
Master m .
Partnershp t appears howe er that such accounts ma be
drected upon petton the pettoner pa ng the costs
o the petton and makng the n ur at hs own e -
pense. nd ndeed sad r ohn each . . pro-
per speakng the Masters ought to take partnershp
accounts under the genera order to take accounts .r .
u ropper . napman 1 37 amendment o theorgnabmme-
2 . o. 33 . ut u ere :he- date a ter the ng o the answer
ther n ths case the addtona re- .r ooe . Gordon 1 29
e ought not to ha e been pra ed b Tam. 11.
accounts.
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Original from
Digitized by
(z) Field v, Delaney, 12 , 1
:.\I o11. 1i4.
(y) immons v , Gutteridqe, 1806,
13 es.262.
And where it was merely necessary to inquire whether For what pur-
the "executor was indebted to the testator, without ~oes::a~~~ftPle-
going into new accounts, this being the interrogatory may be filed.
of the Master, and not of the party, was allowed to be .__,_____,
exhibited without supplemental bill (y).
I f, however, the plaintiff has not stated a ca een- Plaintiff can-
titling him to the additional relief under the prayer ~ot at thehear-
mg make out
for general relief; although he may file a supple- an additiona.l
mental bill stating the additional case, and praying ~~~aio;efi~f-
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 upplemental bill. Thus, where a
plaintiff, entitled to an annuity charged on lands with
pel' onal covenants, prayed relief as a specific incum-
brancer only, and not as a general creditor also, and
made no case of personal claim by his bill, that re-
lief "as refused at the hearing; and liberty to amend
or file a supplemental bill for the purpose of obtain-
ing such relief, was also refused (z).
I tseems, however, that if theplaintiff has mentioned Unlessthead-
the additional case, though by wayof inducement only, ~~t;ob~:nc:~~
the Court will at the hearing allow the cau eto stand ready alluded
over for the purpose of bringing forward that addi- to.
tional case in a sub tantive manner, and adding the
parties which it renders necessary. Thus, whereabill,
filed to set aside alease for forgery, alluded by wayof
inducement to a fraud respecting the lease, committed
by certain tru tee not before the Court; and, at the
hearing, an issue was directed to try the forgery, and
afterwards upon the cau ecoming on upon the equity
reserved, the plaintiff abandoned the case of forgery,
and tried to set up the ca e of fraud, the Court aid
15 inherent in the Suit.
nd where t was mere necessar to n ure whether or what pur-
the e ecutor was ndebted to the testator wthout -
gong nto new accounts ths beng the nterrogator ma he ed.
o the Master and not o the part was aowed to be
e hbted wthout suppementa b / .
howe er the pant has not stated a case en- Pant can-
ttng hm to the addtona ree under the p e
or genera ree athough e ma e a suppe- an addtona
menta b statng the addtona case and pra ng
the addtona ree be ore the hearng o the cause
et t appears that the ourt w not at the hearng
aow the cause to stand o er to g e hm an opportu-
nt o ng such suppementa b. Thus where a
pant entted to an annut charged on ands wth
persona co enants ra ed ree as a s Dec c ncum-
brancer on and not as a genera credtor aso and
made no case o persona cam b hs b that re-
e was re used at the hearng and bert to amend
or e a suppementa b or the purpose o obtan-
ng such ree was aso re used c .
t seems howe er that the pant has mentoned ness the ad-
the addtona case though b wa o nducement on hasTeen ar
the ourt w at the hearng aow the cause to stand read auded
o er or the purpose o brngng orward that add-
tona case n a substant e manner and addng the
partes whch t renders necessar . Thus where a b
ed to set asde a ease or orger auded b wa o
nducement to a raud respectng the ease commtted
b certan trustees not be ore the ourt and at the
hearng an ssue was drected to tr the orger and
a terwards upon the cause comng on upon the e ut
reser ed the pant abandoned the case o orger
and tred to set up the case o raud the ourt sad
mmons . Gutter dge ed . Deane 1 2 1
13 es. 262. Mo. 174.
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riqinal from
DI itized b
I N J E R t~E T A R C H I V E
(a) Jones v. Jones, 1744, 3 Atk. (b) Wilson v. Todd, 1835, 1Myl ,
110,217. & Cr. 42_
Nor can the
plain tiff, after
decree, pro-
secute a case
already made
but neglected.
,
For what pur- that he could not e tablish that ca e upon the original
~oes::a~~~ftple- bill., but directed him to file a supplemental bill to
may be filed. bring forward the case. of fraud in a propel' manner,
'-,,---J and to bring the trustees before the Court (a). _
~Iuch less after If at the hearing a supplemental bill will not be
decree. '
allowed, for the purpose of making an additional case
andpraying additional relief, much less can it be per-
mitted after a decree. Thus, where a bill was filed
against 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 the deceased co-
executor; it was discovered at the hearing that the
true representative of the deceased executor was not
before the Court, and the 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 plaintiffs
filed a supplemental bill, bringing the true represents-
ti ve of the deceased co-execu tor before the Court, and
prayed an account of the deceased co-executor', re-
ceipts ; but it was held that the supplemental bill was
ill fact an original bill against the true representative,
and was irregular, as '11aking a new case (b).
Even where the plaintiff' has 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 ca e by
vidence, but had omitted to do so; he was held not-
Of Imperfections originally
/
l ( j

mper ectons orgna
or what pur-
poses a uppe-
menta
ma be ed.
Much ess a ter
decree.
or can the
ant a ter
decree pro-
secute a case
aread made
but ne ected.
that e coud not estabsh that case upon the orgna
b but drected hm to e a suppementa b to
brng orward the case o raud n a proper manner
and to brng the trustees be ore the ourt a .
at te hearng a suppementa b w not be
aowed or the purpose o makng an addtona case
and pra ng addtona ree much ess can t be per-
mtted a ter a decree. Thus where a b was ed
ao-anst two sur ng e ecutors and the supposed re-
presentat e o a deceased e ecutor or the admn-
straton o ther testator s estate mpeachng certan
accounts between the de endants and te deceased co-
e ecutor t was dsco ered at the hearng that the
true representat e o the deceased e ecutor was not
be ore the ourt and te remed as aganst hs estate
was abandoned. The decree accordng restrcted
the account to the accounts o the de endants and
drected the account setted wth the deceased co-e e-
cutor not to be dsturbed. terwards the ant s
ed a suppementa b brngng the true representa-
t e o the deceased co-e ecutor be ore the ourt and
pra ed an account o te deceased co-e ecutor s re-
cepts but t was hed that the suppementa b was
n act an orgna b aganst the true representat e
and was rreguar as nakng a new case b .
en where the pant rs made out hs case or
addtona ree b hs orgna b et he has neg-
ected to prosecute that case he cannot a ter decree
e a suppementa b or the purpose o prosecutng
t. Thus where a pant had made a case b hs
b or n ur and account as to e utabe waste and
had had an opportunt o supportng that case b
e dence but had omtted to do so he was ed not
a ones ones 17-14 3 tk.
110 217.
b son . Todd 1335 1 M .
r. 42.
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Original frcrn
DI ;J inzed by
cu. Rep. 142.
(e) Knight v. Waterford, 1833,
9Bli. N. S. 331,
(f) Knight v. Knight, 1819, 4
Madd. 1.
(c) Newdigate v. Ne'llJdigate,
1834, 8 Bli. N. S. 734.
(d) Usborne v. Baker, 1817, 2
Madd. 379. And even after a de-
cree to account. Boeve v. Skip-
with, 1679, 1 E. Ca. Ab. 80; 2
C
entitled to an issue as to that equity, 1101' to rai e the For what pur-
question anew in a supplemental or other suit; al- ~oes::a~~~hple-
though the bill as to that equity had not been dis- 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
might 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; 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, i,twas said that if new
evidence as to facts stated in the original bill, 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
entted to an ssue as to that e ut nor to rase te or what pur-
ueston anew n a suppementa or other sut a- P
menta
though the b as to that e ut had not been d s- ma be ed.
mssed b the decree c .
though a suppementa b o dsco er ma be or dsco er .
ed d whene er a dsco er s necessar and cannot
be obtaned b amendment o the orgna b et
ths rue w not app to cases where the pant
mgt ha e sought the dsco er b hs orgna b
but negected to do so. Thus where a b was ed
aganst an n ant who put n an nsu cent answer
whch on account o the n anc coud not be e cepted
to and a ter he had attaned hs u age the pant
ed a suppementa b nterrogatng as to the un-
answered matters n the orgna b and aso as to
other matters and pra ed on a dsco er and t dd
not appear that he mght not ha e nterrogated n hs
orgna b as to the new matter t was hed that
the suppementa b mght be sustaned so ar as re-
garded the nterrogatores n the orgna b but not
as to the new nterrogatores e .
suppementa b ma be ed to perpetuate the To perpetuate
testmon o wtnesses on the ground o acts dsco ered testmon .
snce the ng o the orgna b but t has been
hed that the suppementa b must state what those
acts are or ese t cannot be sustaned .
n the abo e case howe er t was sad that new
e dence as to acts stated n the 07 gna h had been
dsco ered a ter the commsson to e amne wtnesses
had been cosed the proper course woud ha e been
not to ha e ed a suppementa b but to ha e made
c ewdgate . e dgate h. ep. 142.
1 34 . . . 734. e nght . ater ord 1 33
r sborne . aker 1 17 2 9 . . . 331.
Madd. 379. nd e en a ter a de- / nght . nght 1 19 4
cree to account. oe e . kp- Madd. 1.
wth 1679 1 . a. b. 0 2
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rlgln I fro
U N IV E R S IT Y O F C A L IF O R N IA
DI rtized b
(h) 1839, 10 Sim, 238.
(i) 1842, 6 J urist, 1077.
(g) For a precedent of such a
supplemental bill, seetheAppendix,
No. II.
For what pur- an application to the Court for permission to examine
poses aS~pple- the new witnesses.
mental BIll
may be filed. We have said that new parties may be added by
To add parties. amendment, 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 Semple v. Price (ll), 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 fileasupplemental bill bringing the deceased
husband's representatives before the Court. And on
1 mper ectons orgna
or what pur- an appcaton to the ourt or permsson to e amne
e the new wtnesses.
ma be ed. e ha e sad that new partes ma be added b
To add partes ndment a ter repcaton pro ded the new a er-
ments shewng the necesst o such new partes do
not a ect the case aread made aganst the other
partes. such new a erments do a ect the case a-
read made and a repcaton has been ed a sup-
pementa b ma be ed or the purpose o makng
such new a erments and brngng such new partes
be ore the ourt g .
Thus n empe . Prce / where a b was ed
chargng a sur ng trustee wth a breach o trust
the sur ng trustee submtted n hs answer that
the persona representat e o the deceased trustee
was a necessar part . The pant howe er dd
not amend her b but a ter the cause was at ssue
and a commsson had ssued or the e amnaton o
wtnesses she ed a suppementa b aganst the
persona representat e o the deceased trustee statng
that she had ate dsco ered that the breach o trust
had been commtted n the deceased trustee s etme
and pra ng that hs estate mght aso be made re-
sponsbe or t and a demurrer to such suppementa
b was o errued.
nd n oberts . Gr th where a b was ed
aganst an admnstratr a wdow chargng msap-
pcaton o the estate but not durng her husband s
e and not chargng hs estate therewth and a ter-
wards the pant dsco ered that part o the msap-
pcaton was made durng the co erture he as a-
owed to e a suppementa b brngng the deceased
husband s representat es be ore the ourt. nd on
or a precedent o such a h 1 39 10 m. 23 .
suppementa b see the ppend 1 42 6 urst 1077.
o. .
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19
Original from
Di9itized by
1719, Dick. 33.
(n) Lautour v. Holcombe, 1842,
11 Sim. 71.
(k) Ld. Red. ed. 4, p. 165.
(1) Waite v. Temple, 1823, 1 S.
& S. 319.
(m) Woodward v. Woodward,
C 2
an objection being taken, that it would betimeenough For what pur-
to fileasupplemental bill after the Master had re- ~~~:a~~~hple-
ported that the fact was as above alleged, Sir Lance- may be filed.
lot Shadwell, V. C., said that" it was better that the
supplemental bill should befiled at once, than that a
decree should be first taken in the original suit, and
then there might bethe necessity of having a supple-
mental decree upon the secondbill."
Sowherea party who was out of the jurisdiction of
theCourt where theoriginal bill was filed, and against
whomprocess 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 bemade parties by supple-
mental bill, if their claim has not been raised onthe
record, and no oneof them is in that character a party
to the cause; for if their claim has been raised, and
oneof them is aparty, the others may beheard with-
out being made parties (l). Andparties may beadded
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 adefendant, and at the
hearing such defendant was held to be a necessary
party, the Court would not allow the plaintiff to bring
him beforethe Court again by supplemental bill, but
dismissed thebill with costs(n).
If the plaintiff purposely omit to bring before the<:aseof aplain.
C
hi . h tiff purposely
ourt a necessary party to IS suit, sue party may, omitting a
it appears, filea new bill against all the parties to theparty.
an ob ecton beng taken that t woud be tme enough or what pur-
to e a suppementa b a ter the Master had re-
ported that the act was as abo e aeged. r ance- ma be ed.
ot had we . sad that t was better that the
suppementa b shoud be ed at once than that a
decree shoud be rst taken n the orgna sut and
then there mght be the necesst o ha ng a suppe-
menta decree upon the second b.
o where a part who was out o the ursdcton o
the ourt where the orgna b was ed and aganst
whom process was not pra ed b the orgna b has
snce returned wthn the ursdcton he ma be
added b suppementa b k . nd where the
Master has been drected to nd who are the ne t o
kn o a testator the ma be made partes b suppe-
menta b ther cam has not been rased on the
record and no one o them s n that character a part
to the cause or ther cam has been rased and
one o them s a part the others ma be heard wth-
out beng made partes . nd partes ma be added
b suppementa b a ter decree as we as be ore
or the purpose o carr ng the decree nto e ecu-
ton m .
here howe er the b had been dsmssed or
want o prosecuton as aganst a de endant and at the
hearng such de endant was hed to be a necessar
part the ourt woud not aow the pant to brng
hm be ore the ourt agan b suppementa b but
dsmssed the b wth costs w .
the pant purpose omt to brng be ore the ase o a pan-
ourt a necessar part to hs sut such part ma omttng a
t appears e a new b aganst a the partes to the part .
d. ed. ed. 4 p. 165 1719 Dck. 33.
0 ate . Tempe 1 23 1 . n autour . ocome 1 42
. 319. 11 m. 71.
m oodward . oodward
c2
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n In I
I rtize b
IN T E R t~E T A R C H IV E
(p) 1842, 6J urist, 907. (0) Smith v. Effingham, 1839,
2 Beav. 232.
To make an
infant co-
plaintiff a
defendant.
For what pur- former suit; but this will not be a supplemental bill,
~oes:;a~~~ftple- although the Court may afterwards declare that it shall
may be filed. be regarded in that light. Itwill not, therefore, have
'-..---' theeffect of making the newparty a party totheformer
suit. Thus where a Mr. Primrose granted fiveseve-
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 abill against the trustees and
all the annuitants except Smith, in which suit the
priorities were declared and a receiver was appointed.
Afterwards Smith filed a bill praying that he might
be declared first incumbrancer, and that the receiver
might be restrained frommaking further payments to
the defendants, and that if necessary his bill might be
taken as abill 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 shonld betaken as supplemental to the
first or not, it being premature to do so(0).
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
remammg co-plaintiffs intended to apply for a re-
hearing.
Of Imperfections originally :20
20
mper ectons orgna
or what pur-
poses a uppe-
menta
ma be ed.
To make an
n ant co-
pant a
de endant.
ormer sut but ths w not be a suppementa b
athough the ourt ma a terwards decare that t sha
be regarded n that ght. t w not there ore ha e
the e ect o makng the new part a part to the ormer
sut. Thus where a Mr. Prmrose granted e se e-
ra annutes to mth rown ate Pearson and
r dges respect e and e ecuted a credtors deed
to trustees the trusts o whch were unknown to
mth r dges ed a b aganst the trustees and
a the annutants e cept mth n whch sut the
prortes were decared and a rece er was apponted.
ter rards mth ed a b pra ng that he mght
be decared rst ncumbrancer and that the rece er
mght be restraned rom makng urther pa ments to
the de endants and that necessar hs b mght be
taken as a b n the nature o a b o re ew o or
o a b suppementa to the ormer cause. ut t
was hed that an appcaton b mth or an n unc-
ton aganst the rece er was rreguar because the re-
ce er had been apponted n a d erent cause rom
that n whch the appcaton was made and that the
proper remed was or the new part to ask ea e n
the other sut to en orce hs ega remedes. nd the
ourt woud not on that occason determne whether
the second b shoud be taken as suppementa to the
rst or not t beng premature to do so o .
suppementa b ma be ed or the purpose o
makng an n ant co-pant a de endant upon hs
attanng hs ma ort he repudates the sut. n n-
derson . as p such a b was ed a ter a decree
dsmssng the orgna b but o whch decree the
remanng co-pant s ntended to app or a re-
hearno-.
o mth . ngham 1 39
2 ea . 232.
1 42 6 urst 907.
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Original from
Digitize by
v. Bond, 1841, 6 J urist, 49. For a
precedent of such a supplemental.
bill, see the Appendix, No. Ill.
(r) ] 744,3 Atk. 132.
(q) Vide Asbee v. Shipley, 1822,
6 Madd. 296; Stewart v. Nicoll8,
1829, 1Tam!. 307; Crowfoot v.
Mander, 1840, 9 Sim, 396; Clough
If a party to the original bill die before be has For what pur-
appeared to such bill it is con idered that there is inposes aS~ppJ e-
, , mental Bill
fact, no suit in Court as against him. The imperfec- may be filed.
tion, therefore, arising fromthe want of such aparty W " - . . - - - - - ' h t
ere apar y
is inherent in the suit, and must beremedied by asup- dies before
plemental bill filed against the representative of the ~~~:~~:f~:l to
deceased party, in the same manner as it would have bill.
been filed against the deceased party himself, jf he
had been inadvertently omitted to bemade aparty to
the original bill, and were still alive (q).
A supplemental bill may be filed for the purpose of To give further
enabling the Court to oi\ e directions which were not directio~s a~ter
o decree, I n aid
prayed by the original bill, but which, after adecree oftbe 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 bil1extended to every
thing which was prayed by the plaintiff in the supple-.
mental bill, added,-" But suppose the original bill to
havebeen as defectiveasthedefendant's counsel would
have it, could any thing be more proper than to bring
asupplemental 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 ade-
cree of this Court, as in adecree 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 asupplemental bill
that he might have an entire relief; and I think that
21
a part to the orgna b de be ore e has or what pur-
appeared to such b t s consdered that there s n posesa uppe-
r _ _ _ menta
act no sut n ourt as aganst hm. The mper ec- ma be ed.
ton there ore arsng rom the want o such a part where a part
s nherent n the sut and must be remeded b a sup- des be ore
pementa b ed aganst the representat e o the thTorknr
deceased part n the same manner as t woud ha e b
been ed aganst the deceased part hmse he
had been nad ertent omtted to be made a part to
the orgna b and were st a e .
suppementa b ma be ed or the pur ose o To g e urther
enabno- the ourt to o e drectons whch were not ectons a ter
o _ o _ decree n ad
pra ed b the orgna b but whch a ter a decree o the decree.
has been made the resut o the proceedngs under
that decree has rendered proper. Thus n Dormer .
ortescue r ord ardwcke a ter sa ng that he.
was o opnon that the orgna b e tended to e er
thng whch was pra ed b the pant n the suppe-
menta b added ut suppose the orgna b to
ha e been as de ect e as the de endant s counse woud
ha e t coud an thng be more proper than to brng
a suppementa b to put ths matter n ssue and to.
supp the de ects an n the orgna b up-
pementa bs are o ten brought e en n ad o a de-
cree o ths ourt as n a decree to account or want
o u drectons be ore and drectons are g en
under the suppementa b that the new matter
shoud be connected wth the ormer decree. the
pant s orgna b had not pra ed ths genera
ree t was er proper to brng a suppementa b
that he mght ha e an entre ree and thnk that
g de sbee . hpe 1 22 . ond 1 41 6 urst 49. or a
Madd. 29G tewart . cos precedent o such a suppementa
1 29 1 Tam. 307 row oot . b see the ppend o. .
Mander 1 40 9 m. 396 ou h r 744 3 tk. 132.
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n In I
I rnze
(8) Hodson v. Ball, 1842, 1Phill. 176, affirming S. C. 1841, 11
Sim.456.
For what pur- they ought to be considered as one bill, and connected
poses aS~pple- together"
mental Bill
may be filed. The province of a supplemental bill in aid of a de-
~ cree, however, is merely to carry out, and give fuller
must not seek effect to, that decree, and not to obtain relief of a
to change the
relief. different kind, and on a different principle ;-the
latter being the province of a supplemental bill in
nature of a bill of review, which will be discussed in
the next chapter, and which cannot be filed without
leave of the Court, as the supplemental bills hitherto
considered may be. Where, therefore, in a suit for
the execution of the trusts of a will, the original bill
had prayed, and the decree had directed, merely the
common accounts against the executors; and the
plaintiff afterwards filed a supplemental bill without
leave of the Court, alleging that, in taking the ac-
counts in the Master's Office, he had discovered for
the first time that the executors had been guilty of
misconduct, and praying relief against them inrespect
of their wilful neglect and default; this being relief
of a different kind fromwhat was before prayed, the
supplemental bill was ordered to be taken off the file
for irregularity (s).
So where adecree had been made for the sale of the
real estate of a testator for the payment of his debts,
of which real estate it was supposed the testator had
died seised in fee simple; and on the investigation,
by a purchaser, of the title to part of the estates, an
oldentail ~asdiscovered, which had never beenburred,
and under which the plaintiff was tenant in tail; a
supplemental bill was filed by the plaintiff to rectify
the decree in the former suit, and praying the neces-
22
mper ectons orgna
or what pur-
poses a uppe-
menta
ma be ed.
.
ut the b
must not seek
to change the
ree .
the ought to be consdered as one b and connected
together.
The pro nce o a suppementa b n ad o a de-
cree howe er s mere to car out and g e uer
e ect to that decree and not to obtan ree o a
d erent knd and on a d erent prncpe the
atter beng the pro nce o a suppementa b n
nature o a b o re e s rch w be dscussed n
the ne t chapter and whch cannot be ed wthout
ea e o the ourt as the suppementa bs htherto
consdered ma be. here there ore n a sut or
the e ecuton o the trusts o a w the orgna b
had pra ed and the decree had drected mere the
common accounts aganst the e ecutors and the
pant a terwards ed a suppementa b wthout
ea e o the ourt aegng that n takng the ac-
counts n the Master s ce he had dsco ered or
the rst tme that the e ecutors had been gut o
msconduct and pra ng ree aganst them n respect
o ther w u negect and de aut ths beng ree
o a d erent knd rom what was be ore pra ed the
suppementa b was ordered to be taken o the e
or rreguart s .
o where a decree had been made or the sae o the
rea estate o a testator or the pa ment o hs debts
o whch rea estate t was supposed the testator had
ded sesed n ee smpe and on the n estgaton
b a purchaser o the tte to part o the estates an
od enta was dsco ered whch had ne er been barred
and under whch the pant was tenant n ta a
suppementa b was ed b the pant to rect
the decree n the ormer sut and pra ng the neces-
s odson . a 1 42 Ph. 176 a rmng . . 1 41 11
m. 456.
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Original fr m
DI gI tI zed by
p. 97, that he" doesnot perceive
that this Order effectsany material
alteration inthepresent practice of
drawingbills of this description."
(t) Dyneley v. Hartley, 1838,2
J urist, 229.
(u) Mr. Daniell, inhis" Obser-
vations" on these Orders, says,
sary directions and declarations of the Court for that For what pur.
P
urpose. But Lord Cottenham C. said_" If the posesaS~pple-
, " mental BlU
bill were regular, the relief sought would be granted may befiled.
hy the Court; but theplaintiff must, inthat case, have '-v-'
shewn, that with ordinary diligence he could not have
earlier known the circumstances nowbrought forward
by him. The present course of proceeding, however,
is irregular, and, therefore, I shall make a decree rec-
tifying the decree in the former suit, only oncondition
of the plaintiff paying the defendants their costs of
this suit (t)."
Let us now consider the general formof the bill in Formof the
question. ~ill~lemental
Lord Redesdale says that a supplemental bill must '-v-'
tate the original bill, by which he probably means ~~~::al state-
that it must state the filing of the original bill; but it
has been sometimes construed to mean that the sup-
plemental bill must restate the statements in the origi-
nal bill. To put a stop to this practice it is declared
by theForty-ninth Order of 1841, that it shall not be
necessary in any supplemental bill to set forth any of
the statements in the pleadings in the original suit,
unless the special circumstances of the case may re-
quire it (u).
The exception contained in the concluding words
makes it necessary for us to inquire how far, and
under what circumstances, the matter of the original
bill must benoticed in the supplemental bill.
Nowthe ohject of thesupplemental bill being merely
to make an addition to the original bill, there canbeno
advantage in telling the original parties any thing
which they have already been interrogated to and
sar drectons and decaratons o the ourt or that or what pur-
purpose. ut ord ottenham sad the P -
b were reguar the ree sought woud be granted ma be ed
b the ourt but the pant must n that case ha e
shewn that wth ordnar dgence he coud not ha e
earer known the crcumstances now brought orward
b hm. The present course o proceedng howe er
s rreguar and there ore sha make a decree rec-
t ng the decree n the ormer sut on on condton
o the pant pa ng the de endants ther costs o
ths sut 0.
et us now consder the genera orm o the b n orm o the
ueston. uppementa
ord edesdae sa s that a suppementa b must
state the orgna b b whch he probab means
that t must state the ng o the orgna b but t
has been sometmes construed to mean that the sup-
pementa b must restate the statements n the org-
na b. To put a stop to ths practce t s decared
b the ort -nnth rder o 1 41 that t sha not be
necessar n an suppementa b to set orth an o
the statements n the peadngs n the orgna sut
uness the speca crcumstances o the case ma re-
ure t u .
The e cepton contaned n the concudng words
makes t necessar or us to n ure how ar and
under what crcumstances the matter o the orgna
b must be notced n the suppementa b.
ow the ob ect o the suppementa b beng mere
to make an addton to the orgna b there can be no
ad antage n teng the orgna partes an thng
whch the ha e aread been nterrogated to and
0 D nee . arte 1 3 2 p. 97 that he does not perce e
urst 229. that ths rder e ects an matera
w Mr. Dane n hs bser- ateraton n the present practce o
atons on these rders sa s drawng bs o ths descrpton.
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.I In I
I Iize
ascribed by Master Dowdeswell to
a similar expression in Woods v.
Woods, 1839, 10 Sim. 197.
(z) 1828, 2 Moll. 3l.j
(x) 1842, 6 J urist, 907.
(y) But quare whether the words
" as the fact is," would not have
the effect of putting the whole case
in issue again? Such is the effect
Form of the answered; whilst, with respect to newparties, as they
~~8~lemental will be called upon to answer the original bill, there
"-v----Jwin be no reason for stating the whole case over again
in the supplemental bill, for their benefit. Such
statements are, therefore, prima facie, surplusage and
improper, and productive of useless expense. In
Anderson v. Wallis (x), however, Sir Lancelot Shad-
well, V. C., said,-" You must introduce some state-
ment showing you have an interest.-I used to say,
the plaintiffs filed their original bill, thereby. stating
matters whereby it appeared, as the fact is (y), that the
plaintiffs are entitled to the relief they prayed."
In Onge v. Truelock (z) Sir Anthony Hart ex-
pressed his decided approbation of Lord Eldon's having
expunged from a supplemental bill even a very short
restatement of the original bill, saying that it was
quite sufficient to state the mere filing of it; or the
decree, if after decree. But it is apprehended, that
although this may be sufficient in some instances, yet
in others something more must be stated, in order
to make an intelligible story in the supplemental
bill.
On the whole, it is apprehended that no general
rule can be laid down on this point, except that as
little as possible of the original bill must be stated,
consistently with making the supplemental bill in-
telligible.
Former pro- The supplemental bill must then go on to state the
ceedings. proceedings which have taken place in the suit, and
the decree, if any has been made. In many instances
the story of the supplemental bill will be sufficiently
24
mper ectons orgna
orm o the
uppementa

ormer pro-
ceedngs.
answered whst wth respect to new partes as the
w be caed upon to answer the orgna b there
w be no reason or statng the whoe case o er agan
n the suppementa b or ther bene t. uch
statements are there ore pr nd ace surpusage and
mproper and product e o useess e pense. n
nderson . as howe er r anceot had-
we . sad ou must ntroduce some state-
ment showng ou ha e an nterest. used to sa
the pant s ed ther orgna h thereb statng
matters whereb t a peared as the act s that the
pant s are entted to the ree the -a ed.
n nge . 7rueock r nthon art e -
pressed hs decded approbaton o ord don s ha ng
e punged rom a suppementa b e en a er short
restatement o the orgna b sa ng that t was
ute su cent to state the mere ng o t or the
decree a ter decree. ut t s apprehended that
athough ths ma be su cent n some nstances et
n others somethng more must be stated n order
to make an ntegbe stor n the suppementa
b.
n the whoe t s apprehended that no genera
rue can be ad down on ths pont e cept that as
tte as possbe o the orgna b must be stated
consstent wth makng the suppementa b n-
tegbe.
The suppementa b must then go on to state the
proceedngs whch ha e taken pace n the sut and
the decree an has been made. n man nstances
the stor o the suppementa b w be su cent
1 42 6 urst 907.
ut 5 re whether the words
as the act s woud not ha e
the e ect o puttng the whoe case
n ssue agan uch s the e ect
ascrbed b Master Dowdeswe to
a smar e presson n oods .
oods 1 39 10 m. 197.
r 1 2 2 Mo. 31.
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Original from
Digitized by
v. Bond, 1841, 6 J urist, 49.
( 0 ) 3 Dan. Ch. Pro 176.
( c) 1754,3 Atk. 817.
( a) Asbee v. Shipley, 1822, 6
Madd. 296; Stewart v. Nicolls,
1829, 1 Tam!. 307; Crowfoot v.
Mander, 1840, 9Sim, 396; Clough
intelligible by merely mentioning the original bill, and Form of the
then setting out the decree. S~pplemental
. BIll.
The supplemental bill must then state" by way of ~
supple11lent,"-for such is the form of words to be ~~f~:~ental
used on this occasion,-the new matter which has
been discovered since the proceedings in the cause.
I tmust also call upon the defendants for an answer Callsfor answer
in the usual way; and if it brings a new person be- to itself,
fore the Court who ought to have been a party to the
original bill, or a persoll who stands in the place of a
person who was made a party to the original bill, but
died before appearing to it (a), it must call upon snch and for answer
party to answer the original bill also, or rather such to original bill.
of the interrogatories to it as the plaintiff points out.
Mr. Daniell says (b) that a new party who ought to
have been a party to the original hill, cannot be called
upon, by the supplemental hill, to answer the original
bill; quoting as an authority the case of Baldwin v.
Mackown ( c) . With deference, it is submitted that
this case, of which the report is very slender, does
not decide that a necessary party, brought before the
Court by supplemental bill, may not be called upon
to answer the original bill; but merely that inthat par-
ticular instance the new party ought not to have been
brought before the Court by supplemental bill. At
any rate it is submitted that the usual practice in
these cases is to call upon a new party, who ought to
have been a party to the original bill, to answer that
original bill.
The supplemental bill, if it brings a new defendant Prayer of the
before the Court, must pray that the plaintiff may bill.
have the same relief from his original bill as if such
25
ntegbe b mere mentonng the orgna b and orm o the
then settng out the decree. uppementa
The suppementa b must then state b wa o .
suppement or such s the orm o words to be m att er
used on ths occason the new matter whch has
been dsco ered snce the proceedngs n the cause.
t must aso ca upon the de endants or an answe as oranswer
n the usua wa and t brngs a new person be-
ore the ourt who ought to ha e been a part to the
orgna b or a person who stands n the pace o a
person who was made a part to the orgna b but
ded be ore appearng to t a t must ca upon such and or answer
part to answer the orgna b aso or rather such orgna b.
o the nterrogatores to t as the pant ponts out.
Mr. Dane sa s that a new part who ought to
ha e been a part to the orgna b cannot be caed
upon b the suppementa b to answer the orgna
b uotng as an authort the case o adwn .
Mackown c . th de erence t s submtted that
ths case o whch te report s er sender does
not decde that a necessar part brought be ore the
ourt b suppementa b ma not be caed upon
to answer the orgna b but mere that n that par-
tcuar nstance the new part ought not to ha e been
brought be ore the ourt b suppementa b. t
an rate t s submtted that the usua practce n
these cases s to ca upon a new part who ought to
ha e been a part to the orgna b to answer that
orgna b.
The suppementa b t brngs a new de endant Pra er o the
be ore the ourt must pra that the pant ma
ha e the same ree rom hs orgna b as such
a sbee . hpe 1 22 6 . ond 1 41 6 urst 49.
Madd. 296 tewart . cos . b 3 Dan. h. Pr. 1/6.
1 29 1 Tam. 307 row oot . c 1754 3 tk. 17.
Mander 1 40 9 m. 396 ouc/h
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I I
n In I
Cd) Giles v. Giles, Penfold v. Penfold, 1836, 1Keen, 685.
Signature of
counsel.
Formof the
Supplemental
Bill.
new defendant had been a party to the original bill ;
or, if the new defendant stands in the place of a party
'-- __ .....J who died before appearing to the original bill, the
samerelief as he might have had against such former
party, if hehad appeared to the original bill, and were
still alive; or, if the supplemental bill brings forward
new matter only, the same relief, in respect of the new
matter, as he would have had if such new matter had
been stated in the original bill; and it must also pray
for relief adapted to the new circumstances of the
case.
Caseof a A plaintiff may file a supplemental bill under a
?hangeof.na~e different name from that under which he filed the
1D theplaintiff,
original bill, if such latter name was a wrong one,
without prejudicing the evidence taken in the origi-
nal suit. Thus, where a woman filed a bill under the
name of Ann Giles, widow; and it appearing that
J ohn Penfold her husband was alive, she was ordered
at the hearing to make her husband a party, and did
so by supplemental bill, calling herself Ann Penfold,
alias Ann Giles, by her next friend; it was held that
this was not such an alteration of the frame of the
record as to make the evidence in the first cause in-
admissible at the hearing of the two causes (d).
A supplemental bill must be signed by counsel, and
is filed in the same manner as an original bill.
What party We will now consider who may file the bill in ques-
mayfilethe tion, and who will be the proper parties to it.
Supplemental
Bill. As to the first question, we must recollect that a
'-v-----J upplemental bill of this nature is a substitution for
an amendment of the original bill, and partakes in
some degree of the character of such aproceeding.
As therefore no one but the plaintiff can amend his
original bill, so it is apprehended that no one but the
26
mper ectons orgna
orm o the
uppementa
.
ase o a
change o name
n the pant .
gnature o
counse.
hat part
ma e the
uppementa
.
new de endant had been a part to the orgna b
or the new de endant stands n the pace o a part
who ded be ore appearng to the orgna b the
same ree as he mght ha e had aganst such ormer
part he had appeared to the orgna b and were
st a e or the suppementa b brngs orward
new matter on the same ree n respect o the new
matter as he woud ha e had such new matter had
been stated n the orgna b and t must aso pra
or ree adapted to the new crcumstances o the
case.
pant ma e a suppementa b under a
d erent name rom that under whch he ed the
orgna b such atter name was a wrong one
wthout pre udcng the e dence taken n the org-
na sut. Thus where a woman ed a b under the
name o nn Ges wdow and t appearng that
ohn Pen od her husband was a e she was ordered
at the hearng to make her husband a part and dd
so b suppementa b cang herse nn Pen od
aas nn Ges b her ne t rend t was hed that
ths was not such an ateraton o the rame o the
record as to make the e dence n the rst cause n-
admssbe at the hearng o the two causes c .
suppementa b must be sgned b counse and
s ed n the same manner as an orgna b.
e w now consder who ma e the b n ues-
ton and who w be the proper partes to t.
s to the rst ueston we must recoect that a
suppementa b o ths nature s a substtuton or
an amendment o the orgna b and partakes n
some degree o the character o such a proceedng.
s there ore no one but the pant can amend hs
orgna b so t s apprehended that no one but the
Ges . Ges Pen od . Pen/od 1 36 1 een 6 5.
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Original from
Drgiti zed by
(1) Strickland V. Strickland,
1842, 7J urist, 32.
(e) Vide Delfosse v. Crawshaw,
1834,3Dan. ell. Pro156.
plaintiff can file a supplemental bill for the same What party
may filethe
purpose. Supplemental
It is true, however, that where the supplemental Bill.
bill is filed not merely for the purpose of introducing --,,--
new matter, but in order to add parties to the suit,
the plaintiff may join such parties with himself as
co-plaintiffs in the supplemental bill, instead of
making them defendants to it. Thus, where a suit
had been instituted in the names of several co-plain-
tiffs, and it was discovered that one of them had been
in fact dead at the time of such institution, the exe-
cutor of the deceased co-plaintiff was allowed to be
joined with the original co-plaintiffs in filing a sup-
plemental bill to correct the error (e). And we has e
already seen that where a bill by certain legatees
stated that all the other legatees had been paid their
legacies, and it was afterwards discovered that one of
those other legatees had not been paid his legacy, he
was allowed to join with the original plaintiffs, as a
co-plaintiff, in filing a supplemental bill for the pur-
pose of correcting the error (f).
Next as to the question of parties to a supplemental Parties to the
bill.-If the bill is filed merely for the introduction of ~~1:lemental
new matter, it is obvious that all the parties to the --,--
original bill must be parties to the supplemental bill,
either as plaintiffs or defendants. Where, however,
the supplemental bill is filed for the purpose of adding
parties, the question whether all or any of the original
parties must be made parties to such a bill, is some-
times one of difficul ty.
If the original suit was instituted by several plain- Ori.g~al co-
tiffs, they must all be made parties to the supple- plaintiffs.
mental bill, either as plaintiffs or defendants; because
27
pant can e a suppementa b or the same hat part
purpose. t e
T 1 111 1 1 uppementa
t true howe er that where the suppementa
b s ed not mere or the purpose o ntroducng -
new matter but n order to add partes to the sut
the pant ma on such partes wth hmse as
co-pant s n the suppementa b nstead o
makng them de endants to t. Thus where a sut
had been nsttuted n the names o se era co-pan-
t s and t was dsco ered that one o them had been
n act dead at the tme o such nsttuton the e e-
cutor o the deceased co-pant was aowed to be
oned wth the orgna co-pant s n ng a sup-
pementa b to correct the error e . nd we ha e
aread seen that where a b b certan egatees
stated that a the other egatees had been pad ther
egaces and t was a terwards dsco ered that one o
those other egatees had not been pad hs egac he
was aowed to on wth the orgna pant s as a
co-pant n ng a suppementa b or the pur-
pose o correctng the error .
e t as to the ueston o partes to a suppementa Partes to the
b. the b s ed mere or the ntroducton o pp 1
ne matter t s ob ous that a the partes to the /
orgna b must be partes to the suppementa b
ether as pant s or de endants. here howe er
the suppementa b s ed or the purpose o addng
partes the ueston whether a or an o the orgna
partes must be made partes to such a b s some-
tmes one o d cut .
the orgna sut was nsttuted b se era pan- rgna co-
t s the must a be made partes to the suppe- P -
menta b ether as pant ts or de endants because
e de De osse . rawshaw trckand . trckand
1 34 3 Dan. h. Pr. 156. 1 42 7 urst 32.
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I tze
delivered in a case of revivor, are,
it is apprehended, equally appli-
cable to a case of supplement.
(h) 1822,3Madd. 369.
(g) Vide the dicta of Lord Eldon
in Fallauies v. Williamson, 1805,
11Ves. 306, and quoted more fully,
post, Chapter VII. which, although
Parties to the a co-plaintiff has no right to take any step in a suit
Supplemental
Bill. without giving the others an opportunity of assenting
"-,----I thereto or dissenting therefrom (g).
Original de-
fendants. But, as to the original defendants, it is not always a
matter of course that they are to be parties to the
supplemental bill, The rule 011 this subject is in
theory a very simple one, although the application of
it topractice isattended with difficulty. The original
defendants need notbemadeparties tothesupplemental
bill unless they have an interest in disputing the new
matter alleged in the supplemental bill: and even
though they may have an interest in disputing such
new matter, yet, if by reason of former admissions in
their answers, or otherwise, they have nopower of dis-
puting it, this will dispense with the necessity of
making them parties.
The case of Bignall v. Athins (h) is an instance of
the original defendants not being considered neces-
sary parties to the supplemental bill. In that case a
party was entitled under awill to all the monies in the
hands of J ohn and Abraham Atkins, consignees; who,
however, claimed to deduct a part thereof on account
of a certain loss. The plaintiff thereupon filed a bill
praying that, if such deduction were proper, theamouut
might be made good out of the testator's assets. It
appeared from the answers of J ohn and Abraham
Atkins, that the executor, another defendant, was out
of thejurisdiction; and that Abraham Atkins had be-
come a bankrupt before the filing of the bill; and
upon an objection being made at the hearing for want
of parties, the cause was ordered to stand over with
liberty to the plaintiff to add proper parties by a sup-
2
mper ectons orgna
Partes to the a co-pat has no rght to take an ste D n a sut
wtout g ng the others an opportunt o assentng
rgna de-
endants.
thereto or dssentng there rom g .
ut as to the orgna de endants t s not awa s a
matter o course that the are to be partes to the
suppementa b. The rue on ths sub ect s n
theor a er smpe one athough the appcaton o
t to practce s attended wth d cut . The orgna
de endants need notbe made partes to the suppementa
b uness the ha e an nterest n dsputng the new
matter aeged n the suppementa b : and e en
though the ma ha e an nterest n dsputng such
new uatter et b reason o ormer admssons n
ther answers or otherwse the ha e no wwer o ds-
putng t ths w dspense wth the necesst o
makng them partes.
The case o gna . tkns h s an nstance o
the orgna de endants not beng consdered neces-
sar partes to the suppementa b. n that case a
part was entted under a w to a the mones n the
hands o ohn and braham tkns consgnees who
howe er camed to deduct a part thereo on account
o a certan oss. The pant thereupon ed a b
pra ng that such deducton were proper the amount
mght be made good out o the testator s assets. t
appeared rom the answers o ohn and braham
tkns that the e ecutor another de endant was out
o the ursdcton and that braham tkns had be-
come a bankrupt be ore the ng o the b and
upon an ob ecton beng made at the hearng or want
o partes the cause was ordered to stand o er wth
bert to the pant to add proper partes b a sup-
g u/e the dcta o ord don de ered n a case o re or are
n aoues . amson 1 05 t s apprehended e ua app-
11 es. 306 and uoted more u cabe to a case o suppement.
post hapter . whch athough h 1 22 3 Madd. 369.
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Original from
Digitized by
plemental bill. Afterwards, one J ohn Allen having Parties to the
taken out a limited administration to the testator, ~~8~lemental
the plaintiff fileda supplemental bill against him, and "-..-J
also against Kyrner and J ackson, the assignees of
Abraham Atkins; and upon an objection being taken
by J ohn Atkins, at the hearing of the original and
supplemental suits, that he had not been made a
party to the supplemental bill, Sir J ohn Leach, V. C.,
overruled it; observing that "The purpose of the
supplemental bill is to bring' new parties before the
Court whohavean interest in the matter of theoriginal
bill. There are no newfacts except thosewhich show
the relation of the new parties to the subject of the
suit ;-that Abraham Atkins became a bankrupt, and
that the new defendants, Kymer and J ackson, are his
assignees, and that the defenelant J ohn Allen is the
limited administrat i)f of the testator. If any purpose
of justice requires that J ohn Atkins should be at
liberty to join issue with the plaintiff upon these sup-
plemental facts, then it is fit that he should bemade a
defendant. I tcannot. be useful to him to join issue
with the plaintiff on the facts of the bankruptcy of
Abraham Atkins and the alleged choice of assignees,
because in his answer tothe original bi11he makes the
same statement; nor can it be useful to him to join
issue on the fact of the limited administration to J ohn
Allen, for that fact can only be proved by the letters
of administration, and is conclusively proved by their
production. My opinion, therefore, is, that the defen-
dant, J ohn Atkins, has no such interest in the supple-
mental facts as makes it necessary for him to be a
party to the supplemental bill."
So where a plaintiff filed a supplemental bill to add
a party whom the defendant had insisted, by his an-
swer, to be a necessary party, because he was entitled
ementa b. terwards one ohn en ha ng Partes to the
taken out a mted admnstraton to the testator - menta
the pant ed a suppementa b aganst hm and
aso aganst mer and ackson the assgnees o
braham tkns and upon an ob ecton beng taken
b ohn tkns at the hearng o the orgna and
suppementa suts that he had not been made a
part to the suppementa b r ohn each .
o errued t obser ng that The purpose o the
suppementa b s to brng new partes be ore the
ourt who ha e an nterest n the matter o the orgna
b. There are no new acts e cept those whch show
the reaton o the new partes to the sub ect o the
sut that braham tkns became a bankrupt and
that the new de endants mer and ackson are hs
assgnees and that the de endant ohn en s the
mted admnstrator o the testator. an purpose
o ustce re ures that ohn tkns shoud be at
bert to on ssue wth the pant upon these sup-
pementa acts then t s t that he shoud be made a
de endant. t cannot be use u to hm to on ssue
wth the pant on the acts o the bankruptc o
braham tkns and the aeged choce o assgnees
because n hs answer to the orgna b he makes the
same statement nor can t be use u to hm to on
ssue on the act o the mted admnstraton to ohn
en or that act can on be pro ed b the etters
o admnstraton and s concus e pro ed b ther
producton. M opnon there ore s that the de en-
dant ohn tkns has no such nterest n the suppe-
menta acts as makes t necessar or hm to be a
part to the suppementa b.
o where a pant ed a suppementa b to add
a part whom the de endant had nssted b hs an-
swer to be a necessar part because he was entted
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I ItI
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(i) Greenwoodv. Atkinson, 1832, Russell, 1838, 1 C. P. Cooper,
5 Sim. 419. Vide etiam Lloyd v. 258.
Partiestothe to be reimbursed by such party what he (the defen-
~~fi:lemental dant) might be decreed to pay to the plaintiff; it was
,,--..,,_..-J held, that heneed not make the original defendant a
party to such supplemental bill, "because it wasfiled
for the purpose of being heard with the original bill,
and for the samerelief 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 reported to have said,-
" Where asupplemental bill is filedfor thepurpose 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 theseexpres-
sions, His Honor intended facts which existed prior to
the filing of the original bill, and have been already
put in issueasto 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 abreach of trust, who by his answer sub-
mitted that the personal representative of his late co-
trustee was anecessary party; and after thecausewas
at issue, the plaintiff filed a supplementa1 bill against
such personal representative, stating that she had
30
30 mper ectons orgnah
Partes to the to be rembursed b such part what he the de en-
uppementa nt mght be decreed to pa to the pan t t was
. . hed that he need not make the orgna de endant a
part to such suppementa b because t was ed
or the purpose o beng heard wth the orgna b
and or the same ree as the orgna . n other
words the orgna de endant coud not dspute the
truth o the aegatons n the suppementa b
because he had hmse nssted on them b hs an-
swer.
n the abo e case o Greenwood . tknson r
anceot hadwe . s re orted to ha e sad
here a suppementa b s ed or the purpose o
puttng n ssue a new act or an od act new ds-
co ered t s rght to make the orgna de endants
partes to t but where the case conssts o acts
whch e sted pror to the ng o the orgna b
the de ect e part s to be brought be ore the ourt
b suppementa b aone. There s some tte
obscurt n ths passage or the e presson acts
whch e sted pror to the ng o the orgna b
woud seem to ncude od acts new dsco ered.
ut t s presumed that b the ormer o these e pres-
sons. s onor ntended acts whch e sted pror to
the ng o the orgna b and ha e been aread
put n ssue as to the orgna de endants ether b the
b or as n ths case b the de endant s answer.
o where a b was ed chargng a sur ng
trustee wth a breach o trust who b hs answer sub-
mtted that the persona representat e o hs ate co-
trustee was a necessar part and a ter the cause was
at ssue the pant ed a suppementa b aganst
such persona representat e statng that she had
Greenwood . tknson usse 1 3 1 . P. ooper
5 m. 419 . de etam o d . 25 .
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31
Original frcrn
DiginZf' by
(l) Clough v. Bond, 1841, 6
J urist, 49, 51.
(k) Semple v, Price, 1839, 10
Sim.238.
lately discovered that the breach of trust was com- Parties to the
mitted in the deceased tru tee's lifetime; such sup- S~pplement~l
. Bill.
plemental bill was filed agamst the personal represen- "-t----J
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 wasbrought
before the Court by supplemental bill; and an objec-
tion was made tbat the original defendants were 110t
made parties toit; 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 abill of revivor against his repre-
sentatives; the way to revive it, as against them, wa
by supplemental bill; and as his death did not alter
the interests of any of the other defendants, it was not
neces ary to make them defendants to it." Again;-
" If a supplemental bill be only for the purpo e of
bringing a party before the Court upon a given case,
it is sufficient to make that individual alone aparty,
without making the other defendants parties thereto;
but if the supplemental bill be filed to bring new facts
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 aparty in
respect of the antecedent facts upon record." The
objection therefore was overruled (l.)
So where avendor 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, wbo, however, were not parties to the
suit; and at the hearing she was directed to bring
ate dsco ered that the breach o trust was com- Partes to the
mtted n the deceased trustee s etme such sup- uppementa
pementa b was ed aganst the persona represen-
tat e aone wthout makng the sur ng trustee a
part k .
o where a de endant ded be ore he had appeared
to the orgna b and hs representat e was brought
be ore the ourt b suppementa b and an ob ec-
ton was made that the orgna de endants were not
made partes to t r anceot hadwe . sad
nasmuch as the deceased part ne er had appeared
t was not necessar or the purpose o makng the
sut per ect to e a b o re or aganst hs repre-
sentat es the wa to re e t as aganst them was
b suppementa b and as hs death dd not ater
the nterests o an o the other de endants t was not
necessar to make them de endants to t. gan
a suppementa b be on or the purpose o
brngng a part be ore the ourt upon a g en case
t s su cent to make that nd dua aone a part
wthout makng the other de endants partes thereto
but the suppementa b be ed to brng new ads
be ore the ourt then the od de endants to the
record must aso be made partes to the suppementa
b but here the representat e was made a part n
respect o the antecedent acts upon record. The
ob ecton there ore was o errued .
o where a endor ed a b aganst a purchaser
or spec c per ormance o a contract to purchase an
estate not ha ng herse the power o con e ng the
estate but ha ng obtaned the consent o those who
had the power who howe er were not partes to the
sut and at the hearng she was drected to brng
k empe . Prce 1 39 10 ough . ond 1 41 6
m. 23 . urst 49 51.
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I I
n I I
(m) Salisbury v. Hatcher, 1842, 6J urist, 1051.
Parties to the
Supplemental
Bill.
OJ Imperfections originally
those persons before the Court by supplemental bill;
an 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, broug-ht 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 J ames Wigram, V. C., said,-" The practice
[as toaparty's appearing at the hearing andconsenting
to bebound by the decree] as I collect it from the
decided cases, is, that if a person isnamed as a party
to a bill, and has not appeared, or not even been
served with asubpcena 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 thedecree.
* * * * * The question then is, whether the mort-
gagor ought to have been made a party to the supple-
men tal 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 beparties
to asupplemental bill. If compelled, which I amnot,
to express an opinion upon that point, I should rather
incline to say, that the cases in which the parties tothe
oriainal bill were necessary parties to a supplemental
32
Partes to the tose persons be ore the ourt b suppementa b
upp emen a ob ecton that the purchaser was not made a part
to such suppementa b appears to ha e been o er-
rued the usua re erence to the Master as to tte
beng drected notwthstandng m .
o where a mortgagee o a term o ears ed a b
or an account and or a orecosure or sae o the
mortgaged estate and ha ng omtted to make the
e ecutors o the trustee o the term partes to the
orgna b brought them be ore the ourt b a sup-
pementa b an ob ecton was made that the orgna
de endant the mortgagor was not made a part to
t. ut r ames gram . sad The practce
as to a part s appearng at the hearng and consentng
to be bound b the decree as coect t rom the
decded cases s that a person s named as a part
to a b and has not appeared or not e en been
ser ed wth a subpoena to appear the ourt w wth
the pant s consent permt such part to appear at
the hearng and become a part to the decree b sub-
mttng to be bound b t. ut where the part who
appears at the hearng and o ers to be bound b the
decree s not named as a part to the b the ourt
w not uness wth the consent o a the partes to
the cause permt hm to become a part to the decree.
# # The ueston then s whether the mort-
gagor ought to ha e been made a part to the suppe-
menta b. do not mean to decde an genera
proposton wth respect to the cases whch re ure
that the de endants to an orgna b shoud be partes
to a suppementa b. compeed whch am not
to e press an opnon u on that pont shoud rather
ncne to sa that the cases n whch the partes to the
orgna b were necessar partes to a suppementa
m asbur . atcher 1 42 6 urst 1051.
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33
Original from
Digrtized by
(q) 138, 1Beav. 42, and post,
Chapter XI.
(r) Dyson v. Mtn-rie, 142, 1
Hare, 413.
D
(n) 1832,5 im. 419, and upra.
(0) 1 35, 7 Sim. 290.
(p) 1 39, 10 im. 238, and su-
pra.
bill, were those in which the interests of the original Parties to the
defendants required that such new partie should be S~pplemental
nui.
before the Court, and that the case in which the "-v---I
parties to the original bill were not necessary partie'
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 ay that the de-
ci ion in Greenwood v. Atkinson (n), which wa come
to after argument, was followed in The Attorney Gene-
Tal v. Pearson (0), and in Semple v. Price (p), and wa
not di ap}roved of by Lord Langdale in Feary v.
Stephenson (q). Upon these cases I observe only that
the practice which they establish cannot I ossibly work
injustice in this case. The original and supplemental
causes are heard together. The mortgagor has aright
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 neces ar
parties to the cause. I fthe Court cannot by means of
the original or supplemental bill make such 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 'which the mortgagor has
a right, it is obviou that he has 110 reason to corn-
plain of the form of the record. In thi ca e tlie exe-
cutors of the tru tee are brought before the Court, and
are will ins- to do all which the exigencies of the case
may require, and the ground of objection, except a' a
matter of form, doe. not exi st(1'). '
La tly, Lord Rede dale, Ul on the authority of Lord
inherent in Ole Suit.
b were those n wuc te nterests o the orgna Partes to the
de endants re ured that such new partes shoud be uppementa
be ore the ourt and that the cases n whch the
pares to the orgna b were not necessar partes
to the suppementa b were those n whch the new
partes are brought be ore the ourt n respect o the
nterest o the pant or o the new de endants. t
s su cent howe er n ths case to sa that the de-
cson n Greencood . tknson 71 whch was come
to a ter argument was oowed n 77e ttorne Gene-
ra . Pearson o and n cmpe . Prce and was
not dsappro ed o b ord angdae n ear .
te2 henson . pon these cases obser e on that
the practce whch the estabsh cannot possb work
n ustce n ths case. The orgna and suppementa
causes are heard together. The mortgagor has a rght
to nsst that the decree sha pro de or the recon-
e ance o the estate upon pa ment o the mortgage
mone and t s on or the purpose o such recon-
e ance that the e ecutors o the trustee are necessar
partes to the cause. the ourt cannot b means o
the orgna or suppementa b make suc a decree
as the mortgagor s entted to the sut must a but
the orgna and suppementa b do enabe the
ourt to make the decree to Mhch the mortgagor has
a rght t s ob ous that he has no eason to com-
pan o the orm o the record. n ths case the e e-
cutors o the trustee are brought be ore the ourt and
arc n - to do a whch the e gences o the case
mn re ure and the ground o ob ecton e cept as a
matter o orm does not e st .
ast ord edesdae upon the authort o ord
1332 5 m. 411 and T/ . 1 33 1 ea . 42 and wo
o 1 35 7 m. 290. hapter .
p 1 3 10 m. 233 and s - r D son . Morrs 1 42
pra. are 413.
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Original from
Digitized by
(u) V. C. Wigram, March 27,
1843.
(s) Ld. Red. ed. 4, p. 76.
(t) 3Atk. 217.
Parties to the
Supplemental
Bill.
Hardwicke, lays down the rule that where the object
of the 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 bewanting,
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 (t)."
The case of Jones v. Hoioell (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 solenext 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
J ane M. were the next of kin: J ane, however, had
died before the institution of the suit. I t thus ap-
peared that the personal representative of J ane oug-ht
to have been aparty 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 J ames Wigram,
V. C., allowed the objection.
34
Partes to the ardwcke a s down the rue that where the ob ect
sm. suppementa b s mere to brng orma
partes be ore the ourt as de endants the de endants
to the orgna b need not n an case be made de-
endants to the suppementa b s . n a decree
to account sa s ord ardwcke durng the ac-
count an orma part as trustees shoud be wantng
t s not necessar to make the orgna de endants
partes to the suppementa b nor when the cause
comes on to be reheard can those de endants ob ect
or want o partes 0-
The case o ones . oce u on the other hand
s an nstance o the orgna de endants beng con-
sdered to be necessar partes to the suppementa
b. There the b was ed b the e ecutor o a
deceased ad who was aeged to be the soe ne t o
kn o an ntestate aganst the persona representat e
o that ntestate n order to ha e the estate admns-
tered. re erence was made to the Master on n-
terocutor order to n ure who were the ne t o kn
o the ntestate at the tme o hs decease and the
Master ound that the pant s testatr and one
ane M. were the ne t o kn : ane howe er had
ded be ore the nsttuton o the sut. t thus ap-
peared that the persona representat e o ane ought
to ha e been a part to the sut at the commencement
and accordng the pant ed a suppementa b
aganst a Mr. Godsa who was that persona repre-
sentat e makng no other person a part to the b.
t the hearng an ob ecton was taken b the orgna
de endant that he ought to ha e been made a de en-
dant to the suppementa b and r ames gram
aowed the ob ecton.
s d. ed. ed. 4 p. 76. m . . gram Marc 27
0 3 tk. 217. 1 43.
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Original from
DI gitized by
(x) 1838, 1Beav. 42, and post, supra, in this chapter.
Chapter XI. (z) 1832,5 Sim. 419, andsupra,
(y) 1 42, 1 Hare, 413, and in this chapter.
D2
His Honor observed, that if a decreefor an account Parties to the
were made at the hearing, it would convert Godsall ~ill:lemental
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 begiven at the
hearing' to make adefence, 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 defencewould
benecessary, or that it would be requisite to ask for
leaveto make one. After referring toDyson v. Morris,
already cited, His Honor observed, that where the
new defendant is brought before the Court, only to
conte t aquestion with the plaintiff, theolddefendants
need not beparties; 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 bemade parties :-
that the admission by the plaintiff that some oppor
tunity must be given to the representatives of the in-
testate, to contest J ane's claims, went a great way in
support of the objection. The case of Peary v.
Stephenson (x) also supported it; but in the case of
Dyson v. MorTis (y) His Honor was able to give
all the relief wanted without making the original de-
fendants parties. The difficulties in thesecases arose
where the rights of co-defendants remained to beliti-
gated; for onedecree in both suits would bind the re-
presentatives unjustly. But then the caseof Green-
wood v. Atkinson (z) was cited as an authority to the
35 inherent in tile Suit.
s onor obser ed that a decree or an account Partes to the
were made at te hearng t woud con ert Godsa ementa
nto a pant as aganst the ob ectng de endant and /
et such de endant woud ha e been precuded b the
course o the sut rom makng an de ence aganst
Godsa s cam. bert mght ndeed be g en at the
hearng to make a de ence but then the orgna de-
endant woud ha e the dsad antage o comng un-
prepared to the hearng knowng nothng o the sup-
pementa b and not aware that an de ence woud
be necessar or that t woud be re uste to ask or
ea e to make one. ter re errng to D son . Morrs
aread cted s onor obser ed that where the
ne - de endant s brought be ore the ourt on to
contest a ueston wth the pant the od de endants
need not be partes and that the same was the case
where the new de endant s brought n respect o a
cam made b hm n whch the other de endants
are not concerned but that n other cases he thought
that the od de endants ought to be made partes :
that the admsson b the pant that some oppor-
tunt must be g en to the representat es o the n-
testate to contest ane s cams went a great wa n
support o the ob ecton. The case o ear .
tephenson aso supported t but n the case o
D son . Morrs s onor was abe to g e
a the ree wanted wthout makng the orgna de-
endants partes. The d cutes n these cases arose
where the rghts o co-de endants remaned to be t-
gated or one decree n both suts woud bnd the re-
presentat es un ust . ut then the case o Green-
oood . tknson s cted as an authort to the
s 1 3 1 ea . 42 and post supra n ths chapter.
apter . r 1 32 5 m. 419 and supra
1 42 1 are 413 and n ths chapter.
d2
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Original from
Oi ginzed by
(a) Vi!Jers v. Audley, 1838, 9 Sim. 408.
Subpoena.
"-v----'
Parties to the contrarv. Now each defendant had a right to state
Supplemental ". .
Bill. on the record his whole case agamst every other party;
.__,,_, and Greenwood v. Atkinson did not oppose this doc-
trine, whilst FeaTY v. Stephenson directly supported
it: and. if there was any difference between the pre-
sent decision and the 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,
distinguishes defendants into those having concurrent
interests with the plaintiff, and those having adverse
interests. Adopting this distinction, it. would seem
that, where a supplemental bill is Bled against a new
defendant having a concurrent interest with the plain-
tiff, as in the above case of Jones v. Howell, the old
defendants who have adver e interests to the plaintiff
ought to be made parties to the supplemental bill;
and perhaps it equally follows, that where the new
defendan t is one having an ad verse 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 subpcena 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
ubpcena taken out is a subpcena requiring an answer
to the supplemental bill only Ca). The form of the
~ubpcena is given in t.he Appendix to the General
Orders of 18:33. It is sued out, and served, in the
same manner as an ordinary sub! cena, and if the de-
f ndant i. a Peer, he i served wi th the usual letter
Of Imperfections O1'iginally :36
3
mper ectons orgna
Partes to the
uppementa
.
. ubpoena.
contrar . ow each de endant had a rght to state
on the record hs whoe case aganst e er other part
and Greenwood . tknson dd not oppose ths doc-
trne whst ear . tephenson drect supported
t : and there was an d erence between the pre-
sent decson and te decson n Greenwood . tkn-
son t was not as to the prncpe but as to the app-
caton o t. The ob ecton there ore must be aowed
beng an ob ecton o substance and not mere o
orm.
Mr. Dane n hs treatse on hancer Practce
dstno-ushes de endants nto tose ha na concurrent
nterests wth the pant and those ha ng ad erse
nterests. doptng ths dstncton t woud seem
that where a suppementa b s ed aganst a new
de endant ha ng a concurrent nterest wt the pan-
t as n the abo e case o ones . owe the od
de endants who ha e ad erse nterests to the pant
ought to be made partes to the suppementa b
and perhaps t e ua oows that where the new
de endant s one ha ng an ad erse nterest to the
pant such o the od de endants there are an
as ha e concurrent nterests wth the pant ought
to be partes to the suppementa b.
The subpoena taken out upon the suppementa b
s a subpoena to appear and answer and the suppe-
menta b cas or an answer to the orgna b the
de endant must answer the orgna b athough the
subpoena taken out s a subpoena re urng an answer
to the suppementa b on t - The orm o the
subpoena s g en n the ppend to the Genera
rders o 1 33. t s sued out and ser ed n the
same manner as an ordnar subpoena and the de-
endant s a Peer he s ser ed wth the usua etter
gers . ude 1 3 9 m. 40 .
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Original from
U N I V E R S I T Y 0 F C A L I F OR N I A
Digitized by
solicitors of the parties.
(d) 1 24, 13 Price, 316.
(e) Jones v. Jones, 1745, 3Atk ..
217.
(f) Llewellyn Y. Mackicortti
1-40,2 Atk. 40.
(b) Viqers v. Audley, ubi upra,
(c) Bond Y. Newcastle, 1791,
3 Bro. C. C. 386; and now see
Order III. and XVI. Oct. 1 42;
by which the clerks in Court are
aboli hed, and their dutie, in
these re pect , transferred to the
JIll ive and an office copy of the upplemental bill; ubpoena.
and if the upplemental bill re Iuire him to an w r '-.,----J
the original bill, h must be further served with an
office copy of the orisinal bill, and if Hot so rv d,
proce' for default of answer will be irregular (b). ut
if the defendant is not a Peer, he mu t procure an
officecopy of the supplemental bill, and of the original
bill al 0 if required to be an wered, for himself.
en ice of ubpcena on the clerk in Court in the
original cause, ha been held not to be good service in
the upplemental cau. e(c).
The means of lefence to a U l plemental bill arc Defence.
the same a tho e to an original bill; namelv, de- '-.,----J
murrer , plea, and an weI' .
'I 'h re seems to be 110 other way of making an 1- Objection by
jection to a upplem ntal bill. Thus in Bowyer v, motion in -
gular.
Bright (d) a motion for taking a supplemental bill
off the file for irregularity on the ground that it did
not state upplemental matter, wa refu ed, the 'curt
ob erving that the pro! er cour e in such a ca e -a
to demur. I tha also been said that an objection
for want. of parties (e), or that the supplemental
matter i not newly eli, covered (1),cannot be made at
the hearing, but mu t be taken by plea or demurrer
put in I reviou 'ly to the hearing.
PI a and deruurrers to upplemental bills are ub- Plea and
J
.ect to the same ruIe both with rezard to their form demurrers.
, 0
and ub tance, and to the practice ari ing upon them,
a. plea and demurrer to original bills.
If a defendant to a supplemental bill neither de- Answer.
;j7 inherent in the Suit,
mss e and an o ce cop o the stppenentu b ubpoena
and te suppementa re ures hm to answer
the orgna b he must be urther ser ed wth an
o ce cop o the orgna b and not so ser ed
process or de aut o answer w be rreguar . ut
the de endant s not a Peer he must procure an
o ce cop o the suppementa b and o the orgna
b aso re ured to be answered or hmse .
er ce o subpoenas on the cerk n ourt n the
orgna cause has been hed not to be good ser ce n
the suppementa cause c .
The means o de ence to a suppementa b are De ence.
the same as those to an orgna b name de-
murrers peas and answers.
There seems to be no other wa o makng an ob- b ecton b
ecton to a su ementa b. Thus m o er .
rght d a moton or takng a suppementa b
o te e or rreguart on the ground that t dd
not state suppementa matter was re used the ourt
obser ng that the proper course n such a case was
to demur. t has aso been sad that an ob ecton
or want o partes e or that the suppementa
matter s not new dsco ered / cannot be made at
the hearng but must be taken b pea or demu-rer
put n pre ous to the hearng.
Peas and demurre s to suppementa bs are sub- peas and
ect to the same rues both wth regard to ther orm demurrers.
and substance and to the practce arsng upon them
as peas and demurrers to orgna bs.
a de endant to a suppementa b neter de- nswer.
b gers . ude ub supra. soctors o the partes.
c ond . ewcaste 1791 d 1 24 13 Prce 31 .
3 ro. . . 3 6 and now see e ones . ones 1745 3 tk..
rders . and . ct. 1 42 217.
b whch the cerks n ourt are / ewe n . Mackwortt
aboshed and ther dutes n 1740 2 tk. 40.
these respects trans erred to the
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Original from
Digitized by
Defence. 111ur8nor pleads to it, he must answer 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 incl ude 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). I t appears, however, that the an-
swers may be separated if the defendant prefers it (i).
Process. The process for compelling appearance and answer
to asupplemental 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 SUI plemental
(g) 3Dan. Ch. Pro 184. (i) Sayle v. Graham, 1831, 5
(h) Viyers v. Audley, 1838, 9 Sim, 8.
Sim.408.
38 Of Imperfections originally
3
mer econs orgna
De ence. murs nor peads to t he must ans ser t as n the
case o an orgna b. howe er there s an
matter n the suppementa b whch s proper the
sub ect o demurrer or pea the de endant ma b hs
answer cam the same bene t o t as he woud ha e
been entted to he had put t n b wa o de-
murrer or pea g .
The orm o an answer to a suppementa b and
the manner o puttng t n and ng t are the same
as n the case o an answer to an orgna b.
here a de endant to a suppementa b s caed
upon to answer the orgna b aso the usua prac-
tce s to ncude the answer to the orgna b and
the answer to the suppementa b n the same
answer. The answer s then nttued as the answer
to both bs h . t appears howe er tat the an-
swers ma be separated the de endant pre ers t .
Process. The process or compeng appearance and answer
to a suppementa b s the same as that whch s n
use wth respect to orgna bs and the same prac-
tce obtans n regard to e ceptons to answers.
here one o two de endants ha ng aed to put
n hs answer to the orgna b was attached and
sent to a but was a terwards dscharged though
not brought up under ugden s ct and no urther
proceedngs were then had aganst hm and a ter
decree the pant s ed a suppementa b aganst
hm to whch he appeared but put n no answer
whereupon another attachment ssued aganst hm
and utmate the b was taken pro con esso aganst
hm an ob ecton that the cause had not been pro-
per brought to a hearng aganst hm the pant s
ha ng proceeded aganst hm on the suppementa
Graham 1 31 5
3 Dan. h. Pr. 1 4.
h ers . ude 1 3 9
m. 40 .
a e
m. .
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Original from
Digitized by
bill only, was overruled, the decree in the upplemen- Defence.
tal suit reciting that it had become impossible to go ~
on with the original decree (h).
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 ca e
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 (l). From
this case it must, it is presumed, be inferred that
when the supplemental bill brings a newparty 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 beproved, ~
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, Interrogate-
then if no witnesses have been examined on interro- des.
gatorie exhibited in the original cause, interrogato-
ries may be exhibited and witnesses examined a to
the matters in issue in the original suit, and also those
in i sue in the supplemental suit, at the same time em).
If witnesses have been already partly examined on
interrogatories exhibited in the original suit, the
(k) Hugltson v. Cookson, 1839, Madd.427.
3Y. & ceu. E. E. 579. (m) 3 Dan. Ch. Pro 186.
(l) Catton v. Cm'lisle, 1820, 5
39
b on was o errued the decree n the supperaen- De ence.
ta sut rectng that t had become mpossbe to go
on wth the orgna decree t .
The suppementa cause ma be ether set down to epcaton
be heard on b and answer or a repcaton ma be
ed and a subpoena to re on ser ed as n the case
o an orgna b.
hen the suppementa b ntroduces suppemen-
ta matter mere to sustan the ree sought b the
same pant rom the same de endant as b the
orgna b t has been sad that there s on one
record one repcaton and one cause to be set down
so that there has been no repcaton n the orgna
sut a genera repcaton w app to the whoe
record and not mere to the orgna b . rom
ths case t must t s presumed be n erred that
when the suppementa b brngs a new part be ore
the ourt be ore a repcaton has been ed n the
orgna sut such repcaton w not e tend to the
suppementa sut.
the new matter n the suppementa b s not dence
admtted b the de endant s answer t must be pro ed
otherwse the suppementa b w be dsmssed wth
costs. Ths proo must be obtaned b the e amna-
ton o wtnesses as n the case o an orgna b.
pubcaton has not passed n the orgna sut nterrogato-
then no wtnesses ha e been e amned on nterro-
gatores e hbted n the orgna cause nterrogato-
res ma be e hbted and wtnesses e amned as to
the matters n ssue n the orgna sut and aso those
n ssue n the suppementa sut at the same tme .
wtnesses ha e been aread part e amned on
nterrogatores e hbted n the orgna sut the
k ug son ookson 1 39 Madd. 427.
3 . o. . . 579. h 3 Dan. h. Pr. 1 6.
0 atton . arse 1 20 5
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n n If m
DI I ized b
burne v. Hussey, 1792, 2 Ridg. P.
C. 504 ; Forum Rom. 109.
(P) 1836, 1 Keen, 685.
(n) 3 Dan. Ch. Pro 186.
(0) Bagnall v. Bagnall, 1725,
12 Vin. Ab. 114, pl. 9 j Cock-
Evidence. Court will on motion give leave to add to those inter-
rogatories; but such new interrogatories must con-
tain nothing but what relates to the supplemental
suit (n).
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 (0).
If interrogatories 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 snits (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 original snit were allowed to
be read at the hearing of bothcauses. But it isappre-
hended 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 snits. 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 newdefendant 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
40 Of Imperfections originally
dence. ou t w moton g e ea e to add to those nter-
rogatores but such new nterrogatores must con-
tan nothng but what reates to the suppementa
sut n .
pubcaton has passed n the orgna sut sepa-
rate nterrogatores must be e hbted n the suppe-
menta sut whch must be strct con ned to the
new matter and not e tend to matters n ssue n the
orgna sut and an wtnesses are e amned as to
such matters ther depostons cannot be read at the
hearng o .
nterrog-atores ha e been e hbted and e dence
taken n the orgna sut be ore the ng o the sup-
pementa b such e dence ma be made use o n
both suts athough o course not nttued n both
suts because a suppementa sut s mere a con-
tnuaton o the orgna sut. Thus n Ges . Ges p
depostons taken n the o gna sut were aowed to
be read at the hearng o both causes. ut t s appre-
ended that the e dence taken n the orgna sut
w be good as aganst the partes to the orgna sut
on and not as aganst an new part who ma be
brought be ore the ourt b the suppementa b.
the nterrogatores are e hbted a ter the ng
o the suppementa b the must be nttued n
both suts. n ths case howe er nterrogatores
are e hbted b an o the orgna de endants who
are no partes to the suppementa b the ma n-
ttue them n the orgna cause on but the
ha e oned wth the new de endant n the commsson
to e amne wtnesses or the ha e consented to the
order or such commsson the nterrogatores and de-
postons must be nttued n both suts oowng the
w 3 Dan. h Pr. 1 6. ntrne . usse/ 1/92 2 dg. P.
o agna . agna 1725 . . 104 orum om. 109.
12 n. b. 114 p. 9 ock- p 1 .6 1 een 0 5.
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Original from
Digitized bv
Sim, 167.
(8) Ld. Red. ed. 1, p. 75.
(q) Pritchm'd v, Foulkes, 1839,
2 Beav. 133.
(r) Baillie Y. Jackson, 1 39, 10
title of the commi sion, or the depositions will be Evidence.
suppressed (q). '--v---J
If, before the filing of the supplemental bill, the Whether the
.. 11'111 1 db d ]'11 d new defendant
origmar m ias proceec e eyon )1 an answer, so is bound b the
that witnes es ha e been examined, orders made on former pro~_,
. 1 d hI ' .. ceeding .
mot.IOTI, or a cecree ma e at t e learll1g, It IS appre-
hended that any new defendant who may be brought
forward by the supplemental bill, is in no wise bound
by uch proceeding , having had 110 opportunity of
canvassing them; but that they mu t 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 hi 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 again t 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 Ma tel', in this case, to adopt any of
the former account, if he should judge them to be
beneficial to the infan t (1').
I f there has been no decree in the original suit before Hearing
the filing of the supplemental bill, both suit will be ~
hearrl together, and there will be one decree made
in both suit (8); but if there has been a decree in the
original uit before the filing of the supplemental bill,
then a new decree mu t be made in the supplemental
uit; for which purpose the supplemental uit mu t
be set down alone; or if there has been a decree III
tte o the commsson or the depostons . be dence
suppressed / .
be ore te ng o the suppementa b the hether the
orgna b has proceeded be ond b and answer so sTound b -The
that wtnesses ha e been e amned orders made on ormer pro-
moton or a decree made at the hearng t s appro-
hended that an new de endant who ma be brought
orward b the suppementa b s n no wse bound
b such proceedngs ha ng had no opportunt o
can assng them but that the must a be repeated
aganst such new de endant uness he w consent to
be bound b them. Thus where certan mortgage
and udgment credtors ed a b or pa ment o
ther debts out o the estates o ther deceased debtor
whch he had de sed to hs son or e wth remander
to hs son s chdren n ta and a ter a decree or an
account and an order on urther drectons the pan-
t s dsco ered that a tenant n ta had been born
be ore the ng o the orgna b and ed a sup-
pementa b aganst hm t was hed that the
n ant was not bound b the accounts taken but that
the must be taken o er agan. bert howe er
was g en to the Master n ths case to adopt an o
the ormer accounts he shoud udge them to be
bene ca to the n ant r .
there has been no decree n the orgna sut be ore
the ng o the suppementa b bot suts w be
heard together and there w be one decree made
n both suts .s but there has been a decree n the
orgna sut be ore the ng o the suppementa b
then a new decree must be made n the suppementa
sut or whch purpose the suppementa sut must
be set down aone or there has been a decree n
Prtchard . oukes 1 39 m. 167.
2 ea . 133. d. ed. ed. 1 p. 75.
r ae . ackson 1 30 10
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Origin I fr i1
Oi It I d by
(t) Ld. Red. ed. 4, p. 75 ; and (u) Seton, 386.
Seton, 3 6.
42 Of Imperfections originally inherent in the Suit.
Hearing the original suit, which is not final, it may be set down
.._a_nd __D,-ec_re_e_. to be heard with the original suit on further direc-
tions (t)~
When the supplemen tal suit is to be heard with the
original suit, the Court will, on application, order the
former to be advanced (u).
42 mpe ectons orgna nherent n the ut.
earng te rgna sut whch s not na t ma be set down
an ecree. heard wth the orgna sut on urther drec-
tons t .
hen the suppementa sut s to he heard wth the
orgna sut the ourt w on appcaton order the
ormer to be ad anced .
0 d. ed. ed. 4 p. 75 and 00 eton 3 6.
eton 3 G.
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Original from
Digitized by
THE reversal of a decree on the statement of supple- Nature of
mental matter omitted in the original bill, although ~
properly included in that part of our subject which
treats of imperfections originally inherent inthe frame
of a suit, yet being ubject 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.
I t may happen that after a decree has been pro-
nounced in acause, a party aggrieved by the decree
may di cover ~ewmatter of such anature as would in
his opinion have materially influenced the decree, if it
had been brought before the Court in due time. The
decreemay beright with reference tothematter before
the Court, so as to preclude appeal, and yet it may be
unjust, because founded on false or incomplete p1'e-
1111 e. When this i the case the rules of the Court
furnish means of 1ringing 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 theplaintiff,
the orni sionof thesupplemental matter inthe original
hill may properly be ranked among those specie of
imperfection 'whichare originally inherent in the suit;
OF THE REVERSAL OF DECREES ON SUPPLEME~TAL
MATTER.
CHAPTER III.
43
43
PT .
T D PP M T
M TT .
The re ersa o a decree on the statement o suppe- ature o
menta matter omtted n the orgna h athough the emed .
proper ncuded n that part o our sub ect whch
treats o mper ectons orgna nherent n the rame
o a sut et beng sub ect to certan condtons not
mposed n respect o other ob ects or whch the
sort o b we are now dscussng ma be ed w
be consdered wth more con enence n a separate
chapter.
t ma happen that a ter a decree has been pro-
nounced n a cause a part aggre ed b the decree
ma dsco er new matter o such a nature as woud n
hs opnon ha e matera n uenced the decree t
had been brought be ore the ourt n due tme. The
decree ma be rght wth re erence to the matter be ore
the ourt so as to precude a pea and et t ma be
un ust because ounded on ase or ncompete pre-
mses. hen ths s the case the rues o the ourt
urnsh means o brngng the new matter be ore t
and o obtanng an e amnaton and re ersa or cor-
recton o the decree proper.
the part aggre ed b the decree s ant
the omsson o the suppementa matter n the orgna
b ma proper be ranked among those 5 eces o
mper ecton whch are orgna nherent n the sut
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Original from
Oi gitized by
view ; Carrington v, Holly, 1755,
cite-d Dick. 612.
(b) Order, Oct. 17, 1741, 2Atk.
139.
(a) Standish v. Radley, 1741,
2 Atk. 178. A defendant may, jf
he pleases, enrol a decree, in order
to enable him to bring a bill of re-
but if the party aggrieved is a defendant, the omission
of the supplemental matter in his answer can hardly
be termed an imperfection originally inheren t in the
suit. As, however, the remedy for such omission is
the same whether made use of by plaintiff or defen-
dant, the doctrine, in either case, respecting the rever-
sal of decrees on discovery of new matter, may \"ery
properly be considered in the present treatise.
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
altered or reversed upon arehearinq of the cause; and
in this case a supplemental bill must be filed to bring
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.
Before we consider the form of the supplemental
bill, it must be premised that such a bill cannot, any
1110rethan 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
granted without an affidavit that the new matter
could not be produced 01' used by the party claiming
the benefit of it, in the original cause. The affidavit
Of the Reversal of Decrees
Affidavit.
Leave of the
Court.
Rehearing and
supplemental
bill in nature
of a bill of
review.
Bill of review.
Nature of
the Remedy.
'--.---J
44
44 the e ersa o Decrees
ature o but the part aggre ed s a de endant the omsson
t g emec . 1 suppementa matter n hs answer can hard
be termed an mper ecton orgna nherent n the
sut. s howe er the -emed or such omsson s
the same whether made use o b ant or de en-
dant the doctrne n ether case respectng the re er-
sa o decrees on dsco er o new matter ma er
prope- be consdered n the present treatse.
o re ew. the decree has been sgned and enroed whereb
t has become a record o the ourt whch practce
howe er has near aen nto dsuse the part wsh-
ng to re erse t attans hs ob ect b ng a new b
caed a b o re ew a and as ths b pra s that
the decree ma be re ewed and re ersed and s heard
ndependent as t were o the orgna b t s
usua ranked among orgna bs and s there ore
oregn to the sub ect o ths treatse. ut the
decree has not been sgned and enroed t ma be
ehearng and ate ed or re ersed upon rehearng o the cause and
b rnature suppementa b must be ed to brng
o a b o orward the new matter and make the orgna cause
per ect. uch a suppementa b s caed a suppe-
menta b n the nature o a b o re ew.
ea e o the e ore M e consder the orm o the suppementa
ourt. . g 3 premsed that such a b cannot an
more than a b o re ew be ed wthout the ea e
o the ourt b and ths ea e s to be obtaned b a
petton presented or that purpose and w not be
da t. granted wthout an a da t that the new matter
coud not be produced or used b the part camng
the bene t o t n the orgna cause. The a da t
a andsh . udc 1741 ew arrn ton . o 1755
2 tk. 17 . de endant ma cted Dck. 612.
he peases enro a decree n order b rder ct. 17 1741 2 tk.
to enabe hm to brng a b o re- 139.
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Original from
Digitized by
(e) 1828,5 Russ. 195; Reg. Lib.
1827, B. fo1. 2249.
(f) Hodson v. Ball, 1842, 1
Phil!. 177, affirming S. C. 1841,11
Sim. 456.
(g) Moore v. MoO1'e , 1755, 2Yes.
sen. 598.
(h) Llewellyn v. Mackicorth,
1740,2 Atk. 40; Siandish v. Rad-
ley, 1741, 2 Atk. 177.
(c) Ld. Red. ed. 4, p. 84. For
precedents of the petition, affi-
davit, and order, seethe Appendix,
Nos. IV. V. and VI. There must
also be a deposit, which, with the
del osit upon obtaining a rehearing
of the decree, shall make up 50l.
Order, Oct. 17,1741; 2A tk, 139;
Anon. 1725,2 P. W. 283; Louvier
v. C10S8, 1753, Dick. 223.
Cd) 17:}5, 2 Anst. 551.
mu t also state the new matter intended to be brought Nature of
o d I t1 t t1 Ct . the Remedy
rorwar , more er ia ie our may exerci C Its "---.,----I
judgment upon its relevancy and materiality (c).
In I-lyde 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. Usborne (e), where
the prayer of the petition was for leave to le 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. I t is
apprehended, however, that the more correct vvay
would be to state, in the petition, whether the lecree
has been enrolled 0]' not, and to say 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 (f).
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 natu re 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 (lz). The prayer that the Respective
decree may be reviewed and reversed is made by the ~~~ft~~~ ~~~he
petition of rehearing, and the supplemental bill in s~pp1emental
un.
45 on Supplemental Matter.
on uppementa Matter.
45
must aso state the new matter ntended to be brought ature o
orward n order that te ourt ma e ercse ts .
udgment upon ts ree anc and materat c .
n de . Donne d t s sad that a petton or
a rehearng or or ea e to e a b o re ew s bad
or uncertant . ut n Partrdge . shorne e where
the pra er o the petton was or ea e to e a b
o re ew or a suppementa b n the nature o a
b o re ew as the pettoner shoud be ad sed
the order was made accordng to the pra er. t s
apprehended howe er that the more correct wa
woud be to state n the petton whether the decree
has been enroed or not and to sa post e whch
sort o b t s wshed to e.
the b s ed wthout the ea e o the ourt
the proper course s to mo e that t ma be taken o
the e or rreguart / .
The ea e o the ourt ha ng been obtaned the
person wshng to correct the decree must present the
usua petton or a rehearng o the cause : and
on ths petton beng answered he must e the sup-
pementa b n the nature o a b o re ew or the
purpose o brngng the new matter be ore the ourt
and supp ng the de ect whch occasoned the wrong-
decree n the ormer sut h . The pra er that the espect e
decree ma be re ewed and re ersed s made b the petton and
petton o rehearut- and the sunnementn b n suppementa
b.
c d. ed. ed. 4 p. 4. or
precedents o the petton a -
da t and order seete ppend
os. . . and . Tere must
aso be a depost whch wth te
depost upon obtanng a rehearng
o the decree sha make up 50/.
rder ct. 17 1741 2 tk. 139
no7. 1725 2 P. . 2 3 ouMer
. ross 17.- 3 Dck. 223.
d 17: 5 2 nst. 551.
e 1 2 5 uss. 195 eg. b.
1 27 . o. 2249.
/ odson . a 1 42 1
P. 177 a rmng . . 1 41 11
m. 45G.
g Moore . Moore 1755 2 es.
sen. 59 .
ere n . Mack orth
1740 2 tk. 40 tandnh . ad-
e 1741 2 tk. 177.
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Original 1rom
['I I omzed by
(l) Tirrel v. Moreton, 1669,
1C. C. 123; Hartwell v. Towns-
end, 1768, 2Bro. P. C. 107.
(m) Glover v. Portingion, 1664,
Freem. 182; sed contra, S. C. 1
C. C. 53; and Vendebende v. Le-
vingston, 16i4, 3Swanst. 625.
(n) Webb v. Webb, 16i6, 3
Swanst, 658.
(i) Ld. Red. ed. 4, p. 92; Moore
v. Moore, 1755, 2Ves. sen. 596;
Dick. 66 ; Perry v. Phelips, 1809,
17 Ves. 177.
(k) For precedents of the peti-
tion for rehearing, and the supple-
mental bill in the nature of a bill
of review, see the Appendix, Nos.
VII. and VIII.
Nature of nature of a bill of review merely prays that the cause
the Remedy. b h d . h h
~ may e ear WIt respect to t e new matter at the
same time as it is reheard upon the original bill, and
that the plaintiff may have such relief asthe nature of
the case made by the suppiemental bill requires (i).
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 R U p-
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.
I t appears that a bill of review cannot be filed by
the assignee or devisee of any party to the suit, for
want of privity (l); 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
Of the Reversal of Decrees 46
ature o nature o a b o re ew mere pra s that the cause
t - a 3e heard wth respect to the new matter at the
same tme as t s reheard upon the orgna b and
that the pant ma ha e such ree as the nature o
the case made b the suppementa b re ures
t s not stated n an o the cases or n an o the
books o practce whether the petton or rehearng-
s to be presented be ore or a ter the ng o the sup-
pementa b : but rom the nature o the respect e
pra ers o the petton and suppementa b t s
apprehended that the petton o rehearng must be
presented . e. e t wth the secretar and answered
be ore the ng o the suppementa b n the na-
ture o a b o re ew t .
though as we ha e seen bs o re ew on ds-
co er o new matter are not proper wthn the
mts o ths treatse et as the rues and prncpes
appcabe to those bs are or the most part e ua
appcabe to suppementa bs n nature o bs o
re ew we sha n the course o ths chapter ha e
occason to notce much o the practce respectng the
ormer sort o b as we as that whch s pecuar
to the atter sort.
t appears that a b o re ew cannot be ed b
the assgnee or de see o an part to the sut or
want o pr t nor can t be ed b a part n
whose a our the decree was pronounced m nor
the decree was taken b consent n nor w t e
0 d. ed ed. 4 p. 92 oore Trre . Moreton 1669
. Moore 1755 2 es. sen. 596 1 . . 123 artwe . Towns-
Dck. 66 Perr . Pheps 1 09 end 176 2 ro. P. 107.
17 es. 177. w Go er . Portngon 664
k or precedents o the pet- reem. 1 2 sed contra . . 1
ton or rehearng and the suppe- . . 53 and endebende . e-
menta b n the nature o a b ngston 1674 3 wanst. 25
o re ew see the ppend os. m ebb . ebb 1676 3
. and . wanst. 65 .
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Original from
Digiti zed by
(P) Ord v, Noel, 1821, 6 Madd.
127.
(q) Viele Portsmouth v. Effing-
ham, 1750, 1Yes. sen. 430.
(n) Carlisle v. Globe, 1659, 3
C. Rep. 9'1; Nels. 52 ; Freem. 148.
(0) Bennet v. Lee, 1742, 2 Atk.
529.
against persons who were not parties to the original Nature of
bill (n). the Remedy.
The new matter must be relevant; for its being new Conditions
matter merely will not warrant a bill of review (0). ~
It must also be material, and such as, if unanswered, Thenewmatter
would clearly entitle the party bringing it to a decree ~~~a~~ ~~lh
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 (p).
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 affect 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 1Yes. sen. (q). I shall therefore refuse the
application, and, upon the plaintiff's appeal, if the
47
on Supplemental Matter.
on uppementa Matter. 47
aganst persons who were not partes to the orgna ature o
b . the emed .
The new matter must he ree ant or ts beng new ondtons
matter mere w not warrant a b o re ew o . the .
t must aso be matera and such as unanswered Te new matter
woud cear entte the part brngng t to a decree e ant and
n hs a our or at east rase a ueston o such matera.
ncet and d cut as to be a t sub ect o udgment
n a cause. There ore where a purchaser ed a b
or spec c per ormance o a contract or sae whch
was dsmssed and a terwards dsco ered certan
deeds made between the endor and a thrd part
treatng the contract as ad t was hed that ths
new matter dd not warrant the purchaser n ng a
suppementa b n the nature o a b o re ew 9 .
here the ouse o ords on appea re ersed a
decree n the ourt beow and an appcaton to the
ouse o ords or ea e to e a suppementa b n
nature o a b o re ew was remtted to the ourt
beow because t had been made to the ords org-
na and not on appea. ord hanceor Manners
sad must be sats ed that the new acts sought
to be put n ssue are such as w matera a tect the
grounds upon whch the ords order was made.
en ga e permsson to e ths b st
brought to a hearng coud not g e ree on t. s
do not know the grounds on whch the ouse o
ords decded do not see how the act sought to be
put n ssue coud be brought under ord ardwcke s
rue n 1 es. sen. . sha there ore re use the
appcaton and upon the pant s appea the
n arse . Goe 1659 3 p rr . oe 1 21 6 Madd.
. ep. es. 52 reem. 14 . 127.
o ennet . ee 1742 2 tk. de Portsmouth . ng-
529. ham 1750 1 es. sen. 430.
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On inal from
DI gI tI zed by
(t) 1677, Freem. 31.
(u) 1742, Amb. 587.
(x) 1743, 3 Atk. 34.
(r) Blake v. Foster, 1824, 2
Moll. 357.
(s) Beames's Orders, p. 1.
Conditions House of Lords decides in his favour, the materiality
~ of the newly discovered facts will be established (r)."
Whether the The cases seem to be contradictory as to whether
newmatter the new matter introduced into the bills in question
maychangethe ..
issueor not. may be such as constitutes a new Issue, or not. From
some cases it would appear that the new matter must
constitute a new issue. From others it would appeal'
that the new matter may either constitute a newissue,
or be further evidence of matter already in issue.
Whilst others again seem to shewthat the newmatter
can only be further evidence of matter already in
issue, and must not constitute a new issue.
In Lord Bacon's first Ordinance (s) 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 begrounded."
In an anonymous case in Freeman's Reports (t) 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 shall never
have a bill of review. But where anew fact is alleged,
that was not at the former hearing', there it may be
ground for a bill of review."
In TIle A ttorney Gen. v. Turner (zz)written evidence
wa allowed to be brough t forward by bill of review
to contradict the testimony of a witness in the suit.
In Norris v. Le Neve ex) Lord Hardwicke say~,
"The present application i for leave to bring in a
bill in the nature of a bill of review; and this is said
ondtons ouse o o ds decdes n hs a our the materat
o the . 1 g dsco ered acts w be estabshed r .
hether the 1 he cases see to be contradctor as to whether
new matter the new matter ntroduced nto the bs n ueston
ma change the . t
ssue or not. a be such as consttutes a new ssue or not. rom
some cases t woud appear that the new matter must
consttute a new ssue. rom others t woud appear
that the new matter ma ether consttute a new ssue
or be urther e dence o matter aread n ssue.
hst others agan seem to shew that the new matter
can on be urther e dence o matter aread n
ssue and must not consttute a new ssue.
n ord acon s rst rdnance 5 t s sad that
there ma be a re ew upon new matter whch hath
arsen n tme a ter the decree and not an new proo
whch mght ha e been used when the decree was
made ne ertheess upon new proo that has come
to ght a ter the decree made and coud not poss-
b ha e been used at the tme when the decree
passed a b o re ew ma be grounded.
n an anon mous case n reeman s eports 0 t
s sad that where a matter o act was partcuar
n ssue be ore the ormer hearng though ou ha e
new -proo o that matter upon that ou sa ne er
ha e a b o re ew. ut where a new act s aeged
that was not at the ormer hearng there t ma be
ground or a b o re ew.
n The ttorne Gen. . Turner wrtten e dence
was aowed to be brought orward b b o re ew
to contradct the testmon o a wtness n the sut.
n orrs . e e e ord ardwcke sa s
The present appcaton s or ea e to brng n a
b n the nature o a b o re ew and ths s sad
r ake . oster 1 24 2 0 1677 reem. 31.
Mo. . 57. u 1742 mb. 5 7.
.s eames s rders p. 1. 1743 3 tk. 34.
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Original from
Digitized by
E
(a) 1750, 1Yes. sen. 430.
(b) 1809, 16Yes. 348, 350; and
see Willan v. wuu, 1809, ib. 72.
(y) 1742, 2 Atk. 379. But ap-
parently not reported as to the
point now in discussion.
(z) 1755, Amb. 292.
to befounded upon newmatter, not at all inissueinthe Conditions
I .' h' h ., b t of the Bill.
rormer cause, or upon matter W IC was 1111 sue, u '----..---I
discovered since the hearing of thecause. Upon these
rules I doallowthat bills of reviewhavebeen 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 seeno alteration, and, therefore, the
rules I shall judge by in the present casemust be the
ancient ones. Lord Bacon's rules havenever been de-
parted from since the making of them. By the esta-
blished practice of the Court there are two sorts of
bil1sof 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(a) was so. He claimed under
anoldentail; andthough heafterwards made titleunder
adifferent entail, yet the issue was as claiming under
someoldentail generally. In the present caseit is not
newmatter toprove what wasput in issue, but toprove
a title that was not in issue; and, therefore, the de-
fendant would not be entitled to abill of review."
In Young 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-
to be ounded upon new matter not at a n ssue n the ondtons
ormer cause or upon matter whch was n ssue but
dsco ered snce the hearng o the cause. pon these
rues do aow that bs o re ew ha e been granted
or though t has been sad that these were ared b
the orders that were made n the cause o Montgomer
ark et see no ateraton and there ore the
rues sha udge b n the present case must be the
ancent ones. ord acon s rues ha e ne er been de-
parted rom snce the makng o them. the esta-
bshed practce o the ourt there are two sorts o
bs o re ew one ounded on supposed error ap-
pearng n the decree tse the other on new matter
whch must arse a ter the decree or upon new proo
whch coud not ha e been used at the tme o the de-
cree passed.
n Paterson . aughter . ord ardwcke sa s
the bs o re ew recoect to ha e known
were o new matter to pro e what was put n ssue.
ord ngham s case was so. e camed under
an od enta and though he a terwards made tte under
a d erent enta et the ssue was as camng under
some od enta genera . n the present case t s not
new matter to pro e what was put n ssue but to pro e
a tte that was not n ssue and there ore the de-
endant woud not be entted to a b o re ew.
n omg . egh b ord don sa s The
ground o a b o re ew s error apparent on the
ace o the decree or new e dence o a act mate-
ra pressng upon the decree and dsco ered at
east a ter pubcaton n the cause. the act had
been known be ore pubcaton though some contra-
1742 2 tk. 379. ut ap- a 1750 1 es. sen. 430.
parent not reported as to the t 1 09 es. 34 350 and
pont now n dscusson. see an . an 1 09 b. 72.
1755 rab. 292.
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Original from
Digitized by
(d) 1828, 5Russ. 195. (c) 1814,2 B. &B. 457.
Conditions diction appears in the cases, there is no authority that
,-o_f_th-.e,_B_ill_._,new evidence would not besufficient 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 caseof Blake v. Foster (c).
But from Partridge v. Usborne(d) it appears, that
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 abill of review. In that
caseapurchaser, adefendant 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 Mastel' reporting in favour of the
title, a decree for specific performance was made.
After the order for the reference the defendant found
that the timbel' 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 filea 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
bill of review they can examine to nothing that was
ondtons dcto appears n the cases there s no authort that
o the . g e dence woud not be su cent ground. gan :
s ar as can ascertan what the ourt permts
wth regard to bs o re ew on acts new ds-
co ered the decson appears to ha e been on new
e dence whch produced n tme woud ha e sup-
ported the orgna case and ths s not appcabe
where the orgna case does not admt the ntroduc-
ton o the e dence as not beng put n ssue org-
na . The same opnon was aso e pressed b ord
Manners n the case o ake . oster c .
ut rom Partrdge . shorne d t appears tat
matter dsco ered a ter the decree though not capabe
o beng used as e dence o an thng whch was
pre ous n ssue n the cause but consttutng an
entre new ssue ma be the sub ect o a suppe-
menta b n the nature o a b o re ew. n that
case a purchaser a de endant n a sut or spec c per-
ormance o a contract or sae o an estate b hs
answer nssted mere that a good tte to the pro-
pert coud not be shewn but dd not menton an
warrant g en or representatons made b the en-
dor and on the Master reportng n a our o the
tte a decree or spec c per ormance was made.
ter the order or the re erence the de endant ound
that the tmber on the estate had been ase est-
mated n a statement whch he aeged had been war-
ranted at the sae but whch warrant was dened b
the other sde and ea e was g en to the de endant
to e a suppementa b n the nature o a b o
re ew to ha e the same bene t o the aeged war-
rant as he had nssted on t n hs answer.
n Gbert s orum omanum t s sad that n
bs o re ew the can e amne to nothng that was
c 1 14 2 . .457. d 1 2 5 uss. 195.
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Original from
Digiti zed by
E 2
(f) Ld. Red. ed. 4, p. 85. (e) For. Rom. p. 186.
in the original cause, unles it be matter happening' Conditions
of the Bill.
subsequent, which was not before in is ue, or upon '---,~_
matter of record or writing' not known before; for if
the Court should 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 abill 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. "I t has
beenquestioned," saysHis Lordship . r " whether the
discovery of new matter not in issue in the cause in
which a decree has been made, could be the ground.
I
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, canrarely happen inwhich 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 arevocable deed, a deed of revoca-
tion and new limitations were discovered, as it would
be anecessary 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 ettlement 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
n the orgna cause uness t be matter happenng ondtons
subse uent whch was not be ore n ssue or upon .
matter o record or wrtng not known be ore or
the ourt shouk g e them ea e to enter nto proo s
upon the same ponts that were n ssue that woud be
under the same msche as the e amnaton o wt-
nesses a ter pubcaton and an net nto man est
per ur e .
ast the opnon o ord edesdae seems to be
that a b o re ew w e n ether case whether
the new matter consttutes a new ssue or s mere
urther e dence o matter aread n ssue. t has
been uestoned sa s s ordshp / whether the
dsco er o new matter not n ssue n the cause n
whch a decree has been made coud be the ground
o a b o re ew and whether the new matter on
whch bs o re ew ha e been ounded has not
awa s been new matter to be used as e dence to
pro e matter n ssue n some manner n the orgna
b. case ndeed can rare happen n whch new
matter dsco ered woud not be n some degree e -
dence o matter n ssue n the orgna cause the
peadngs were proper ramed. Thus a ter a de-
cree ounded on a re ocabe deed a deed o re oca-
ton and new mtatons were dsco ered as t woud
be a necessar aegaton o tte under the re ocabe
deed that t had not been re oked the ueston o
re ocaton woud ha e been n ssue n the orgna
cause the peadngs had been proper ramed. o
a ter a decree ounded on a supposed tte o a
person camng as her a settement or w were ds-
co ered whch destro ed or ua ed that tte t
woud be a necessar aegaton o the tte o the
person camng as her that the ancestor ded
e or. om. p. 1 6. / d. ed. ed. 4 p. 5.
2
o the .
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Original from
Digitizedby
Conditions seised in fee simple and intestate. But if a case
~ were to arise in which the new matter discovered
could not be evidence of any matter in issue in the
original cause, and yet clea.rly demonstrated error in
the decree, it should 'seem that it might be used as
g'J 'oundfor a bill of rex iew, if relief could not other-
wi e be obtained. I t is scarcely possible, however,
that such a case hould arise, which might not be
deemed, in some degree, acase of fraud, and the de-
cree impeachable on that ground. In the case where
the doubt before mentioned appears to have been
~tated, the new matter discovered and alleged as
ground for abill of review was a purchase for valuable
consideration without notice of the plaintiff's title.
This could only be used as a defence; and it seems
to have been thought, that although it might have
been propel' under the circumstance, if the new mat-
ter had been discovered before the decree, to have
allowed the defendant to amend his an wer and put
it in is ue, yet it could not be made the subject of
a bill of review, becau e it created no title para
monnt to the title of the plaintiff, but merely aground
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
word of the articles, had made the husband tenant
for life, with remainder to the heirs male of hi bod)
and the husband, claiming as tenant in tail under the
settlement, bad 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 again t the son, the son after-
wards, on discovery of the articles, brought a bill to
have the ettlement rectified according to the articles,
and a decree wa made a cordingly. In thi ca e the
ondtons sesed ee sn e and ntestate. ut a case
t t ae . g .g arse n whch the new matter dsco ered
coud not be e dence o an matter n ssue n the
orgna cause and et cear demonstrated error n
the decree t shoud seem that t mght be used as
2 round or a b o re ew ree coud not other-
wse be obtaned. t s scarce possbe howe er
that such a case shoud arse whch mght not be
deemed n some degree a case o raud and the de-
cree mpeachabe on that ground. n the case where
the doubt be ore mentoned appears to ha e been
stated the new matter dsco ered and aeged as
ground or a b o re ew was a purchase or auabe
consderaton wthout notce o the pant s tte.
Ths coud on be used as a de ence and t seems
to ha e been thought that athough t mght ha e
been proper under the crcumstances the new mat-
ter had been dsco ered be ore the decree to ha e
aowed the de endant to amend hs answer and put
t n ssue et t coud not be made the sub ect o
a b o re ew because t created no tte para-
mount to the tte o the pant but mere a ground
to nduce a ourt o ut not to nter ere. nd
where a settement had been made on a marrage n
pursuance o artces and the settement oowng the
words o the artces had made the husband tenant
or e wth remander to the hers mae o hs bod
and the husband camng as tenant n ta under the
settement had e ed a ne and de sed to trustees
prncpa or the bene t o hs son and the trus-
tees had obtaned a decree to carr the trusts o the
w nto e ecuton aganst the son the son a ter-
M ards on dsco er o the artces brought a b to
ha e the settement rect ed accordng to the artces
and a decree was made accordng . n ths case the
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Original from
Digiti zed by
knowledge of the party after pub-
lication passed. Amb. 293 ; 3Atk.
34; vide etiam Ord v. Noel, 1821,
6 Madd. 127.
(k) Barrington v. O'Brien, 1812
2 Ball &B. 142.
(l) Young v. Keighly, 1810, 16
Ves.353.
(g) Roberts v. Kingsly, 1749, 1
Yes. sen. 23 .
(h) Eq. PI. 327.
(i) Lord Hardwicke i reported
to have said that the words of Lord
Bacon weredark; but that the con-
struction has been that the new
matter must have come to the
new matt r does 110tappeal' to hav be n vidence of Conditions
matter in i ue in th fir t can e, but created a title ~
adver eto that on which the fir t d ere was made (9)'"
In th next place, the new matter must have fir t 'I'he newmatter
com to the knowledge of the party after the time ~n~~:;~\~:en
when it could have been used in the cause at the fore publica-
.. 1] . L dB' 0 l' l.f tion.
origma ieanug. or aeon 1'(mance says, aJ ter
the decree ; "but," ays 1\11'.J u tice Story (iz), "that
eem corrected by the subsequent words, and could
not possibly have been used at the time when the decree
passed j "" hich words point to the period of the publi-
cation of the testimony. And accord ingly it is now
the e tabl i hed expo ition of the Ordinance that the
new matter shall not have been eli covered until after
publication has pa ed (i)."
It mu t 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 adefence (k). "Upon
a upplemental bill in nature of a bill of review," says
Lord Eldon (l), " 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 tithe for wool and lambs, and a decree
was neverthele made for an accoun t of small tithes,
inc}uding those articles, and the defendan t appealed,
and afterward Ire ented a petition representing that
the tithe of wool and lambs vilas of right payable
to the improprinte rector, and wa covered by an
53
on Supplemental .1.}Iatter.
new matter does not a pear to ha e been e dence o ondtons
matter n ssue n te rst canse but created a tte
ad erse to taton whc the rst decree was made .
n the ne t pace the new matter must ha e rst The new matter
come to the knowedge o the part a ter te tme 3c no wrbe
when t coud ha e been used n the cause at the pre pubca-
orgna hearng. ord acon s rdnance sa s a ter
the decree but sa s Mr. ustce tor that
seems corrected b the subse uent words and coud
not possb ha e been used at the tme when the decree
passed whch words ont to the perod o the pub-
caton o the testmon . nd accordng t s now
the estabsed e poston o the rdnance tat the
new matter sha not ha e been dsco ered unt a ter
pubcaton has passed .
t must aso be shewn that due dgence was used Due dgence
n seekng or the new means o de ence at the tme
when t mght ha e been used as a de ence . pon
a suppementa b n nature o a b o re ew sa s
ord don / the ueston awa s s not what the
pant knew but what b usng reasonabe dgence
he mght ha e known. Thus where a car brought
a b or tthes and the de endant nssted on non-
pa ment o tthes or woo and ambs and a decree
was ne ertheess made or an account o sma tthes
ncudng those artces and the de endant appeaed
and a terwards presented a petton representng that
the tthe o woo and ambs was o rght pa abe
to the mproprate rector and was co ered b an
oberts . ngs 1749 1 knowedge o the part a ter pub-
es. sen. 23 . caton passed. mb. 293 3 tk.
h . P . 327. 34 de etam rd . oe 1 21
ord ardwcke s reported 6 Madd. 127.
to ha e sad that the words o ord k ar rng tons. ren 1 12
acon were dark but that the con- 2 a . 142.
structon has been that the new oung . egh 1 10 G
matter must ha e come to the es. 353.
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p
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Original from
Igltlzed by
(m) Bingham v. Daioson, 1821, Macartney, 1719,2Bro. P. C. 67.
J acob, 243. (0) Curtis v. Smallridge, 1663,
(n) Blake v. F08te?', 1814,2Ball Freem. 178; 1C. C. 43; 1E. Ca.
& B. 457; vide etiam Ludlow v. Ab. 377.
ancient composition, and that the evidence of these
tithes belonging to the rectory consisted of a grant
fromthe Crown under J ames the First, and of certain
records in the Augmentation Office, 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 Officehad been searched at first, there would
have been a proper defence. If it is to be laid down
that aparty 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. I tis not
a case of a search made, and a miscarriage in that
search, but it does not appear that there wasanysearch
at all (m)."
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 (0).
I thas 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 ought in conscience tohave di covered to
Of tile Reversal of Decrees -
Decree ob-
tained by
fraud.
Confession
after decree.
Conditions
of the Bill.
54
54
the e ersa o Decrees
ondtons
o the .
on esson
a ter decree.
Decree ob-
taned b
raud.
ancent composton and that the e dence o these
tthes beongng to the rector conssted o a grant
rom the rown under ames the rst and o certan
records n the ugmentaton ce on recent
known to the de endant and pra ng ea e to e a
suppementa b n the nature o a b o re ew to
ntroduce the new e dence at the hearng o the
appea ord don sad crcumstances o ths
knd are to orm grounds o bs o re ew these
appcatons w be constant and eterna. the ug-
mentaton ce had been searched at rst there woud
ha e been a proper de ence. t s to be ad down
that a part ma go on to a decree wthout ookng or
a de ence and ma then make appcatons o ths
knd there w ne er be an end to them. t s not
a case o a search made and a mscarrage n that
search but t does not appear that there was an search
at a m
o ea e was re used where the e dence snce
dsco ered conssted o a deed and o proceedngs n
a sut to whch the de endant the appcant had been
a part n .
t has been sad that a con esson b the pant
a ter decree w not warrant a b o re ew b the
de endant o .
t has aso been sad that the new matter to be
brought orward b the aggre ed part was known
to the opposte part at the tme o the decree then
n order to warrant a b o re ew the new matter
must be such as the part knowng t was not n
conscence obged to dsco er to the ourt. or t
s such as he ouo ht n conscence to ha e dsco ered to
m ngham . Da son 1 21 Macartne 1719 2 ro. P. . 67.
acob 2415. o urts . mardge 1663
n ake . oster 1 14 2 a reem. 17 1 . . 43 . a.
. 457 de etam udow . b. 377.
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Original from
Digiti zed by
v . Mel/is1e, 1682,1 Vern. 117. And
so where the defendant gave good
security for payment, Savil v,
Darcy, 1662, 1 C. C. 42; Freem.
172j 1E. Ca. Ab. 82.
(r) Beames's Orders, 3j Fitton
v. Macclesfield, 1684, Freem. 88 j
Anon. 1699, 12Mod. 343.
(s) Beames's Orders, 4.
(I ) 1828, 5 Russ. 195.
(p) Manaton v. Molesioortb,
1757, 1Eden, 18.
(q) Vide Bp. of Durham v.
Liddell, 1717, 2 Bro. P. C. 63.
Even this seems to have been dis-
pensed with, where it appeared
that the party was unable to pay
the money, Fitton v. Macclesfield,
1684, 1Vern. 264; Freem. 8; or
to perform the decree, Williams
the Court, then the decree has been obtained by fraud, Conditions
d 1
. b'll of the Bill.
an oug at to be set aside by oriqinal 1 (p). '-.,---I
By the third of Lord Bacon's Ordinances it i de- The decree
clared that " no bill of review or any other new bill must be first
, , performed.
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-
dence , that the evidences be brought in; and so in
other cases which stand upon the strength of the
decree alone o-)." 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. Usborne (t) 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
the ourt then the decree has been obtaned b raud ondtons
and ought to be set asde b orgna h p . t
the thrd o ord acon s rdnances t s de- Te decree
Gared that no b o re ew or an other new b pgr or g
sha be admtted to change matter decreed e cept
the decree be rst obe ed and per ormed as t be
or and that the possesson s eded t be or
mone that the mone be pad t be or e -
dences that the e dences be brought n and so n
other cases whch stand upon the strength o the
decree aone r . ut b the ourth rdnance t s ceptons
decared that an act be decreed to be done whch
e tngusheth the part s rght at common aw as
makng o assurance or reease acknowedgng sats-
acton canceng o bonds or e dences and the ke
those ponts o the decree are to be spared unt the
b o re ew be determned but such sparng s to
be warranted b pubc order made n ourt s .
o aso a part ma obtan ea e to e a suppe-
menta b n the nature o a b o re ew and ma
e the b e en though he has not per ormed the
decree n the orgna sut the proceedngs under
the decree are not at the tme n such a state as to
enabe the ad erse part to brng- hm nto de aut or
not ha ng per ormed the decree. Thus n Partrdge
. sbornet abo e re erred to t was hed that a ter
the de endant had obtaned ea e to e hs suppe-
menta b n the nature o a b o re ew he had a
Manaon . Moesworth . M/w/ 16 2 1 ern 117. nd
1757 1 den 1 . so where the de endant ga e good
/ de p. o Durham . securt or pa ment a .
dde 1717 2 ro. P. . G3. Darc 1662 1 . 42 reem.
en ths seems to ha e been ds- 172 1 . a. b. 2
pensed wth where t appeared r eames s rders 3 tton
that the part was unabe to pa . Macces ed 16 4 reem.
the mone tton . Macces ed non. 1699 12 Mod. 343.
16 4 1 ern. 264 reem. or eames s rders 4.
to per orm the decree ams / 1 2 5 uss. 195.
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Oriqinal from
Digitized by
(y) Dolan v, ]\ evill, 1826, 2
)foll. 494.
(u) Ibid.
(x) 1791, 1Ve . jun. 405.
Conditions right to fileit without haying previously paid the pur-
of the Bill. h hi I h d d db'
'-v--J case money w lC1 t e ecree comman e im to
pay, becau e the time had not arrived at which the
adverse party, in due execution of the decree, could
compel payment.
I t appears, however, that as soon as that time
arrives, he will not be allowed toproceed with his bill
until he pays the purchase money to the vendor; and
that such payment will not be di pensed with, nor
will payment into Court be allowed in substitution,
even though the sum be very large (u).
Party who has Sometimes a party who has not joined in the peti-
notjo~e.d in tion for rehearing may have the benefit of it. Thus
the petition .. '
may sometimes In Hill v. Chapman (x), after a decree had been made
b
havefitthe establishing a will, a legatee coming into esse after
ene .
the death of the testatoI ':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 that in which it was pronounced, and not by an ori-
the Court in
which it was ginal bill in another Court. Thus where, in 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
a sets to a greater amount than they had stated had
come to the executors' hands befor.ethe suit, and also
further assets since the suit; it 'washeld that the ori-
o'inal bill was irregular, and that the object of the ori-
ginal bill ought tohavebeen sought by a review, inthe
Court f Exchequer, of the decree pronounced there(y).
ondtons rght to e t thout ha ng pre ous pad the pur-
. chase mone whch the decree commanded hm to
pa because the tme had not arr ed at whch the
ad erse part n due e ecuton o the decree coud
compe pa ment.
t appears howe er that as soon as that tme
arr es he w not be aowed to proceed wth hs b
unt he pa s the purchase mone to the endor and
that such pa ment w not be dspensed wth nor
w pa ment nto ourt be aowed n substtuton
e en though the sum be er arge m .
Part who as ometmes a part who has not oned n the pet-
not oned n . . rehearng ma ha e the bene t o t. Thus
the petton p
ma sometmes n . hapman a a ter a decree had been made
b estabshng a w a egatee comng nto esse a ter
the death o the testator oned hmse to the sut
b a suppementa sut and on a rehearng on the
petton o the other partes n order to rect an
error n the decree the new part was aowed to
rase an ob ecton to the decree.
Decree must be decree must be mpeached n the same ourt as
mpeached n t n whc t was pronounced and not b an or-
the ourt n . . . . - - -
whch t was gma b m another ourt. hus where m a sut b
made. e ecutors n the ourt o che uer an account was
taken under a decree and the ne t o kn and her at
aw ed an orgna b n hancer mpeachng the
account on dsco er o new e dence shewng that
assets to a greater amount than the had stated had
come to the e ecutors hands be ore the sut and aso
urther assets snce the sut t was hed that the or-
gna b was rreguar and that the ob ect o the or-
gna b ought to ha e been sought b a re ew n the
ourto che uer o the decree pronounced there 3/ .
m bd. oan . e 1 26 2
1791 1 es. un. 405. Mo. 494.
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Original from
I gitlzed by
(c) Ld. Red. ed. 4, p. 88.
(d) Ld. R d. ed. 4, p. ; Dun-
ny v. Filmore, 1682, 1 Vern.
135; Pitt v. Arplass, 16 6,1Vern.
H I .
(z) Eq. PI. p. 332.
(a) Bennet v, Lee, 1742,2 Atk.
528; Wilon v. Webb, 17 8, 2
Cox,3.
(0) Barbon v. Searle, 1685, 1
Vern. 416.
" Th re is another important [ualification," ,ay~ Conditions
M J
. S () hi h' . d d d d .hI of the Bill.
r. u tree tory z, "w IC IS I I I ee e UCl e '"-v--J
from the very language of Lord Bacon's Ordinance' Leave to bring
. h . f h 1'11 f .' the bill is di -
and that IS, that t e grantmg 0 llC a m 0 review cretionary.
for newly disco ered evidence is not a matter of right~
but re ts in the ound discretion of the Court. It
may, th refore, be r fused, although the facts, if ad-
mitted, would change the decree, where the Court,
looking to all the circum tances, shall deem it pro-
ducti ve of mischief to innocent parties, or fa]' any
other cause unadvisable (a)."
A bill of review upon newly di covered matter has Hill of review
been permitted even after an affirmation of the decree ~[~~r sz:
in the House of Lord. Thus where a deer e had in the Hou e
b d
di ., bill dI d' . I 1 .1 of Lord.
een rna I mrs mg aI, an t rat 1 l11ISSa rau
been affirmed by the House of Lords on appeal, and
afterwards a bill of review was brought for discovery
of a deed said to have been burnt pending the appeal,
which made out the plaintiff's title; and the bill wa
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 (b). And Re~iew. of a
um f' b b 1 f 1'11 frevlewl zood.
a 1 0 review may e roug rt a tel' one un 0 0
review already filed, as if upon a bill of review a
decree ha been reversed, another bill of review may
be brought upon the decree of reversal (c). But if a
demurrer ha been allowed to a bill of review, a new
bill of revi w upon the ame ground will not be
allowed (d).
A_ to the time within which the e bills must be Limitation of
fi I
1 ]
" time for bring-
eu, we earn that a bill of review for error apparentioo-thereview.
.7 on Supplemental Matter.
There s another mportant ua caton sa s dndtons
Mr. ustce tor whch s ndeed deducbe
rom the er aneuat-e o ord acon s rdnance ea e to brng
. . the b s ds-
and that s that the grantng o such a b o re ew cretonar .
or new dsco ered e dence s not a matter o rght
but ests n the sound dscreton o the ourt. t
ma there ore be re used athough the acts ad-
mtted woud change the decree where the ourt
ookng to a the crcumstances sha deem t pro-
duct e o msche to nnocent partes or or an
other cause unad sabe a .
b o re ew u on new dsco ered matter has o re ew
been permtted e en a ter an a rmaton o the decree ton o decr e
n the ouse o ords. Thus where a decree had n the ouse
been made dsmssng a b and that dsmssa had
been a rmed b the ouse o ords on appea and
a terwards a b o -e ew was brought or dsco er
o a deed sad to ha e been burnt pendng te appea
whch made out the pant s tte and the b was
ed n order that a ter such dsco er the pant
mght app to the ouse o ords or ree the de-
endant on demurrer was ordered to answer . nd e ew o a
a b o re ew ma be brought a ter one b o a
re ew aread ed as upon a b o re ew a
decree has been re ersed another b o e ew ma
be brought upon the decree o re ersa c . ut a
demurrer has been aowed to a b o re ew a new
b o re e upon the same ground w not be
aowed d .
s to the tme wthn whch these bs must be mtaton o
ed we ea-n that a b o re ew or error o/ p e n r the re ew.
. P . p. 332. c d. ed. ed. 4 p. .
a ennet . ee 1/-12 2 tk. d d. ed. ed. 4 p. Dun-
52 sot . ebb 17 2 n . more 16 2 1 ern.
o 3. Ptt . rgass 16 6 1 ern.
h arhon . eare 5 1 441.
ern. 41 .
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p
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Original from
Digitized by
field, 1684, 1Vern, 287 j Shet'ring,
ton v, Smith, 1704, 2 Bro. p, C.
G2. These, however, are cases of
bills of review on error apparent.
(e) Eq. PI. 333,
(f) 1793, 4 Bro, C, C, 441.
And see Edwards v. Carroll, 1760,
2Bro, p, C. 98j Fitton v. Maccles-
Conditions must be brought within the same period as that which
~ limits writs of error at law; and, says Mr. J ustice
Story (e), "the question may arise whether the like
limitation applies to bills of review upon newly dis-
covered facts and evidence, There can be no doubt
that it would be a good bar, that the bill of review
was not brought within the period limited for writs of
error after the discovery of the new facts or evidence;
but the question is, whether a bill of review will lie
after the lapse of that period from the time of making
the decree, although it be within the prescribed period
after the discovery of the new facts or evidence, There
does not seem to be any decision settling the point;
and as the allowance of a bill of review for newly dis-
covered evidence is discretionary with the Court, it is
scarcely probable that it will arise in judgment, as the
lapse of time will always have great weight with the
Court in refusing the application, in connexiou with
the other circumstances."
In Lytton v. Lytton (f), however, it is decided that
though a bill of review cannot in general be brought
to reverse a decree after twenty years, yet that bar
does not apply to persons having contingent interests,
and then not existing, or under disabilities.
Form The supplemental bill in the nature of a bill of re-
of the Bill" t h.(' bil l d the nroceedi
"-v----J 'VIewmust sate t e rorrner 1 ,an tre procee 111gS
States f?rmer thereon. I t must, of course, also set out the decree,
proceedings. d I h ' , hi h h hibi , h
an Slew t e point 111 w IC t e party ex 1 Itmg t e
bill conceives himself aggrieved by the decree. It
must also state positively whether the decree has been
enrolled or not; for it will not be regular to state this
in the alternative, praying one sort of relief, as upon
OJ the Reversal oj Decrees 58
5
the e ersa o Decrees
ondtons
o the .
orm
o the .
.
tates ormer
proceedngs.
must be brought wthn the same perod as that whch
mts wrts o error at aw and sa s Mr. ustce
tor e the ueston ma arse whether the ke
mtaton appes to bs o re ew upon new ds-
co ered acts and e dence. There can be no doubt
that t woud be a good bar that the b o re ew
was not brought wthn the perod mted or wrts o
error a ter the dsco er o the new acts or e dence
but the ueston s whether a b o re ew w e
a ter the apse o that perod rom the tme o makng
the decree athough t be wthn the prescrbed perod
a ter the dsco er o the new acts or e dence. There
does not seem to be an decson settng the pont
and as the aowance o a b o re ew or new ds-
co ered e dence s dscretonar wth the ourt t s
scarce probabe that t w arse n udgment as the
apse o tme w awa s ha e great weght wth the
ourt n re usng the appcaton n conne on wth
the other crcumstances.
n tton . tton / howe er t s decded that
though a b o re ew cannot n genera be brought
to re erse a decree a ter twent ears et that bar
does not app to persons ha ng contngent nterests
and then not e stng or under dsabtes.
The suppementa b n the nature o a b o re-
ew must state the ormer b and the proceedngs
thereon. t must o course aso set out the decree
and shew the pont n whch the part e hbtng the
b conce es hmse aggre ed b the decree. t
must aso state post e whether the decree has been
enroed or not or t w not be reguar to state ths
n the aternat e pra ng one sort o ree as upon
e . P . 333. ed 16 4 1 ern. 2 7 herrng.
1793 4 ro. . . 441. ton . mth 1704 2 ro. P. .
nd see dwards . arro 1760 02. These howe er are cases o
2 ro. P. . 9 t ton . Macces- bs o re ew on error apparent.
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Original from
Digitized by
(l) I f the fact of discovery is in
issue in the cause, it ought to be
proved to entitle the plaintiff to
demand the judgment of the Court
on the matter alleged, as ground
for reviewing the decree; and it
may consequently be disproved by
evidence on the part of the de-
fendant. Vide Ld. Red. ed. i,p. 89.
(g) Perrp v. Phelips, 1810, 17
Yes. ]76.
(h) Norris v. Le Neve, ]743,
3Atk. 36.
(i) Ed. 4, p. 89.
(k) I t is apprehended that the
same rules apply to supplemental
bills in the nature of bill of review,
as to bill of review them elves.
a bill of review, if the decree has been enrolled, and, Form
if not enrolled, then to have the benefit of it as a sup- ~
plemental bill in the nature of a bill of review. "There
is this difference," says Lord Eldon in acase(g) in which
it was not stated whether the decree was enrolled or
not, "between a bill of review, and a supplemental
bill in the nature of a bill of review :- in the former,
if introducing also matter of supplement or revivor,
the prayer, as far as it is a bill of review, is that the
decree may be reviewed and reversed :-in the other,
adopting also the proper prayer for revivor, as to the
supplemental matter you pray that the cause may be
reheard. In that respect I doubt whether thi is an
accurate record in not stating po itively the fact whe-
ther the decree is enrolled or not."
The bill must then proceed to state the new matter States the
hi h h d . h b' h d . . supplemental
on w IC t e ecree IS soug t to e Impeac e : It ISmatter.
not necessary, however, to point out the effects of it,
for it is the province of the Court to make the infe-
rence of law from the new matter (h). I tseems neces- States the
saryalso to state the fact of the discovery, though" it discovery.
has been doubted," says Lord Redesdale (i), It whether
after leave has been given to file the bill, the fact of
the discovery is traversable. But," he adds, "this
doubt may be questioned if the defendant to the bill
of review (k) can offer evidence that the matter alleged
in the new bill was within the knowledge of the party,
who might have taken the benefit of it in the original
cau e(l). It seems also necessary to state that leave States the
59
on Supplemental Matter.
a b o re ew te decree has been enroed and orm
not enroed then to ha e the bene t o t as a sup-
pementa b n the nature o a b o re ew. There
s ths d erence sa s ord don n a case n whch
t was not stated whether the decree was enroed or
not between a b o re ew and a suppementa
b n the nature o a b o re ew : n the ormer
ntroducng aso matter o suppement or re or
the pra er as ar as t s a b o re ew s that the
decree ma be re ewed and re ersed : n the other
adoptng aso the proper pra er or re or as to the
suppementa matter ou pra that the cause ma be
reheard. n that respect doubt whether ths s an
accurate record n not statng post e the act whe-
ther the decree s enroed or not.
The b must then proceed to state the new matter tates the
on whch the decree s sought to be mpeached : t s maMer
not necessar howe er to pont out the e ects o t
or t s the pro nce o the ourt to make the n e-
rence o aw rom the new matter h . t seems neces- tates the
sar aso to state the act o the dsco er though t
has been doubted sa s ord edesdae whether
a ter ea e has been g en to e the b the act o
the dsco er s tra ersabe. ut he adds ths
doubt ma be uestoned the de endant to the b
o re ew k can o er e dence that the matter aeged
n the new b was wthn the knowedge o the part
who mght ha e taken the bene t o t n the orgna
cause . t seems aso necessar to state that ea e tates the
g Perr . Pheps 1 10 17 the act o dsco er s a
es. 176. ssue n the cause t ought to be
h orrs . e e e 1743 pro ed to entte the pant to
3 tk. 36. demand the udgment o the ourt
/ d. 4 p. 9. on the matter aeged as ground
c t s apprehended that the or re ewng the decree and t
same rues app to suppementa ma conse uent be dspro ed b
bs n the nature o bs o re ew e dence on the part o the de-
as to bs o re ew themse es. endant. / /p d. ed.ed. 4 p. 9.
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Origin Ifrom
Digitizedby
v. Phelips, 1810, 17Ves.173, 176.
(p) Hodson v. Ball, 1841, 11
Sim.456.
(q) Hartwell v. Townsend, 1768,
2 Bro. P. C. 107.
(m) Fitton v. Macclesfield, 1684,
I Vern. 292.
(n) For a precedent of this sort
of bill, seethe Appendix, No. VIII.
(0) Ld. Red. ed. 4, p. 89; Price
v, Keyte, 1682, I Vern. 135; Perry
Form has been obtained to file the bill; and if an order has
of the Bill. b d di . . 1 h
'---.,..--J eenrna e Ispensmg WIt1t epayment of costs, which
lceavetof the ought to precede that event, such order 111ust be set
our.
out in the bill (112 ).
Prayer. The bill merely prays, as wehave before said, that
the cause may be heard with respect tothe new matter
at the same time as it is reheard upon theoriginal bill,
and for such relief as the nature of the casemade by
the supplemental matter requires (n).
May bejoined These bills may also, if the original suit has become
;:!~~~~r of abated, have bills of revi vor incorporated with them,
supplement. or introduce new parties, if necessary, by", ay of sup-
plement (0). But if the bill, so far as it is a supple-
mental bill in nature of a bill of review, is ordered to
be taken off the file for any irregularity, the bill of
revivor incorporated with it will share its fate, and be
taken off the file also (p).
Parties. As to the parties, it appears that all the parties to
'---.,..--J the original bill ought to be made parties to the bill of
review; "for it is a principle of natural justice that
110 one ought to be affected by allYdecree without his
first being heard (q)."
Subsequent The rules as to the defence and evidence in the sup-
Proceedings I Lsui '11' I b 1 h
~ P ementa suitWI ,111 genera, e t re same as t ose
already given with respect to the bills considered in
the second chapter of tbis treatise; and the supple-
mental suit will be set down to be heard at the same
time as the original suit comes on to be reheard.
Of the Reversal of Decrees on Supplemental -,-Matter. 60
60
the e ersa o Decrees on uppementa Matter.
orm
o the .
ea e o the
ourt.
Pra er.
Ma be oned
wth bs o
re or or
suppement.
Partes.
ubse uent
Proceedngs.
as been obtaned to e the b and an order has
been made dspensng wth the pa ment o costs whch
ought to precede that e ent such order must be set
out n the b m .
The b mere pra s as we ha e be ore sad tat
the cause ma be heard wth respect to the new matter
at the same tme as t s reheard upon the orgna b
and or such ree as the nature o the case made b
the suppementa matter re ures w .
These bs ma aso the orgna sut has become
abated ha e bs o re or ncorporated wth them
or ntroduce new partes necessar b wa o sup-
pement o . ut the b so ar as t s a suppe-
menta b n nature o a b o re ew s ordered to
be taken o the e or an rreguart the b o
re or ncorporated wth t w share ts ate and be
taken o the e aso / .
s to the partes t appears that a the partes to
the orgna b ought to be made partes to the b o
re ew or t s a prncpe o natura ustce that
no one ought to be a ected b an decree wthout hs
rst beng heard .
The rues as to the de ence and e dence n the sup-
pementa sut w n genera be the same as those
aread g en wth respect to the bs consdered n
the second chapter o ths treatse and the suppe-
menta sut w be set down to be heard at the same
tme as the orgna sut cones on to be reheard.
tton . Macces ed 16 4
1 ern. 292.
w or a precedent o ths sort
o b see the ppend o. .
o d. ed. ed. 4 p. 9 Prce
. e e 16 2 1 ern. . Perr
. Pheps 1 10 17 es. 173 176.
p odson . a 1 41 11
m. 450.
artwe . Toumsend 17G
2 ro. P. . 107.
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Original from
Digitized by
A SUIT, perfect in its institution, may become imper- The various'
feet after the filing of the original bill, from some ~ortt,sof ImbPer-
tee tons su -
event arising, which, either wholly or partly, hinders sequent.
the further prosecution thereof. '-...--J
The Court, as we before ob erved, will not permit
any event which has arisen sub equently 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 proceeding in the original
suit.
The event which arises sub equently to the filing of
the original bill, may be either such an event a makes
a change in the parties representing the intere t in the
matter in 1itigation; or it may he such an ev ent a'
makes no change in the parties repre enting the in-
tere t but merely demands the introduction of new
matter into the suit.
'Ve will begin with the most common sort of imper- Wbel'e the
fection : that occa ioned by an event which occurring' event cau~es
, 'a change 10the
in the middle of a suit, disturbs the interests which parties.
have before been properly represented, and renders
the uit imperfect for want of partie.
(a) Braum v. Higden, 1736, 1Atk. 291.
OF IMPERFECTIONS SUBSEQUENT TO THE INSTI-
TUTION OF THE SUIT.
CHAPTER IV.
61
61
PT .
MP T T T T T -
T T T T.
T per ect n ts nsttuton ma become m per- The arous
eet a ter the ng o the orgna b rom some on
e ent arsng wc ether who or part hnders se uent.
the urther prosecuton thereo .
The ourt as we be ore obser ed w not permt
an e ent whch has arsen subse uent to the ng
o the orgna b to be ntroduced nto the orgna
b b wa o amendment a e cept n some ew
nstances. ut t aows the mper ecton to be reme-
ded b other means n some cases b ng a new
b re errng to the orgna b and brngng the new
e ent be ore the ourt n other cases b g ng to a
new sut the bene t o the proceedngs n the orgna
sut.
The e ent whch arses subse uent to the ng o
the orgna b ma be ether such an e ent as makes
a change n the partes representng the nterest n the
matter n tgaton or t ma be such an e ent as
makes no change n the partes representng the n-
terest but mere demands the ntroducton o new
matter nto the sut.
e w begn wth the most common sort o mper- here the
ecton : that occasoned b an e ent whch occurrng
. change n the
n the mdde o a sut dsturbs the nterests whch partes.
ha e be ore been proper represented and renders
the sut mper ect or want o partes.
a rown . den 1736 1 tk. 291.
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Oriqinal f om
01gI tI zed by
Thevarious To understand this properly, it will be necessary to
;~::i~~~ ~~:_er- bear in mind the fundamental rule of a Court of
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 asingle 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 beproperly represented, not merely at
the commencement of the suit, but throughout the
whole course of it; if, therefore, anyone 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 onehand,
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 fromtheir ceas-
ing to represent among them all the interests in the
matter in litigation, the suit may be incapable of being
brought to afinal and complete termination.
Civil death of Again,-where aparty to the suit comes to anatural
aparty. or civil termination of his existence, soas 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 caseof 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-
Of Imperfections subsequent 62
62 mper ectons subse uent
The arous To understand ths proper t w be necessar to
sorts o mper- n mnd the undamenta rue o a ourt o
ectons sub-
se uent. ut that e er nterest n the sub ect matter o a
sut whch ma be a ected b the ree pra ed must
be represented n the sut. There ma be numerous
nterests arsng out o one propert . The sub ect
matter o a sut ma be a snge acre o and but there
ma be nterested n ths acre a tenant or e se era
remandermen a essee a mortgagee a purchaser
trustees and arous others some or a o whom
ma be a ected b the decree sought. ow a these
nterests must be proper represented not mere at
the commencement o the sut but throughout the
whoe course o t there ore an one o them s
no onger proper represented t must be ether that
somethng has happened a ectng the person who re-
presented t or that somethng has happened a ectng
the nterest tse . n other words on the one hand
a part ma arr e at the termnaton o hs e stence
ether natura or c and so ose hs capact o sus-
tanng hs share o the sut or on the other hand
whe a the partes retan ther e stence and ther
capact o sung or beng sued et rom ther ceas-
ng to represent among them a the nterests n the
matter n tgaton the sut ma be ncapabe o beng
brought to a na and compete termnaton.
death o gan where a part to the sut comes to a natura
a part . . - termnaton o hs e stence so as to be as we
ha e sad no onger capabe o sustanng hs part
theren the conse uences o ths e ent w be d e-
rent accordng as the nterest o the deceased part n
the sub ect matter o the sut sur es hs death as n
the case o the death o a tenant n ee or des wth
hm as n the case o a tenant or e a rector or a
here the n- bshop. n the ormer case the sut s on dscon-
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Original from
DI gitized by
tinued as to such party, and is said to be abated, or to The various
suffer an abatement which abatement may as we hall sort.sof Imper-
, 'fecbons sub-
see, be remedied by the corresponding process of re- sequent.
vivor; whilst, in the latter case, the suit is completely t~
at an end with respect to the party deceased; and the the death.
P
roceedings which have been had in it by or against Where ~hei~-
, terest dieswith
such party, cannot be made use of by or against any theparty.
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 Changesof
f 1
. h be narti interest inter
course 0 t re SUIt, suc as causes t e parties to It, vivos.
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 per on 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 Whentheevent
. h' h' bd' . . f h doesnot alter
parties to t e SUIt, t ere IS no su IVISlOll 0 t ethe parties.
subject.
I tis proposed, then, first to consider the subjects of Divisionof
h
1
the Subject.
Abatement and Revivor, wit t re consequences which _-. __
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 pr0-
ceedings respecting such party may be made available
in a new suit.
After this, we will consider the three several cases
63 to the Institution of the Suit.
to the nsttuton o the ut. 63
tnued as to such part and s sad to be abated or to The arous
su er an abatement whch abatement ma as we sha gT n T
see be remeded b the correspondng process o re- se uent.
or whst n the atter case the sut s compete terest sur es
at an end wth respect to the part deceased and the the death.
proceedngs whch ha e been had n t b or aganst gg -g 2
such part cannot be made use o b or aganst an the part .
other part obtanng possesson o the same propert
e cept b the ndugence o the ourt and under cer-
tan condtons and restrctons
n the other hand an mper ecton occurrng n the hanges o
r .- . . 1 1 . - nterest nter
course o the sut such as causes the partes to t
wthout osng ther e stence to cease to represent
among them a the nterests n the matter n tga-
ton ma arse rst rom the assgnment o an nte-
rest b one person to another as n the case o a sae
a mortgage or a bankruptc or second rom the
rse o a new nterest as n the case o the brth o a
chd entted under a settement or thrd rom
the cessaton o an nterest durng the etme o
the part en o ng t as n the case o a tenant unt
a contngenc osng hs nterest upon the occurrence
o the contngenc .
ast when the new e ent makes no change n the hen the e ent
partes to the sut there s no subd son o the the parte s.
sub ect.
t s proposed then rst to consder the sub ects o D son o
batement and e or wth the conse uences whch u ec .
the produce upon the proceedngs n the sut and
second to dscuss the crcumstances under whch a
part ma de wthout ea ng an nterest sur ng
hm and to n ure how ar the bene t o the pro-
ceedngs respectng such part ma be made a aabe
n a new sut.
ter ths we w consder the three se era cases
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n inal from
DI rtized by
Division of of Assignment of interest, Rise of a new interest, and
~ Cessation 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-
ces ary in the parties to it.
I t 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, a that of the cestuis que trust who sue him.
Of Imperfections subsequent to tile Institution, ~c.
64
64 mper ectons subse uent to the usttuton c.
D son o o ssgnment o nterest se o a new nterest and
the ub ect. gggaton o nterest durng e and ast there
w reman the sub ect o those e ents whch whe
the render the sut mper ect make no change ne-
cessar n the partes to t.
t s hard necessar to premse that n speakng
o nterests t s ntended to ncude not bene ca
nterests on but abtes whch are as t were
negat e nterests n the matter. Thus the conne on
whch a trustee sued or a breach o trust has wth
the sut ma be as we e pressed b the term n-
terest as that o the cestus ue trust who sue hm.
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Original hem
Dj ;J I tized by
(a) Finch v. Winchelsea, 1727, "the death of one plaintiff, the suit
1 E. Ca. Ab. 2; vide etiam, 11"\e. not abating as to the other.
312, where Lord Eldon speaks of
F
Nature
of Abatement.
'-v---J
\V E have ... een that where the event which render an
intere t which urvive that event no longer repre-
ented in the uit, i uch as terminate the legal
exi tence of the representative, the suit i said to
abate, or be abated a' to that party. This abatement ~otal or par-
will affect the ui t in one of two ways.-If the I arty bal.
wa sole plaintiff or ole defendant, the abatement a
to him i an abatement of the whole uit.-If he wa
on~of everal plaintiff: or everal defendan t ,the uit
remain unabated a to the other parties (a), but it is
rendered defective a to them, becau e there i a
material intere t unl'epre ented .
There is, however, one anomalous species of cases, Cannot occur
. . 1"1r' in a creditor '
III which one of several p aintitts may die, and leave suit, where
an intere t urviving him, and yet the uit may not there are m~re
1
b b b
d
l" T hi than one plain-
on y not a ate, ut not even ecome erective. 11 tiff.
occur in the descri] tion of case in which it i per-
mitted to one or more per 011S belonging to a class, as
creditor, next of kin, &c. to file a bill on behalf of
them el ve and the re tof the class. In. uch a uit
a tbi if there are more than one plaintiff on the
record, and a plaintiff die or otherwi e lose hi legal
existenc ,the uit i 'wholly unaffected, although he
leaves an intere t urvi ving him which devolve on
hi repre entatives, For a one I laintiff would have
OF A BAT EM EN T.
CHAPTER V.
6D
65
PT .
T M T.
e ha e seen that where the e ent whch renders an ature
nterest whch sur es that e ent no onger repre- batement.
sented n the sut s such as termnates te ega
e stence o te representat e the sut s sad to
abate or be abated as to that part . Ths abatement Tota or par-
w a ect the sut n one o two wa s. the part
as soe pant or soe de endant the abatement as
to hm s an abatement o the whoe sut. he was
on o se era pant s or se era de endants the sut
remans unabated as to the other partes a but t s
rendered de ect e as to them because there s a
matera nterest unrepresented.
There s howe er one anomaous speces o cases annot occur
n whch one o se era pant s ma de and ea e g whtre
an nterest sur ng hm and et the sut ma not there are more
on not abate but not e en become de ect e. Ths o pan-
occurs n the descrpton o cases n whch t s per-
mtted to one or more persons beongng to a cass as
credtors ne t o kn c. to e a b on beha o
themse es and the rest o the cass. n such a sut
as ths there are more than one pant on the
record and a pant des or otherwse oses hs ega
e stence the sut s who una ected athough he
ea es an nterest sur ng hm whch de o es on
hs representat es. or as one pant woud ha e
a nch . nchesea 1727 the death o one pant the sut
1 . a. b. 2 rde etam 11 es. not abatng as to the oter
312 where ord don speas o
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n In I
I rtize b
(0) Leigh v. Thomas, 1751, 2 364.
Yes. sen. 312. (d) Bumey v. Morgan, 1823, 1
(c) Boddy v. Kent, 1816, 1Mer. S. & S. 358.
or in different
capacities.
Nature been originally sufficient to sustain the suit on behalf
of Abatement. of all, so one plaintiff is now sufficient to continue
it (b), 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.
Unless they Where, however, some creditors join in filing a bill
suein. respect in respect of their several demands under a composi-
of their several
demands, 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, ajudgment 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 J Oh11 Leach,
V. C., said that Burney'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 Cd).
What Events We will now consider what events will cause an
causeAbate- abatement of a suit; that is, what events will cause
ment.
_-,~_ the civil death of aparty, and at the same time leave
his interest surviving him. For this purpose wemust
OJ Abatement. 66
66
batement.
ature
o batement
ness the
sue n respect
o ther se era
demands
or n d erent
capactes.
hat ents
cause bate-
ment.
been orgna su cent to sustan the sut on beha
o a so one pant s now su cent to contnue
t 5 and the representat es o the deceased pan-
t are n no worse condton than the other per-
sons o the same cass who were ne er put on the
record at a.
here howe er some credtors on n ng a b
n respect o ther se era demands under a compos-
ton deed and not on beha o a the credtors o
course the death o one o them causes an abatement
as n the case o an other co-pant d ng c .
nd the other co-pant s are not credtors n the
same capact as the deceased co-pant then the
can on prosecute the sut so ar as ther nterest s
concerned and there ore the sut abates as to the
deceased co-pant as much as n an other case
o a co-pant d ng. Thus where a b was ed
b urne a udgment credtor on beha o hmse
and a other udgment credtors together wth Mor-
gan a mortgagee as co-pant and a ter decree
urne ded hs death was n e ect hed to cause
an abatement as to hm. or though r ohn each
. sad that ume s death dd not abate the
sut because Morgan mght ha e prosecuted the de-
cree et as s onor aowed a re or b urne s
representat es to be good t s cear that he on
meant that the sut was not abated so ar as urne s
and Morgan s nterests were dentca d .
e w now consder what e ents w cause an
abatement o a sut that s what e ents w cause
the c death o a part and at the same tme ea e
hs nterest sur ng hm. or ths purpose we must
5 egh . Thomas 1751 2 364.
es. sen. 312. d urne . Morgan 1 23 1
c odd . ent 1 16 1 Mer. . . 35 .
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Original frcrn
Diginzed by
F 2
(f) 31 G. 3, c. 3_. (e) 53 G. 3, c. 127, . 3.
fir t inquire, generally, what are the event by which What Events
the civil exi tence of a party i terminated. ~:n~. Abate-
A civil dissolution might formerly have been the '-v----J
1 f 1
ti I d f . Excommunica-
resu t 0 ta {lng monas IC oreers, an 0 excommum- tion and popish
cation 01' conviction of popish recusancy; but now by recusancy no
A f P
Ii ( )' , di d h in th longer cause a
ct 0 ar lament e It 1 irecte t at III t ose case civil death,
in which excommunication is to continue, no per on
pronounced or declared excommunicate shall incur
any civil penalty or incapacity whatever, save uch
imprisonment a the Court j thereby authorised to
inflict; and the disqualification arising from popi h
recusancy has been virtually, if not actually, aboli hed
by another Act of Parliament (j), by which papi t
and persons profe ing the popish religion, taking the
oath and sub cribing the declaration therein men-
tioned, were relieved from most of the penalties and
disabil itie to which they were then subject; whil t
the incapacity from taking monastic orders has long
ceased to exist at all.
The events which at the present day may cau e a
civil death during' the course of a suit, are, Death,
Marriage of a female, 0 itlawry, Attainder, and, in
the case of an alien, the commencement of a War.
First, a 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 pro e-
cuted by or against him after his death. At the mo-
merit of hi death, therefore, if his interest urvives
him, the nit, as regard him, i abated.
econdly, as to the Marriage of a female. In con e- Marriage of a
f
I '. ' ,. b I female.
quence 0 aJeme coverte s incapacity to sue or e uee,
a woman' marriage amount to a civil death; and a
her intere t sun ive her, and goe over to her hu .
band, he)' mania 'e ou ht to cau e an abatement of
67 Of Abatement.
batement. 67
rst n ure genera what are the e ents b whch hat ents
the c e stence o a part s termnated.
c dssouton mght ormer ha e been the
cause bate-
ment.
resut o takng monastc orders and o e commun- p
caton or con cton o popsh recusanc but now recusanc no
ct o Parament e t s drected tat n those cases d death
n whch e communcaton s to contnue no person
pronounced or decared e communcate sha ncur
an c penat or ncapact whate er sa e such
mprsonment as the ourt s thereb authorsed to
n ct and the ds ua caton arsng rom popsh
recusanc has been rtua not actua aboshed
b another ct o Parament / b whch papsts
and persons pro essng the popsh regon takng the
oaths and subscrbng the decaratons theren men-
toned were ree ed rom most o the penates and
dsabtes to whch the were then sub ect whst
the ncapact rom takng monastc orders has ong
ceased to e st at a.
The e ents whch at the present da ma cause a
c death durng the course o a sut are Death
Marrage o a emae utawr ttander and n
the case o an aen the commencement o a ar.
rst as to Death. s a sut cannot be nsttuted b Death.
or aganst a dead man so nether can t when com-
menced b or aganst a ng nd dua be prose-
cuted b or aganst hm a ter hs death. t the mo-
ment o hs death there ore hs nterest sur es
hm the sut as regards hm s abated.
econd as to the Marrage o a emae. n conse- Marrage o a
uence o a eme co erte s ncapact to sue or be sued
a woman s marrage amounts to a c death and as
her nterest sur es her and goes o er to her hus-
band her marrage ought to cause an abatement o
e 53 G. 3 c. 127 s. 3. / 31 G. 3 c. 32.
2
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n In I
I mze
(h) 1Yes. sen. 182.
0) Ld. Red. ed. 4, p. 58, n.
(k) Godicin. v, Ferrars, 17i2,
cited in Ld. Red. ed. 4, p. 60, n.
(g) Jackson v. Smith, 1577,
C. ry. byLambert, 81; Abergo.vrmny
v. A/;e1'gavenny, 1731, 2 E. Ca.
Ab. 1.
the suit. But here a remarkable distinction presents
itself. Ifthe woman be a plaintiff, 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 (9); her hus-
band is, without any formality, substituted in her
place, and the plaintiff may continue his suit as before,
by merely naming him, together with his wife, in the
. ubsequent proceedings (ll).
The cause of this distinction has been gi yen as fol-
lows :-" The reason of the difference between the cases
of a female plaintiff and a female defendant, seems to
be, that a plaintiff seek ing to obtain a right, the de-
fendant Illay 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 he injured by
adecree 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 with the description
which she has acquired by her marriage (k).
'fbi]' 11y, as to Outlawry. The situation of an out-
law is somewhat changed from wbat it formerly was.
An outlaw was once strictly what the name implies, a
man beyond the province of the law ;-who could not
suebecau ethe 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
Of Abatement.
Outlawry.
What Events
cause Abate-
ment.
"--.--I
68
6 batement.
hat ents the sut. ut here a remarkabe dstncton presents
cause bate- n t p -n
met. tse. 11 te oman be a pamtn the conse uences
o her c death are carred out and the sut s abated
as ar as she s concerned but she be a de endant
no abatement s caused b her marrage g her hus-
band s wthout an ormat substtuted n her
pace and thepantt ma contnue hs sut as be ore
b mere namng hm together wth hs w e n the
subse uent roceedngs // .
The cause o ths dstncton has been g en as o-
ows : The reason o the d erence between the cases
o a emae ant and a emae de endant seems to
be that a pant : seekng to obtan a rght the de-
endant ma be n ured b answerng to one who s
not entted to sue or t but a de endant mere us-
t ng a possesson the pant cannot be n ured b
a decree aganst the person hodng that possesson .
e shoud here remark that a emae pant
marres thereb causng an abatement and the hus-
band des be ore an urther step has been taken n
the sut the abatement w cease o tse her nca-
pact beng remo ed. ut the subse uent proceed-
ngs ought to be n the name and w t the descrpton
whch she has ac ured b her marrage .
utawr . Thrd as to utawr . The stuaton o an out-
aw s somewhat changed rom what t ormer was.
n outaw was once strct what the name mpes a
man be ond the pro nce o the aw who coud not
sue ecause the aw a orded hm no protecton whom
t was useess to sue because ou mght take rom hm
a that he had and e en put hm to death wthout
the nter enton o an aw. t s cear there ore
ackson . mth 1577 h 1 es. sen. 1 2.
ar b ambert 1 hernn e.nn d. ed. ed. 4 p. 5 n.
. ergo enn 1731 2 . a. k God -n . errars 1772
b. 1. cted n d. ed. ed. 4 p. G n.
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69
Original from
Digitized by
during the suit. Where the plain-
tiff is an outlaw at the institution
of the suit, Mr.Daniell inclines to
the opinion of Lord Chief Baron
Gilbert, that a bill of revivor ought
to be filed on the reversal of the
outlawry, becau e the plea of the
outlawry is a part of the record.
[1 Dan. Ch. Pro 63.J But this
argument will not apply where the
plaintiff becomes outlawed after
the institution of the suit.
(l) Killigrew v. Rillig?'ew, 1683,
1Vern. 1 4.
(m) 1 Dan. cs. Pro 59.
(n) Prac. Reg. 350.
(0) 3 Bac. Aor. 762.
(p) 1 Dan. Ch. Pro 59.
(q) 1 Dan. Ch. Pro 256.
(1') 1Dan. Ch. Pro 256.
(s) It eems to be undecided
what, if ar.y, step must be taken
by a plaintiff on the reversal of an
outlawry which has fallen upon him
that an outlaw was orioinally a man civiliter mortuus, What Events
and it followed that if a party to a suit became out- call!:teAbate-
meut.
lawed, the suit immediately cea ed as far as he wa "---v----I
concerned.
The rigour of the law again t outlaws has for Ulany
years past been considerably abated, and such persons
are now far from being without the pale of the law.
I tis still true, however, that (with the exception of
executors and administrators (l), 01' the husbands of
the same (m), next friends (n), and other persons suing
in autre droit, except relators in informations (0),) they
cannot sue in a Court of J ustice while the outlawry is
in force (p), except for the pU l'pO e of reversing the
outlawry; nor can they be made defendants to a suit
wher the demand is in rem and they are made de-
fendants as being interested therein (q); it appears"
however, that they may be sued for a demand against
them elves 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 rever al of it. It is apprehended therefore that
outlawry falling upon aplaintiff, not clothed with one
of the characters above excepted, will cause, not so
much an abatem I1t as a suspension of the suit as
far as he is concerned (s); and that outlawry falling
Of Abatement.
batement. 69
tat an outaw was orgna a man c ter nortuus. hat ents
and t oowed that a part to a sut became out- -
awed the sut mmedate ceased as ar as he was .
concerned.
The rgour o the aw aganst outaws has or man
ears past been consderab abated and such persons
are now ar rom beng wthout the pae o the aw.
t s st true howe er that wth the e cepton o
e ecutors and atmnstrators / or the husbands o
the same w ne t rends / and other persons sung
n autre drot e cept reators n n ormatons o the
cannot sue n a ourt o ustce whe the outawr s
n orce p e cept or the purpose o re ersng th c
outawr nor can the be made de endants to a sut
dere the demand s n rem and the are made de-
endants as beng nterested theren 5 t appears
howe er that the ma be sued or a demand aganst
themse es persona and cannot pead ther own
outawr r . t can hard be sad howe er where
the demand s n rem that the outaw s nterest sur-
es hs outawr athough t ma return to hm on
a re ersa o t. t s apprehended there ore that
outawr ang upon a pant not cothed wth one
o the characters abo e e cepted w cause not so
much an abatement as a suspenson o the sut as
ar as he s concerned s and that outawr ang
rew . gret 16 3 durng the sut. here the phn-
1 ern. 1 4. t s an outaw at the nsttuton
m 1 Dan. h. Pr. 59. o the sut Mr. Dane ncnes to
w Prac. eg. 350. the opnon o ord he aron
o 3 ac. br. 702. Gbert that a b o re or ought
p 1 Dan. h. Pr. 59. to be ed on the re ersa o the
g 1 Dan h. Pr. 250. outawr because the ea o the
1 Dan. h. Pr. 250. outawr s a part o the record.
s t sems to be undecded 1 Dan. h. Pr. 63. ut ths
what an step must be taken argument w not app where the
b a pana on the re ersa o an pant becomes outawed a ter
outawr whch has aen upon hm the nsttuton o the sut.
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I I I
n I I
(x) 1 Dan. Ch. Pro 50. (t) 1 Dan. cu. Pro 63.
(u) Ibid. 256.
What Events on a defendant will not cause even a suspension of
causeAbate- h' I . h ] h b 1
t
t e O1tas to 11111, were re as een macea party
men.
"---' in respect of a personal demand and not in respect
of a demand in rem.
Attainder. 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 aplaintiff 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.
Alien. Fifthly:-An alien enemy cannot sueinthis 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 were
a defendant, unless made a defendant merely as being
interested in ademand in rem. On the restoration of
peace, his right to sue is restored (x).
Bankruptcy Itmight at first sight appear that Bankruptcy and
and insolvency: Insolvencv also were causes of abatement but on
do not cause J , , ,
abatement. further consideration it will be observed that those
event deprive a man of his property only, and 110tof
his civil existence. He is still personally capable of
Of Abatement. 70
70
batement.
hat ents
cause bate-
ment.

ttander.
on a de endant w not cause e en a suspenson o
the sut as to hm where he has been made a part
n respect o a persona demand and not n respect
o a demand n rem.
ourth : person attanted or treason or eon
s ncapabe o mantanng an sut beng consdered
as aread dead t but as n the case o outawr t
seems that he ma be sued or a persona demand
aganst hmse and cannot pead hs own attander
though he cannot be a de endant mere as beng n-
terested n a demand n rem u . t s apprehended
there ore that a sut woud not abate but entre
cease as to a pant who became attanted athough
t mght not cease as to a de endant who became at-
tanted he had been made a de endant n respect o
a persona demand on .
th : n aen enem cannot sue n ths countr
athough doubtess he ma be sued or a demand
aganst hmse s nterest howe er ke the out-
aw s cannot strct be sad to sur e hm. there-
ore a war shoud break out pendng a sut n whch
an aen s concerned who thereb becomes an aen
enem t s apprehended that the sut woud be sus-
pended on and not abated as to such aen he
were a pant and not e en suspended he w ere
a de endant uness made a de endant mere as beng
hterested n a demand rem. n the restoraton o
peace hs rght to sue s restored .
ankruptc t mght at rst sght appear that ankruptc and
and nso enc so enc aso were causes o abatement but on
do not cause
abatement. urther consderaton t w be obser ed that those
e ents depr e a man o hs ro ert on and not o
hs c e stence. e s st persona capabe o
en.
0 1 Dan. h. Pr. 63.
u bd. 25 .
1 Dan. h. Pr. 56.
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Original fran
Digitized by
I N T E R r~E T A R C H I V E
suing and being sued, though his destitution of pro- What Events
1
. hi .. f d' . . h f causeAbate-
perty imits IS opportunities 0 stan lllgIII eit er 0 ment.
those conditions. Accordingly, although the language ~
of someof the earlier cases seems to represent Bank-
ruptcy and Insolvency as causing abatement, yet ex-
pressions occur in other casesof 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-
son(b) as affording an argument the other way, but
overrule it as not having been fully argued on au-
thorities.
When, however, that caseis looked to, the result of
it appears to be opposed to the doctrine of treating
bankruptcy as an abatement. I t 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 asupplemental 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 uit. This language
(y) 1714, 1P. ".266. 263, n.
(z) Anon. 1748, 1Atk. 263. (0) Chy. 1790; cited 1 Atk.
(a) Excheq, 1793; cited 1Atk. 263, n.
71
Of Abatement.
batement. 71
sung and beng sued though hs desttuton o pro- hat ents
pert mts hs opportuntes o standng n eter ot ent.
those condtons. ccordng athough the anguage
o some o the earer cases seems to represent ank-
ruptc and nso enc as causng abatement et e -
pressons occur n other cases o the same perod and
n ater ones treatng those e ents as occasonng de-
ect on .
Thus n hd . rederck t s sad that the
assgnees o a bankrupt pant contnue the sut b
orgna b n the nature o a b o re or whch
mpes that bankruptc s an abatement but n an
anon mous case n tk ns . ord ardwcke sa s
e press that bankruptc s no abatement.
gan n Da dson . uter a the ourt o -
che uer hed that t was the cear estabshed custom
o that ourt not to consder bankruptc as causng an
abatement. The re er to a case o eers . Daw-
sonb as a ordng an argument the other wa but
o errue t as not ha ng been u argued on au-
thortes.
hen howe er that case s ooked to the resut o
t appears to be opposed to the doctrne o treatng
bankruptc as an abatement. t s true that ord
Thurow sad e press that he consdered bankruptc
to be an abatement but then he adds that the as-
sgnees o a bankrupt pant contnue the sut b
orgna b n the nature o a sup eme7ta b and
that there must be a decree n the suppementa sut
tse that the orgna sut was gone b the bank-
ruptc and that the new sut b the assgnees mght
take the bene t o the ormer sut. Ths anguage
1714 1 P. . 266. 263 n.
non. 174 tk. 263. - h . 1790 cted 1 tk.
a che . 1793 cted 1 tk. 263 n.
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n I I
I mze
(e) 1 -12,1 Hare, G17. (c) 1 27,1 im.502.
(d) 1840, 3 Beav. 294.
Of Abatement.
1. On existing
proceedings.
Order to dis-
miss bill.
Effects
of Abatement.
'--.-J
72
What Events would seemto contradict the former assertion, and to
cause Abate- h } 1
ment. s ew t rat lis Lordship considered bankruptcy as
"------- causing defect and not abatement, otherwise he would
have pointed out a bill in the nature of abill of revivor
as the proper remedy.
In the course of an argument (c) it was laid down
decidedly bythe late Mr. J acob, that bankruptcy is no
abaterneut ; and the same opinion seems to be enter-
tained by Lord Langdale, IV['R., from the following
words which fell fromhis Lordship ;-" having regard
to the analogous cases of defect by bankruptcy and
abatement by marriage, &c.(d)."
Lastly, Sir J ames 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)."
Let us nowconsider the effects of abatement on the
proceedings in a suit.-As a general rule an abate-
ment has the effect 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.
Thus any order obtained previously to the t bate-
ment loses its power upon the abatement occurring,
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 prosecll tion,
and the plaintiff appeared and undertook to et clown
the cause for hearing in a limited time, and in default
the bill was to stand dismissed, and then the def ndant
died, and the time for setting clownthe cau eexpired
before the uit could be reyi ved, it was hell that th
72 batement.
hat ents wouk see to cout adct the ormer asserton and to
me nt. ew that hs ordshp consdered bankruptc as
/ causng de ect and not abatement otherwse he woud
ha e ponted out a b n the nature o a // o re or
as the proper remed .
n the course o an argument c t was ad down
decded b the ate Mr. acob that bankruptc s no
abatement and the same opnon seems to be enter-
taned b ord angdae M. . rom the oowng-
words whch e rom hs ordshp ha ng regard
to te anaogous cases o de ect b bankruptc and
abatement b marrage c. / .
ast r ames gram . has sad e -
press that bankruptc accordng to the practce
n hancer renders a sut de ect e but does not
cause an abatement e .
ects et us now consder the e ects o abatement on the
o batement proceedngs n a sut. s a genera rue an abate-
ment has the e ect o suspendng a proceedngs n
a sut e stng at the tme o ts occurrence and aso
o ncapactatng an part rom takng an urther
proceedng n t.
. n e stng Thus an order obtaned pre ous to the abate-
proceec ngs. - oses ts power upon the abatement occurrng.
rder to ds. .
mss b. and contnues suspended as ong as the abatement
asts. here there ore a moton was made b a
de endant to dsmss a b or want o prosecuton
and the pant appeared and undertook to set down
the cause or hearng n a mted tme and n de aut
the b was to stand dsmssed and then the de endant
ded and the tme or settng down the cause e pred
be ore the sut coud be re ed t was hed that the
c 1 27 1 m. 502. e 1 42 1 are 01
d 1 40 3 ea . 294.
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Original frr-rn
DI gitized by
Dick. 351; A keto v. Townsend,
li72, ibid. 471.
(k) Sellersv.Dawson,1790, cited
1A tk. 263. This case wa decided
on the uppo itiou that bankruptcy
was an abatement.
(I) Boddy v. Kent, 1816, ll\ier.
361.
(f) Gregson v. Oswald, 17 7,
1Cox, 343.
(g) I Hare,622. Sed vide Hor-
wood v. Schmedes, 1 06, 12 Yes.
.511; andAskew v. Townsend, 1712,
Dick. 471.
(11) Post, Chapter IX.
(i) Yeomans Y. Kiluinqton, liG2,
order eli missing the bill was J p nded durin . tIl Effects
abatement (f). of Abatement.
P
'r " l' '-v---I
rocess 01 contempt, equestrations, receiver lipS Procc ,in-
ap}ointed upon proce. s, subpeenas to hear jud rueut, junction, &c.
inj unctions, and other proceeding existing at th
time of the abatement, will abate with the suit. Tlii
at lea t is always their natural fate (g). But in orne
ca. e~, namely where a revivor of the suit would have
the effect of reviving those proceedings, we shall ec
that the Court will inter] ose its power, and keep the
proceedings alive for a short ti me, in order to give an
opportunity of reviving them with the revivor of tlrc
suit(lz).
There i , however, an exception to this rule in the A perpetual
f l
.. . I . 1 btai d inj unction
case 0 a perpetua injunction laVl11g )een 0 tame does not abate.
before the abatement. Such an injunction will con-
tinue in force notwith tanding the abatement (i).
Again, with respect to further proceedings ;-no II. On urther
order can be obtained during an abatement (k); and procee~ings.
I
d dismi I hill c f Order I nthe
Wiere an 01' er to Ism ISS t re 1 lor want 0 pl'OSe- cause.
cntion was obtained during an abatement, it was held
irregular (l). However, the order, if obtained, will
not be con idered a 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-
mi ,though an irregular order, had been discharged.
Hi Lordship al 0 said that the above case of Sellers
73 OJ Abatement.
batement. 73
order dsmssng the b was suspended durng the ects
abatement / . o ba tement.
Process o contempt se uestratons rece ershps Process n-
apponted upon process subpoenas to hear udgment -
n unctons and other proceedngs e stng at the
tme o the abatement w abate wth the sut. Ths
at east s awa s ther natura ate g . ut n some
cases name where a re or o the sut woud ha e
the e ect o re ng those proceedngs we sha see
that the ourt w nterpose ts power and keep the
proceedngs a e or a sort tme n order to g e an
opportunt o re ng them wth the re or o tc
sut / .
There s howe er an e cepton to ths rue n the perpetua
case o a perpetua n uncton ha ng been obtaned does not abate
be ore the abatement. uch an n uncton w con-
tnue n orce notwthstandng the abatement .
gan wth respect to urther p oceedngs no n. n urther
order can be obtaned durng an abatement / and ss-
where an order to dsmss the b or want o prose- cause
cuton was obtaned durng an abatement t was hed
rreguar . owe er the order obtaned w
not be consdered as a mere nut and accordng
n the abo e case o odd . ent where such an
order had been obtaned durng an abatement b the
death o a co-pant . ord don sad that the order
to re e coud not be obtaned unt the order to ds-
mss though an rreguar order had been dscharged.
s ordshp aso sad that the abo e case o eers
/ Grcgson . swad 17 7 Dck. 351 skew . To nsend
1 o 34 . 1772 bd. 471.
g 1 are 622. ed de oreers . Datcson 7 cted
wood . c/nnedes 1 0 12 es. 1 tk. 263. Ths case was decded
311 am s/:et . Tocnscnd 1772 on the supposton that bankruptc
Dck. 471. was an abatement.
// Post hapter . / odd . ent 1 16 1 Mer.
eomans h-n /ton 7 2 361.
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p
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n Ir I
I rtize
one plaintiff, the suit not abating as
to the other."
(0) 3 Dan. Ch. PI'. 223.
(m) 2 Dan. Ch. Pro 360.
(n) Vide 11 Yes. 312: where
Lord Eldon speak of" the death of
Process of
contempt.
Effects v. Dawson did not warrant the "iew that the irregular
~ order was a mere nullity.
Mr. Daniell (m) strongly questions the above de-
cision in Boddy v. Kent, observ ing 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. With deference, however, it ap-
pears that he iswrong in supposing that an abatement
by the death of aco-plaintiff is a total abatement (12),
although it may for some purposes have the same
effect as a total abatement; and even if it were, there
is nothing to warrant 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 arnepower 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 contempt, issued during a total abate-
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 (0).
Where aco-plaintiff died, andit 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
OJ Abatement. 74
74 batement.
ects . Dawson dd not warrant the ew that the rreguar
o batement. . . nut .
Mr. Dane w strong uestons the abo e de-
cson n odd . ent obser ng that as an abate-
ment s tota whether t occurs b the death o a soe
pant or a co-pant and as there ore there s no
person n e stence who can oppose the moton to ds-
mss nor unt the sut has been re ed an person
who can mo e or the dscharge o the order to ds-
mss t s d cut to conce e what ese coud ha e
been done than to act as the order to dsmss had
not been obtaned. th de erence howe er t ap-
pears that he s wrong n supposng that an abatement
b the death o a co-pant s a tota abatement w
athough t ma or some purposes ha e the same
e ect as a tota abatement and e en t were there
s nothng to arrant the asserton that the sut must
be re ed be ore an person can be n e stence who
can mo e or the dscharge o the order to dsmss.
The same power whch durng an abatement can pre-
ser e the e stence o an rreguar order can aso
durng the same abatement g e e stence to an order
to dscharge such rreguar order.
Process o Process o contempt ssued durng a tota abate-
contempt. ment s rreguar and ma be dscharged on moton
wth costs. nd a de endant s arrested on an
process durng an abatement he w be dscharged
wth costs to be pad b the arrestng part o .
here a co-pant ded and t beng doubt u what
nterest hs e ecutors had n the matters n tgaton
and the shewng no dsposton to become co-pan-
t s n an b o re or none was ed and the
w 2 Dan. h. Pr. 360. one pant the sut not abatng as
m de 11 es. 312 where to the other.
ord don speaks o the death o o 3 Dan. h. Pr. 223.
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Original from
Digitized by
(p) Gibbs v. Churton, 1 24, 1 260.
C. P. Cooper, 496. (1') Backhouse v. Middleton,
(q) Smart r. Floyer, 1754, Dick. 1670, 1C. C. 175; 3Ch. R . 40.
urvrvmg plaintiffs proceeded to issue an attachment Effects
again t one of the defendants for some default; upon ~
a motion calling in question the regularity of such at-
tachment, Sir J ohn 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 is uing 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 jI I tified, unless, perhaps, when the
right of partie 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 el e 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 "as dismissed a
irregular, whereupon the devisee filed an original bill
in the nature of a bill of revivor, he was not allowed to
make n e of the depositions taken under the hill 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.
75 Of Abatement.
batement. 75
sur ng pant s proceeded to ssue an attachment ects
aganst one o the de endants or some de aut upon batement.
a moton cang n ueston the reguart o such at-
tachment r ohn each . . sad that the sur-
ng pant s ought to be prepared to shew that the
representat es o the deceased pant had no nte-
rest n the sut because the had an nterest
the ssung o an attachment n the absence o persons
whose rghts that process o contempt was n part
meant to en orce was at arance wth the practce o
the ourt and that he coud not magne an case n
whch the ssung o an attachment pendng an abate-
ment coud be ust ed uness perhaps when the
rghts o partes had been decared and t was a pro-
ceedng between those partes on and strct mted
to the en orcement o ther rghts and n whch no
one ese but themse es had an concern p .
here a sut abated b the marrage o a emae ross b
pant and be ore t was re ed a cross b was
ed t was hed that the orgna b had ost ts
prort o er the cross b .
Depostons taken durng an abatement cannot be Depostons.
used a terwards. Thus where a de see o a pant
ed b mstake a smpe b o re or and e amned
wtnesses and the b o re or was dsmssed as
rreguar whereupon the de see ed an orgna b
n the nature o a b o re or he was not aowed to
make use o the depostons taken under the b o
re or because the were taken when n act there
was no cause be ore the ourt r .
here a sut abates a ter a decree has been pro- Passng a
decree.
p Gbbs hurton 1 24 1 2G0.
. P. ooper 496. r ackhouse . Mddeton
g mart r. o er 1754 Dck. 1670 1 . . 175 3 h. . 40.
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v. Vintner, 1664, ibid. 252.
(u) Finch v. Winchelsea, 1727,
1E. C. Ab. 2.
(.2') 3 Dan. Ch. Pro 225.
(8) Bertie v. Falkland, 1715,
Dick. 25.
(t) Cramborne v. Dalmahoy,
1662, 1 C. R. 231; and seePeachy
nounced, the suit must be revived before the decree
can be passed (s).
I t appears, however, that if any proceeding takes
place in a suit pending an abatement, and is not called
in question at the time of it.s 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 was matter of fact out of the decree,
and might have been taken advantage of at the hear-
ing (t)."
Where the cause is abated as to one only of several
defendant.s, 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 where a decree had been made ordering cer-
tain trustees and their cestui que trust to make a con-
yeyance of some property, and the cestui que t1'UStdied
before the conveyance had been executed, the trustees
were compelled to convey notwithstanding such par-
tial abatement (u).
So, pending apartial abatement by the death of one
defendant, process of contempt may be issued and
executed a,_'ainst the other defendants (x).
Of Abatement.
Partial abate-
ment.
Irregular pro-
ceeding must
be questioned
at the time of
its taking
place.
Effects
of'Abatement.
76
76
batement.
ects
o batement.
.
rreguar pro-
ceedng must
be uestoned
at the tme o
ts takng
pace.
Parta abate-
ment.
nounced the sut must be re ed be ore the decree
can be passed s .
t appears howe er that an proceedng takes
pace n a sut pendng an abatement and s not caed
n ueston at the tme o ts takng pace t cannot be
caed n ueston a terwards. Thus where a eme
soe ed a b and a terwards marred thereb
causng an abatement and proceeded to a decree
wthout ha ng ed an b o re or and a ter-
wards a b o re ew was ed mpeachng the decree
as ha ng been made durng an abatement the b o
re ew was dsmssed because the error was on
matter o abatement . e. matter o practce and not
to the rght and appeared not n the bod o the
decree but as matter o act out o the decree
and mght ha e been taken ad antage o at the hear-
ng .
here the cause s abated as to one on o se era
de endants t mere pre ents proceedngs rom beng
taken b whch the nterest o such de endant can be
a ected and proceedngs a ectng the other partes
on ma take pace as be ore.
Thus /here a decree had been made orderng cer-
tan trustees and ther cestu ue trust to make a con-
e ance o some propert and the cestu ue trust ded
be ore the con e ance had been e ecuted the trustees
were compeed to con e notwthstandng such par-
ta abatement 0-
o pendng a parta abatement b the death o one
de endant process o contempt ma be ssued and
e ecuted aganst the oter de endants .
erte . akand 1715
Dck. 25.
t ramorne . Damaho
1662 1 . . 231 and see Peach
. ntner 16G4 bd. 252.
u nch . nchehea 1727
1 . . b. 2.
3 Dan. h. Pr. 225.
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77
Original from
Digitized by
Exp. Armsironq, 1790, 3 Bro. C.
C.238.
(a) Jones v. Williams, 1837, 1
C. P. Cooper, 48 .
(b) Roundell v. Currer, 1801,
6 Yes. 250.
(y) Humphreys v. Hollis, 1821,
J ac. 73.
(z) In a case of lunacy, where a
reference had been made to the
Ma ter, and then the lunatic died,
it was said that the Master should
make hi report uotwith tanding.
And where a bill was retained with IiI erty to the Effects
plaintiff to bring an action against one of the defen- of Abatement.
dants, and there wa no direction as to the other de- ~
fendants attending the trial, and one of the e 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 otherwi e if the defendant who died had
1een directed to attend the trial (y).
There are some exceptions to the rule that no pro- Exceptions to
di b h 1 '.1' b ( ) the rule.
cee 111g'S can e ao 111a suit uurmg an a atement z . P t f
aymen 0
Thus where a sum of money had been ordered to be money out of
paid by one defendant to another defendant, and the Court.
plaintiff died before the money was paid, Sir L. Shad-
well, '\ . C., held 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-
with tanding the abatement, and that there wa no oc-
ca ion towait until a1ill of revivor should be filed(a).
Sometimes money may he paid out of Court, even
where no order precisely to that effect has been made
previously to the a] atement. Thus, where a decree
had given an infant plaintiff liberty to apply, at twenty-
one to have certain tock and cash transferred and
paid to him, and the plaintiff died after twenty-one,
without having so applied, and his admini trator 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 (b).
The. e orders are of frequent occurrence, 201 0, where,
Of Abatement.
batement. 77
nd where a b was retaned wth bert to the ects
pant to brng an acton aganst one o the de en- pt ba t ement.
dants and tere was no drecton as to the other de-
endants attendng the tra and one o these other
de endants ded and the acton was tred be ore the
sut was re ed t was hed that the tra was not
pre udced thereb . ut t was aowed that t woud
ha e been othe wse the de endant who ded had
been drected to attend the tra .
There are some e ceptons to the rue that no pro- ceptons to
ceedno-s can be had n a sut durno an abatement 2 . 1
.-5 / Pa ment o
Thus where a sum o mone had been ordered to be mone out o
pad b one de endant to another de endant and the -
pant ded be ore the mone was pad r . had-
we . ed that as the proceedng was one n
whch t was pan no one had an nterest e cept the
de endants t mght wthout ncon enence go on not-
wthstandng the abatement and that there was no oc-
cason to wat unt a b o re or shoud be ed a .
ometmes mone ma be pad out o ourt e en
where no order precse to that e ect has been made
pre ous to the abatement. Thus where a decree
had g en an n ant pant bert to app at twent -
one to ha e certan stock and cash trans erred and
pad to hm and the ant ded a ter twent -one
wthout ha ng so apped and hs admnstrator pet-
toned or the trans er and pa ment to hm o the
stock and cash. ord don made the order the rght
o the pettoner beng cear .
These orders are o -ecpent occurrence aso where
umphre s o h 1 21 d . rmstron 1790 3 o. .
ac. 73. . 23 .
r n a case o unac where a a ones . ams 1 37 1
re erence bad been made to the . P. ooper 4 .
Master and then the unatc ded ounde . urrer 1 01
t was sad that the Master shoud es. 250.
make hs report notwthstandng.
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rlgln I
DI itized b
Effects by a decree or decretal order, the dividends of a fund
of Abatement.
_-.,,-_ in Court have been directed to be paid to atenant 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
acase 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
beascertained 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 byjoining in it as peti-
tioners, or by being served with it.
I t 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. 78
7 hatement.
ects b a decree or decreta order the d dends o a und
a emen . - ourt ha e been drected to be pad to a tenant or
e and bert has been g en to the partes nter-
ested to app or the und at hs death. The tenant
or e probab sur es some or a o the partes to
the sut so that when on hs death the occason or
app ng to the ourt respectng the und arses the
sut s and perhaps has ong been abated. n such
a case t s not necessar or the partes nterested to
re e the sut but the ma present a petton or
trans er o the und on whch and b means o a
re erence to the Master necessar ther rghts w
be ascertaned and determned.
howe er b the decree or decreta order ur-
ther drectons ha e been reser ed the hearng o the
cause s not at an end but t must be agan set down
or hearng. Ths cannot be done pendng an abate-
ment and the sut must there ore be pre ous re-
ed.
t s conce ed that when a petton or the abo e
purpose s presented n an abated sut a persons
who woud ha e been made partes to a b o re or
such a course had been adopted must be made
partes to the petton ether b onng n t as pet-
toners or b beng ser ed wth t.
t has been sad that the pa ment o the und can-
not be ordered uness a partes nterested g e ther
consent to t. Thus where a sut or the admnstra-
ton o an estate abated b the marrage o a emae
co-pant an n ant and a petton was presented
that the e ecutors n the cause mght rase mone b
sae or mortgage o a certan term and pa t to the
de endant wth a ew o puttng an end to the sut.
ord ardwcke sad that b consent o a partes
mone mght be ordered to be pad out o ourt
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Original fr m
Digitized by
(f) Clapham v. Phillips, 1674,
Rep. temp. Finch. 169; Bucking-
ham v. Sheffield, 1739, Amb. 5 6.
(g) Boddy v. Kent, 1 16, I Mer.
361.
(c) Beard v. Powis, 1751, 2
Yes. sen. 399.
(d) 1Yes. sen. 185.
(e) Cook v. Bolton, 1828, 5
Russ. 282.
during an abatement, but not without such consent; Effects
and that therefore in this case he could not, on mo- of Abatement.
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 110tgive 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 'raisemoney for a purpose entirely new.
So an order may be made, pending an abatement, Delivery of
e 1 d l' f d d d .. b ht i deedsand
lor t ie e Ivery up 0 ee s an writings roug t mto writings.
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 cause.
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 nuncpro tunc, and such enrolment may decree.
be made notwithstanding the abatement (f).
And where any order, with the above excep- Dischargeof
tions, has been made and executed during an abate- irregular order.
ment, this being, as we have seen, irregular, a
motion may be made pending the abatement, to dis-
charge it (g).
Where a commission to examine witnesses abroad Depositions.
has i sued before the abatement, depositions taken
under it, during the abatement, will be good, if neither
79
Of Abatement.
batement. 79
durng an abatement but not wthout such consent ects
and that there ore n ths case he coud not on mo- o ba t ement.
ton or petton order mone to be rased out o the
estate because t was mted n remander to the
n ant co-pant n ee who coud not g e her con-
sent and that he coud on do so b a decree at the
hearng c . Perhaps howe er the abo e case can
hard be consdered to be e act n pont the ob ect
beng not to pa mone to a part entted to t but
to rase mone or a purpose entre new.
o an order ma be made pendng an abatement De er o
2eds an
rtngs.
or the de er up o deeds and wrtngs brought nto
ourt or a re erence ma be made to the Master or
n ur to whom the beong d .
here great dea had occurred n the prosecuton onduct o the
o a decree n a credtors sut or the admnstraton
o assets a credtor was aowed to app durng an
abatement caused b the death o the de endant to
ha e the conduct o the cause e .
n order ma be obtaned durng an abatement to nroment o
enro a decree nunc pro tunc and such enroment ma -
be made notwthstandng the abatement .
nd where an order wth the abo e e cep- Dscharge o
tons has been made and e ecuted durng an abate- o -
ment ths beng as we ha e seen rreguar a
moton ma be made pendng the abatement to ds-
charge t g .
here a commsson to e amne wtnesses abroad Depostons.
has ssued be ore the abatement depostons taken
under t durng the abatement w be good nether
c eard . Po s 1751 2 / apham . Phps 1674
es. sen. 399. ep. temp. nch. 169 uckng.
d 1 es. sen. 1 5. ham . he ed 1739 mb. 5 6.
e ook . oton 1 2 5 g od d/ . e 6 Mer.
uss. 2 2. 361.
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rI In I
I mze
(k) Davies v. Davies, 1804, 9
Yes. 461.
(1) Tlt01pe Y. Mattingley, 1842,
1Phill. 200.
(h) Thompson v, Took, 1i33,
Dick. 115; 3P. " . 195; Peters v ,
Robinson, 1747, Dick. 116; Sin:
clair Y. James, 1755, ibid. 27i.
(i) Winter v. Dancie, Toth. 163.
the commissioners nor the witnesses have received
notice of the abatement (ll).
And where a ferne sole sued out a commission to
examine witnesses, and married before they were
examined, their depositions were ordered to stand (i).
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 (ll).
Where one of several defendants died pending their
joint appeal to the House of Lords, and the House of
Lords admitted his representatives, on their petition,
a parties to the appeal, and made an order varying
the decree below, and dismissing the bill as again ..t the
deceased defendan t with costs; it was held that that
order might be made an order of the Court below
without first reviving the snit, because it was an order
again t the defendant, as the party on the record, and
not against his representative (l).
Of Abatement.
Order 0_
appeal.
J udgment.
Effects
of Abatement.
"--v-----'
80
batement.
ects the commssoners nor the wtnesses ha e rece ed
o batement. . p -
notce 01 the abatement // .
nd where a eme soe sued out a commsson to
e amne wtnesses and marred be ore the were
e amned ther depostons were ordered to stand .
udgment. ter a cause has been heard the udgment oows
as a matter o course and s or most purposes con-
sdered as contemporaneous wth the hearng . t has
been hed there ore that the death o a de endant
a ter the hearng but be ore udgment has been pro-
nounced w not pre ent the ourt rom g ng ts
udgment .
rder on ere one o se e a de endants ded pendng ther
ppea . ont appea to te ouse o ords and the ouse o
ords admtted hs representat es on ther petton
as partes to the appea and made an order ar ng
the decree beow and dsmssng the b as aganst the
deceased de endant wth costs t was hed that that
order mght be made an order o the ourt beow
wthout rst re ng the sut because t was an order
aganst the de endant as te part on te record and
not aganst hs representat es /
h Thompson . Took 1733 k Da es . Da es 1 04 9
Dck. 115 3 P. . 5 Pc en . es. 461.
obnson 17 7 Dck. 116 n- T/orpe . 3 a /n e/ 2
car . ames 1755 bd. 277. 1 Ph. 200.
nter . Dance Tot. 163.
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Nature
of Revivor.
~
Original from
Diqitize by
G
and commence de novo by original
bill. Spencer v. Wray, 16 7, I
Vern. 463; 3 Atk. 486.
(b) Ferrers v. Cherry, 1701, 1
E. C. Ab. 4; Ld. Red. ed, 4, p,
80.
(a) I t must, however, be re-
membered that the adoption of the
permission to revive the suit is
wholly optional, and the old or
new plaintiff, as the case may be,
may, insteadof adopting that course,
altogether abandon the abated suit,
AFTER a suit ha become abated, it may be, as we
have already seen, revived or restored to it former
condition (a) by certain processes, all producing the
same result in the end, but varying in their forms,
names, and modes of operation according to the me-
diate or immediate privity with the decea ed party in
which the party stands, upon whom the urviv mg
intere t devolves.
The suit may also, if necessary, he only pCl'rtially
revived. Thus, if consistent with the relief prayed, a
suit may be revived so far as the interest of a deceased
party's Teal e tate is concerned therein, by bring-ino'
his heir before the Court, without bringing hi peT-
sonal representative before the Court in re pect of
the intere t of uch party's personal estate, or ince
ersi: (b).
But although a nit may be revived a to part of
the matter in l itigation, it cannot be revived a to part
of the proceedinqs, That i,are, ivor cannot be made
to operate from a particular period of the cau e only;
" but the whole proceedings, bill, an wer, and orders
made in the can e, must stand revived ; for the re-
OF RE'IVOR.
CHAPTER VI.
81
1
PT .
.
ter a sut has become abated t ma be as we ature
ha e aread seen re ed or restored to ts ormer o e or.
condton a b certan processes a producng the
same resut n te end but ar ng- n ther orms
names and modes o operaton accordng to the me-
date or mmedate pr t wth the deceased part n
whch the part stands upon wom the sur ng
nterest de o es.
Te sut ma aso necessar be on arta
re ed. Tus consstent wth the ree pra ed a
sut ma be re ed so ar as the nterest o a deceased
part s rea estate s concerned theren b b-ngng
hs er be ore the ourt wtout brngng hs er-
sona representat e be ore the ourt n respect o
the nterest o such part s persona estate or ce
ersa h .
ut athough a sut ma be re ed as to part o
te hutter n tgaton t cannot be re ed as to part
o the proceed gs. That s a re or cannot be made
to operate rom a partcuar perod o the cause on
but the woe proceedngs b answer and orders
made n the cause must stand re ed or the re-
a t must howe er be re- and commence de no o b orgna
membered that the adopton o the b. pencer . ra/ 1G 7 1
permsson to re e the sut s ern. 46 . 3 tk. 4 .
who optona and the od or b errers . herr 1701 1
new pant as the case ma be . . b. 4 d. e . e . 4 p.
ma nstead o adoptng that course 0.
atogether abandon the abated sut
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n rr I
I I I b
1723, Dick. 42, where the decree
gave a female plaintiff her costs,
and was signed and enrolled, and
the accounts taken, andthe plain-
tiff married before the costs were
taxed, she and her husband were
held entitled to revive the suit for
the costs.
(g) 1794, 2Ves. jun. 313; 1796,
3Yes. 195.
(c) For. Rom. 174.
(d) Huggins v. Yor'k Buildings
c, 1740,2 E. C. Ab. 3; Ryland
v . Latouche, 1820, 2Eli. 566.
(e) AU. Gen. v. Barlcham, 1661,
Hardress, 201.
(f) Kemp v. Mackrell, 1754,3
Atk. 811. This rule, however, ap-
pears to apply to abatements by
death only, and not to abatements
by marriage. In Sayer v. Sayer,
Nature vivor is but a continuation of the same suit, and it
~ 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 (d).
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,
posesa Suft the suit may be revived. This however isuniversally
mayberevived, "
'-..--I true only as regards the machinerp 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 (f). Lord Hardwicke, how-
ever, in many cases expressed his opinion that he
thought this avery hard rule.
It makes no difference whether the abatement arises
fromthe 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
Of Revivor. 82
2 e or.
ature or but a contnuaton o the same sut and t
t o e or. cannot be a contnuaton o the same sut uness t
proceeds rom where the other e t o c .
here a sut has been re ed b a wrong person
as an e ecutor under a re oked w the proper course
or the rght part to pursue s to re e de no o.
e cannot obtan an bene t rom the wrong re-
or d .
re ed sut ma be agan and agan re ed
unt the nterest o the thng n ueston be deter-
mned e .
or what Pur- e ha e sad that whene er an abatement occurs
poses a ut - g - g e ed. Ths howe er s un ersa
ma be re ed. -
- true on as regards the machner o the sut or wth
re erence to the sub ect matter o the sut t must be
ot or costs rece ed wth some mod caton. at the tme o
the abatement the sut has become entre concuded
wth the e cepton o the pa ment o the costs the
partes w not n genera be permtted to re e t
mere or that purpose / . ord ardwcke how-
e er n man cases e pressed hs opnon that he
thought ths a er hard rue.
t makes no d erence whether the abatement arses
rom the death o the part who s to pa the costs or
the death o the part who s to rece e them. t s
true that n Morgan . cudamore g where the part
who was to rece e the costs ded a ter the Master had
c or. om. 174. 1723 Dck. 42 where the decree
d uggns . ork udngs ga e a emae pant her costs
o. 1740 2 . . b. 3 and and was sgned and enroed and
. atouche 1 20 2 . 566. the accounts taken and the pan-
e tt. Gen. . ar/cham G t marred be ore the costs were
ardress 201. ta ed she and her husband were
/ emp . Mac cre 1754 3 hed entted to re e the sut or
tk. 11. Ths rue howe er ap- the costs.
pears to app to abatements b 1794 2 es. un. 313 1796
death on and not to abatements 3 es. 195.
b marrage. n oger . oger
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Original from
Digitized by
(h) 1820,5 Mad.375. Yes.sen.579;Hall v.Smith, 1785,
(i) Edgill v.Brown, 1732,:Dick.Dick. 649; 1 Bro. C. C. 438;
62; White v. Hayward, 1752, Lowtenv. Corporationof Colchester,
Dick.173; 2Yes.sen.461; Kemp 1817,2Mer.113.
v. Mackrell, 1754,3Atk. 811; 2 (k) 3 Dan.Ch.Pro 198.
G2
settled the amount, but before the report was signed, ForwhatPur-
Lord Ros..lyn is reported to have said that, in analogy mPoasesba SU.it d
y erevive.
to the rules of common law, he doubted whether the '-.,--I
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 pay them
died, because this would involve a question as to
assets with his executor; hut in Jupp v. Geed1zg (h),
Sir J ohn Leach, V. C., after agreeing with Lord Ross-
lyn that there could be no revivor against the payer's
represcntativ for costs untaxed, said that his Lord-
ship must have been misunderstood by the reporter of
the last ca e, 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 Unlessthe
. ~ WI costshavebeen
untaxed at the tune of the abatement. iere 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 ajudgment 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 (k).
So where the plaintiff's solicitor, at the request of Or leftun-
h 1
[' d ' 1" h d d h taxedby
t e ueren ant s so icitor, a agree to postpone t especial agree-
taxation of costs decreed to be paid to the plaintiff, ment.
on an undertaking that the plaintiff should not be
prejudiced thereby, and the plaintiff died after the
83
Of Reoioor,
e or. 3
setted the amount but be ore the report was sgned or what Pur-
ord oss n s reported to ha e sad that n anaog ma bere ed
to the rues o common aw he doubted whether the /
representat e o the part who was to rece e the costs
mght not re e or costs unta ed athough t woud
be otherwse where the part who was to m them
ded because ths woud n o e a ueston as to
assets wth hs e ecutor but n up . Geerng h
r ohn each . a ter agreeng wth ord oss-
n that there coud be no re or aganst the pa ers
representat e or costs unta ed sad that hs ord-
shp must ha e been msunderstood b the reporter o
the ast case when he made hm sa that there was a
d erence at aw as to costs between the deaths o
the pa er and the rece er or that there was no such
d erence.
The abo e rue appes on to costs whch reman ness the
unta ed at the tme o the abatement. here the ta ed
costs ha e been actua ta ed and the Master s cer-
t cate sgned there ma be a re or or costs be-
cause the ha e then become a udgment debt and a
udgment ma be re ed n e ut as at aw . ut
n order to entte a part to re e the ta aton must
ha e been compete b the Master s ha ng sgned hs
cert cate otherwse the costs w be consdered as
unta ed .
o where the pant s soctor at the re uest o e tun-
the de endant s soctor had agreed to postpone the speca agree-
ta aton o costs decreed to be pad to the pant ent.
on an undertakng that the pant shoud not be
pre udced thereb and the pant ded a ter the
h 1 20 5 Mad 375. es. sen. 579 a . mth 17 5
g . roon 72 ck. Dck. 049 1 ro. . . 43
62 hte . ar/t ard 1752 owten . orporatono ochester
Dck. 173 2 es. sen. 461 emp 1 17 2 Mer. 113.
. Mackre 1754 3 tk. 11 2 /- 3 Dan h. Pr. 19
G 2
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Oi rtrzed b
(0) Blowerv.Morretts,ubisupra.
(p) Johnson v. Peck, 1752, 2
Yes. sen. 465 ; Blower v. Morretts,
ubi supra.
(q) For. Rom. 181.
(r) Gouldv. Barne ,1748, Dick.
13'; contra, S. C., Beames on
Costs, ed. 1 40, pp. 20, 133.
(I) Tucker v. Wilkins, 1835. 7
Sim. 349.
(m) 3 Dan. Ch. Pro 199.
, en) Blower v. Morretts, 1754,
3 Atk, 772; Dick. 254; Kemp V.
Mackrell. 1754, 3 Atk. 811; 2
es. sen. 579; Jenour v. Jenour,
1805, 10 Ve , 572.
For further
discovery.
For what Pur- costs were taxed, but before the Master's certificate
po es a Suit I db' I 1 lai iff" .
maybe revived. ia een sI gnee, t re p amti s representative was
"'-. allowed to revive the suit, and to procure the ]\1aster
to make his certificate nuncpro 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 (l). 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 w-hich has been laid down.
Or where the Another exception to the above rule respecting
costs are to be
paid out of a revivor for costs, is where they have been directed to
particular fund. be paid out of a particular estate or fund (n); or are
decreed against an executor out of assets (0). I n this
case they do not" die with the person," but are con-
sidered as a charge or lien on uch particular 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.
I f any thing else, however slight, remains unexecuted
at the time of the abatement, there may be a revix 01'.
"I fby the decree the party isto pay asum ofmoney(p),
01' if a duty is decreed, or if he is to deliver over a
bond 01' deed, or if any thing is annexed to the decree
besides costs, the suit may be revived (q)."
Ithas been said that where a suit for discovery
abates after answer, the plaintiff cannot revive it for
the purpose of obtaining a further discovery (r). But
thi al pears to be a mistake; the plaintiff' I llay revive
OJ Revivor.
84
4 e or.
or what Pur- costs were ta ed but be ore the Master s cert cate
na be re ed. been sg ed the pant s representat e was
aowed to re e the sut and to procure the Master
to make hs cert cate mt c ro tunc and date t be ore
the death o the pant r . hadwe .
obser ng that the agreement amounted n act to
an agreement that the sut shoud be re ed . ut
t s to be remarked sa s Mr. Dane m that the
crcumstances o that case were er speca and can-
not n an wa be consdered as mpugnng the genera
rue whch has been ad down.
- where the nother e cepton to the abo e rue respectng
costs are to be . p . .1 t
pad out o a re or tor costs s where the ha e been drected to
partcuar und pad out o a partcuar estate or und or are
decreed aganst an e ecutor out o assets 0 . n ths
case the do not de wth the person but are con-
sdered as a charge or en on such artcuar estate
und or assets.
course the abo e doctrne as to costs appes
on where a the rest o the sut has been wound up.
an thng ese howe er sght remans une ecuted
at the tme o the abatement there ma be a re or.
b the decree the part s to pa a sum o mone
or a dut s decreed or he s to de er o er a
bond or deed or an thng s anne ed to the decree
besdes costs the sut ma be re ed .
or urther t has been sad that where a sut or dsco er
sco er . abates a ter answer the pant cannot re e t or
the urpose o obtanng a urther dsco er r - ut
ths appears to be a mstake te ant ma re e
/ Tucker . kns 1 35 7 0 Dower .Morretts ubsupra.
m. . 4 . 2 ohnson . Peck 1752 2
w 3 Dan. h. Pr. 199. es. sen. 465 ower . Morre/ts
n ower . Morretts 1754 nb supra.
. tk. 772 Dck. 254 emp . or. om. 1 1.
Mackre 1754 tk. 11 2 r G om . arns. 174 . Dck.
es. sen. 579 enour . enour 13. 5 contra . eanes on
1 05 10 es. 572. osts ed. 1 40 pp. 20 133.
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Oi gitized by
(t) Williams v. Arthur, 1663,
1Ch. Ca. 37.
(s) Dodson v. Juda, 180-1, 10
Yes. 31.
for further di cov ry, although the defendant cannot For what Pur-
revive for the purpo of obtaining' his costs (s). po_e~l a u.itd
may J e revi V
o if, in drawin . up a decree, some thing. have ~
been omitted, and the defendant die after the decree ;~i~ufo~~;~
has been enrolled, the suit may be revived for the decree.
purpose of supplying the omission (t).
We will now inquire what party i entitled to revive What Party
an abated suit, and, where several are entitled, which ~:i~.revive a
has the prior right. And it must be understood that "-..----J
the question here is, not 'Who i the person that suc-
ceeds to the interest of the deceased party, which i a
que tion of general law, and foreign to the pre ent
treati e, but whether that I erson , whoever he may be,
or ome surviving party to the suit, and which of such
survivin .parties, is the propel' party to revive the uit;
The first great distinction on this subject relates to
the period at which the suit bas 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 intere t, is a
much interested in prosecuting a decree, and as much
entitled to do so, a a plaintiff, or a person who suc-
ceed to a plaintiff" interest; whereas, until decree,
the suit belongs exclu ively to the plaintiff 01' plain-
tiffs, and none but a plaintiff', or aperson succeeding to
a plaintiff' interest, has any rigllt 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 death of a defendant, the plaintiff is
obviou ly the only I er on who can re ive. If there
be a ole plaintiff, and the abatement i occasioned
5 OJ Revivur.
e or. 5
or urter dsco er utoug the de endant cannot or what Pur-
re e or the purpose o obtann - hs costs s . .
_ o ma -e o ed.
o n drawng- up a decree some thngs ha e
been omtted and the de endant des a ter the decree omsson m a
has been enroed the sut ma be re ed or the decree
purpose o supp ng the omsson t .
e w now n ure what part s entted to re e hat Part
an abated sut and where se era are entted whch gu
has the pror rght. nd t must be understood that
the ueston here s not who s the peson that suc-
ceeds to the nterest o the deceased part whch s a
ueston o genera aw and oregn to the present
treatse but whether that person whoe er he ma be
or some sur ng part to the sut and whc o such
sur ng partes s the proper part to re e the sut..
The rst great dstncton on ths sub ect reates to
the perod at whc the sut has arr ed when t be-
comes abated that s to sa whether a decree has
been pronounced n t or not. ter decree a the
partes to the sut whether pant s or de endants
are e ua actors n the sut and a de endant or a
person who succeeds to a de endant s nterest s as
much nterested n prosecutng a decree and as much
entted to do so as a pant or a person who suc-
ceeds to a pant s nterest whereas unt decree
the sut beongs e cus e to the pant or pan-
t s and none but a pant or a person succeedng to
a pant s nterest has an rght to carr t on.
Ths beng premsed et us rst consder ths ues- e ore decree.
ton n the case o a sut abatng be ore decree.
there be a soe pant and the abatement s oc-
casoned b the deat o a de endant the pant s
ob ous the on person who can re e. there
be a soe pant and the abatement s occasoned
6 Dohoa . uda 1604 10 0 ans . rthur 10 63
es. 31. 1 th. a. 37.
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I rtrze b
11Yes. 306.
(y) 1829, 1R. &M. 10.
(z) Anon. 1824, 2 Law J.
Chy.170.
(u) Finc7l v. Winc7leZsea, 1727,
1E. C. Ab. 2; Livesey v. Livesey,
1829, 1R. & M. 10.
(x) Fallowesv. Williamson, 1805,
Of Revivor.
There is no
priority.
What Party
may revive a
Suit.
86
by his death, the person who succeeds to his interest
is clearly the only person entitled to revive. If there
--v---' are several plaintiffs, and the abatement is occasioned
by the death of a defendant, the plaintiffs alone canre-
vive, but they may either all join inreviving, or anyone
or more of them may revive alone(u), 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(x), always however
bringing forward as defendants, such of the plaintiffs,
or their representatives, as do not join in reviving.
In the latter cases, where the right of reviving is
not confined to oneperson) 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 rig'ht
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
tojoin 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
ha made such application, and that the surviving co-
plaintiffs have refused to join with him(z). It may,
6 e or.
hat Part b hs death the person who succeeds to hs nterest
u / s cear the on person entted to re e. there
are se era pant s and the aDatement s occasoned
b the death o a de endant the pant s aone can re-
e but the ma ether a on n re ng or an one
or more o them ma re e aone / brngng the
others be ore the ourt as de endants. there are
se era pant s and the abatement s occasoned b
the death o one o them the sut ma be re ed
ether b the sur ng pant s or an o them or
b the person who succeeds to the nterest o the
deceased pant or b that person ont wth the
sur ng pant s or an o them a awa s howe er
brngng orward as de endants such o the pant s
or ther representat es as do not on n re ng.
There s no n the atter cases where the rght o re ng s
prort . con ned to one person t ma be uestoned whe-
ther a the persons entted to re e ha e an e ua
rght to do so or whether there e sts an rue o
prort among them e cudng some rom re ng
unt the others ha e decned to e ercse ther rght
to do so. t woud appear rom the abo e cted case
o ese . ese that a re or b an co-
pant w be su cent to pre ent the other co-
pant s rom re ng whether the ha e re used
to on n such re or or not but t has been hed
that where the representat e o a deceased co-pan-
t re es he must app to the sur ng co-pant s
to on wth hm n hs re or be ore he can proceed
to re e wthout them and brng them orward as de-
endants and that n hs b he must state that he
has made such appcaton and that the sur ng co-
pant s ha e re used to on wth hm :: . t ma
nch . nchesea 1727 11 es. 30G.
1 . . b.2 ese/ . ese 1 29 1 . M. 10.
1 29 1 . M. 10. non. 1 24 2 aw .
ao es . anson 1 05 h . 170.
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87
Original from
Digitized by
however, it is apprehended, be laid down, that in this, What Party
and in other cases, in which there are several per ons~a'Ytrevive a
.::lUI.
qualified to revive, all are equally qualified; and that "-...----I
if they do not agree among them elves who shall re-
vive, the person who ha the start in point of time
acquires the best rigllt to revive the suit.
This is of the less consequence because it has been
held that the per on reviving a suit does not thereby
necessarily acquire the conduct of it, if there are per-
sons till in existence who had originally such con-
duct (a). It is true that the case cited in the note is a
caseof 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 in ti-
tuted or were conducting it, merely on the ground of
hi having been more expeditious than they, in 1'e-
vi, ing after abatement.
In consequence of the rule that none but plaintiffs, Whether a
or thosewho succeed to plaintiffs' interests, can revive :! ::df~~tdfs~Y
before decree, the defendants to a suit may be thrown missal in de-
. . f I d' b . d .. h fault of revivor.
into a pam u pre icament y any In ecision on t e
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, andthey are incapa-
ble of reviving the suit for the purpose of making that
motion. The hardship of this ha induced the Court,
on some occasions, to interfere on a defendant's be-
half, and to entertain amotion on his part, calling on
the party entitled to revive, to decide within agiven
period whether he will revive the abated suit or aban-
don it for ever ;-whil t in other case the Court, al-
(a) Burne) v. M01'flan, 1823, 1S. &S. 358.
Of Reoioor.
e or. 7
howe er t s apprehended be ad down that n ths hat Part
and n other cases n whch there are se era persons /
ua ed to re e a are e ua ua ed and that
the do not agree among themse es who sha re-
e the person who has the start n pont o tme
ac ures the best rght to re e the sut.
Ths s o the ess conse uence because t has been
hed that the person re ng a sut does not thereb
necessar ac ure the conduct o t there are per-
sons st n e stence who had orgna such con-
duct a . t s true that the case cted n te note s a
case o abatement a ter decree but t s apprehended
that the same prncpe appes to cases o abatement
be ore decree and that no person w be aowed to
wrest the prosecuton o a sut rom those who nst-
tuted or were conductng t mere on the ground o
hs ha ng been more e pedtous than the n re-
ng a ter abatement.
n conse uence o the rue that none but pant s hether a
or those who succeed to pant s nterests can re e o -
be ore decree the de endants to a sut ma be thrown mssa n de-
. T 1 . . . aut o re or.
nto a pan u predcament b an ndecson on the
part o those who aone can determne whether the
sut sha be re ed or not. sut ma be kept
hangng o er the heads o such de endants or an n-
de nte perod or the cannot n strctness mo e n
an abated sut to dsmss the b and the are ncapa-
be o re ng the sut or the purpose o makng that
moton. The hardshp o ths has nduced the ourt
on some occasons to nter ere on a de endant s be-
ha and to entertan a moton on hs part cang on
the part entted to re e to decde wthn a g en
perod whether he w re e the abated sut or aban-
don t or e er whst n other cases the ourt a-
a urne . Morgan 1 23 1 . . 35 .
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,I InI
I mze
on this point j vide S. C. cited 3
Beav. 294, n.
(e) 1840, 3 Beac 290 j vide
etiam Chichester v. Hunter, 1 4],
3 Beav. 491.
(b) 1 23, T. &R. 258, revers-
ing S. C. 1 S. & S. 249.
(c) 18~4, 6 im, 461.
(d) 1838, 8 im, 277. It ap.
pears, however, that His Honor
ub equently altered his opinion
'What Party though acknowledging the abstract justice of such an
S
ma'Y trevive a interference, has con idered itself precluded on techni-
Ul
'"-v---Jcal grounds from taking any step in the matter.
Thus, in Adamson Y. H-all (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), where adefendant 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), however, where the abate-
ment occurred by the death of a sole plaintiff, the
same learned judge refused to make such order.
But in Choioick v. Dimes (e), where a sole plaintiff
died and the defendant moved that his representative
might be ordered to revive in a limited tirue, or that
the bill should be dismissed without costs, Lord Lang-
dale, IVI. 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 decea. ed 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 the
representatives had appeared and stated no sufficient
reasons against them. And although there might, as
I conceive, have been some modification of the orders
Of Revivor. 88
e or.
hat Part toug acknowedgng the abstract ustce o such an
dt nter erence has consdered tse precuded on techn-
ca grounds rom takng an step n the matter.
Tms n damson . a b where an abatement
occurred b the death o a co-pant ord don
on the appcaton o the de endant ordered the sur-
ng pant s to e a b o re or wthn three
weeks or that n de aut thereo the orgna b shoud
stand dsmssed wth costs.
n urne . engton c whe e a de endant ded
r anceot hadwe . made the same order
on the moton o the de endant s representat e the
tme aowed to the pant to re e beng a month.
n anham . ncent d ho e er where the abate-
ment occurred b the death o a soe pant the
same earned udge re used to make such order.
ut n howck . Dmes e where a soe pant
ded and the de endant mo ed that hs representat e
mght be ordered to re e n a mted tme or that
the b shoud be dsmssed wthout costs. ord ang-
dae . . a ter dscussng se era cases n a our o
the moton proceeded thus These orders were made
b ord don and athough t does not appear that
n an o them the representat e o the deceased part
appeared and ressted the moton et cannot suppose
that orders so speca passed wthout consderaton or
that the are such as woud not ha e been made thp
representat es had appeared and stated no su cent
reasons aganst them. nd athough there mght as
conce e ha e been some mod caton o the orders
h 1 23 T. . 25 re erson ths pont de . . cted 3
ng . . 1 . . c . 249. ea . 294 n.
c 1 34 G m. 4G1. e 1 40 3 ea . 290 de
r 1 3 m. 277. t ap- cta n hchester . unter 1 41
pears howe er that s onor 3 ea . 491.
subse uent atered hs opnon
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Original flT'm
U N I V E R S I TY OF C A L I F OR N I A
Digitized by
I N TE R N E T A R C H I V E
not actually, have been a revivor
for costs only, which, as we have
seen, the Court will not generally
permit.
( g ) I '12,I Hare, 617. The case
of Dryden v. Wal}'Q1'd, I 42, 1Y.
&ceu. C. C. 625, is exactly imi-
J ar, where Sir J . L. Knight Bruce,
, . C., held the same opinion.
(f) In the above case of Cho-
wick v. Dimes, the dismissal of the
bill was moved for u:ithout costs;
because, if the representative of the
decea ed plaintiff does not adopt
the suit, he is, as we have seen,
not liable t the costs of it; and
also becau e, if he were liable, the
motion would virtually, although
a to eo ts, if the r presentative had appeared, there \Vhat Party
1
I I' f h d mayreivea
seems n reason to C ispute t ie r o'u arrty 0 t e or er uit.
in any other respect; and I apprehend that if the e '-v---'
ord rs had be n brought to the attention of the Vice
Chane llor, he would have decided the case of Canluini
v. Vincent differently. The inconvenience would un-
doubtedly bevery 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
a to the prosecution of the suit, for an indefinite
period; whilst, on an application of this kind, the
administrator appearing may a k for a reasonable
time to make up his mind whether he will go on with
the suit or not." His Lord hip added; "The cases
which I have mentioned were all of them cases in
which inj unctions 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 ca es, and to the analogous cases of defect by
bankruptcy and abatement by the marriage of a feme
sole plaintiff, I amof opinion that this motion should be
granted, unless it should appear that in consequence
of the whole intere t of the decea. ed plaintiff not be-
ing; vested in his legal personal representative, sonie
further notice is yet wanting ( f ) ."
La tly, in Lee v. Lee (g), where an abatement oc-
curred by the leath of a sole plaintiff, Sir J ames
\Vigram, V. C., refused to follow the authority of
Cluncick v. Dimes. After expre ing his opinion that
89 Of Revivor.
e or. 9
as to costs the representat es had ap Dearet there hat at
seems no reason to dspute the reguart o te orders
n an other res ect and apprehend tat these .
orders had been brought to the attenton o the ce
anceor he woud ha e decded the case o anuuu
. ncent d erent . The ncon enence woud un-
doubted be er great to the de endant t were e t
to the opton o the admnstrator o a deceased soe
pant to keep the de endant n a state o uncertant
as to the prosecuton o the sut or an nde nte
perod whst on an appcaton o ths knd the
admnstrator appearng- ma ask or a reasonabe
tme to make up hs mnd whether he w go on wth
the sut 01 not. s ordshp added The cases
whch ha e mentoned were a o them cases n
whch n unctons had been granted but t does not
appear to me that that s a crcumstance whch makes
an rea d erence n the ueston. a ng regard to
these cases and to the anaogous cases o de ect b
bankruptc and abatement b the marrage o a eme
soe pant am o opnon that ths moton shoud be
granted uness t shoud appear that n conse uence
o the whoe nterest o the deceased pant not be-
ng ested n hs ega persona representat e some
urther notce s et wantng .
ast n ee . ee g where an abatement oc-
curred b the death o a soe hnt . r ames
gram . re used to oow the authort o
howck . Dmes. ter e pressng hs opnon that
/ n the abo e case o ho- not actua ha e been a re or
wck . Dmes the dsmssa o the o costs on whch as we ha e
b was mo ed or wthout costs seen the ourt w not enera
because the representat e o the permt.
deceased pant t does not adopt 1 12 1 are G T. The case
the sut he s as we ha e seen o Dr den . a ord. 1 42 1
not abe to the costs o t and o. . . 625 s e act sm-
aso because he were abe the ar where r . . nght ruce
moton woud rtua athough . hed the same opnon.
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I I I
What Party the practice of the Court ought, as matter of abstract
~~trevive a justice, to be suchas the decision in Clwwick v. Dimes
"-.,_.I 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 the 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.i--fhere is, in
fact, no suit in which I can make an adverse order
against anyone. There are not, either in form or
substance, contending parties between whom an order
adverse to either can be made; and unless and until
the representati yes 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 inthe cause, the regular mode of doing
so must he by subpoenaor 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 bethe 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, ina non-existing suit,
with which those representatives have never in any
manner connected themselves." His Honor distin-
gui hed the case of dismissing a bill in default of re-
"'ivor from the cases of permitting injunctions to drop
in default of revivor within a limited time, and of dis-
OJ Revivor. 90
90 e or.
hat Part the practce o the ourt ought as matter o abstract
dt ustce to be such as the decson n howck . Dmes
supposed t to be s onor sad onsderng the
ueston apart rom authort t appears cear to me
that can ha e no rght to make te order pra ed.
The sut beng abated and there beng no pant re-
manng upon the record no one who has e er made
hmse or been made a part to the sut there s n
act no sut n whch can make an ad erse order
aganst an one. There are not ether n orm or
substance contendng partes between whom an order
ad e se to ether can be made and uness and unt
the representat es o the deceased pant are com-
peed to appear or appear grats or are n de aut or
not appearng the ourt can ha e no ursdcton to
make an ad erse order aganst them. ow n act
the ha e not appeared. the reat e postons o
the de endants and the representat e o the deceased
pant are such as to entte the ormer to compe the
atter to appear n the cause the reguar mode o dong
so must be b subpoena or other process o the ourt.
To such process the representat es o the deceased
pant woud be bound to ed obedence. ut
ths case woud bee e stand aone n the practce
o the ourt the de endants ha e a rght to treat
the representat es o the deceased pant as beng n
de aut or not appearng whch can be the on ground
or actng aganst them smp because the ha e not
appeared upon a notce o moton g en b the de en-
dants at ther own mere w n a non-e stng sut
wth whch those representat es ha e ne er n an
manner connected themse es. s onor dstn-
gushed the case o dsmssng a b n de aut o re-
or rom the cases o permttng n unctons to drop
n de aut o re or thn a mted tme and o ds-
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91
Original from
Ofgitized by
mi smg a bill as against the assignees of a bankrupt What Party
in default of their commencing a supplemental uit msa'Y trevive a
Ul .
within a limited time, saying that in the former ca e '-..,---J
the Court would be making an adverse order against
a per on not a party t.oany existing suit, while in the
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 gi, e'
the notice by way of inlulgence.
His Honor also remarked that" the case of Adam-
son v. Hall, in which one of several plaintiffs died,
leaving the others surviving, and the cases in which a
person has marrie 1a sole female I laintiff, did not ne-
ce sarily furnish a precedent for the case before him, in
which the party to beaffected 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 which 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 adefendant mayor may not 1'110Ve 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 agiven time it seems that at
least he may prevent such representative from com-
OJ Revivor.
e or. 91
mssng a b as aganst the assgnees o a bankrupt hat Part
n de aut o ther commencng a suppementa sut g
wthn a mted tme sa ng that n the ormer case /
the ourt woud be makng an ad erse order aganst
a person not a part to an e stng sut whe n te
atter cases t on permts the abatement or the e u
o tme to produce ts natura conse uences n de-
aut o re or or o prosecuton o the sut and g es
the notce b wa o ndugence.
s onor aso remarked that te case o dam-
son . a n whch one o se era pant s ded
ea ng the others sur ng and the cases n whch a
person has marred a soe emae pant dd not ne-
cessar urnsh a precedent or the case be ore hm n
whch the part to be a ected b the order was both n
orm and substance a stranger to the record. ut wth
respect e en to those cases consderng how tte the
sub ect had been dscussed he coud not hep doubtng
ther reguart regard beng had to the known e ect
o an abatement o a sut upon the rght to costs the
bs ha ng n those cases been dsmssed wth costs
whch was n e ect a re or or costs . nd n
that respect the orders were rreguar t coud not
under the crcumstances but shake ther authort a-
together. The same remarks app e ua t s
apprehended to the case o urne . engton
athough s onor seems to ha e nad ertent n-
cuded that case among those n wch the sut abated
b the death o a soe pant the abatement ha ng
been n act caused b the death o a de endant.
ut whether a de endant ma or ma not mo e n an
abated sut be ore decree to dsmss the b or want
o prosecuton the representat es o the deceased
pant do not re e n a g en tme t seems that at
east he ma pre ent such representat es rom com-
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n In I from
DI rtized b
What Party mencing a new suit respecting the same matter until
S
m~Ytrevive a they have paid the costs of the abandoned suit. Thus,
Ul
'-..---' in Altree v. Horden (It), 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 shortlyafter-
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
cau e, to apply for any of the costs to which they had
been subjected." Again-" It is not enough to say
(h) 1842, i J urist, 247.
Of Revivor. 92
92 e or.
hat Part mecng a new sut respectng te same matter unt
u P costs o the abandoned sut. Thus
/ n tree . Torden h a sur ng pant ded and
the sut thereb became who abated but no app-
caton was made b the de endants that the repre-
sentat es o the sur ng pant mght re e the
sut nor dd the representat es o such pant take
an proceedngs to re e the sut but short a ter-
wards the ed an entre new b aganst the same
de endants. Ths b was ounded upon the same
matters and sought the same sort o ree as ormed
the oundaton and pra er o the orgna b and t
appeared that t contaned the same statements and a-
egatons as woud ha e been contaned n the rst b
ea e had been g en to amend t. n a moton b
our o the de endants to the second b to take that
b o the e wth costs to be pad b the pant s
or that a proceedngs n the second cause mght be
sta ed unt the pant s n that cause shoud ha e
pad those our de endants ther costs n the rst
cause ord angdae M. . sad that wth re-
spect to the new b he thought he coud on treat
t as such a b as woud ha e resuted rom an amend-
ment o the orgna or rst b n that case t sure
coud not be contended that those who were seekng
to ha e the bene t o the ormer proceedngs and the
dsco er obtaned n the ormer proceedngs and who
ounded ther aegatons n the present b upon the
statements made n the answers to the ormer b
were to ha e a the bene t o that sut and et to a
asde ther proceedngs n such a manner as to g e
the de endants no opportunt n an stage o the
cause to app or an o the costs to whch the had
been sub ected. gan t s not enoug to sa
h 1 42 7 urst 247.
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Original from
I gltlze by
not after adecretal order only. Vide
Horwood v. Schmedes, 1806, 12
Ye .311.
(k) I 23, 1 S. &S. 3 .
(i) Williams v. Cooke, 1805, 10
Ve .406; Ld. Red. ed. 4, p. 79 ;
and see Ld. Stowell v. Cole, 1690,
2 Vern. 219; and Lady Stowell v.
Cole, ] 693, ibid. 296. But it seems
that, if the former uit had 1een prosecuted, the plain- What Party
tiff' might never have had to pay costs. Very probably ma.yrevive' a
uit,
it might have been so. That suit might have been '-v--'
prosecuted, and there might have been a simple bill of
revivor, and for any thing that can be known to the
contrary t.he defendants mig'ht not have had their
costs, but might have had to pay co ts. But though
that might have been so, it does not appear to me that
the plaintiffs can abandon the cause altogether, de-
priying the defendant of all opportunity of e\ er trying
the question of cost. , and, taking themselves all the
benefit that could be got from it, leave the defendant.
wholly remedile s." His Lord hip accordingly ordered
that all the proceedings in the second cause should be
tayed, until the co t had been paid in the first cause.
'Ve now come to con ider the que tion what part} After decree.
i entitled to reviYe the suit where an abatement takes
place after decree.
After a decree ha... been pronounced in the cau e,
the right of the several parties, both plaintiffs and
defendants, are a certain ed, and they are all intere ted
in the future proceeding. If, therefore, a uit abates
after decree, it may be revived by a defendant 01' the
person who succeeds to a def ndan t's interest, as well
a by a plaintiff or a per on who succeed to a plain-
tiffs intere t (i) ; ana it does not appeal' that in thi ca e
anyone party ha priority over another, but the rule
will apply , qui prior est tempore potior est JU?e.
Th u , in the ca e of Burneu v. ]J!forgan (k), "here a
bill had been filed by Lady Pryce, the owner of an
e tate, and by Burney and Morgan, incumbrancer on
93
Of Revivor.
e or. 93
that the ormer sut had been prosecuted the pan- what Part
t s mght ne er ha e had to pa costs. er probab 7 re e a
t m ht ha e been so. That sut moht ha e been
prosecuted and there mght ha e been a smpe b o
re or and or an thng that can be known to te
contrar the de endants mgt not ha e had ther
costs but mgt a e had to pa costs. ut though
that mght ha e been so t docs not appear to me that
the pant s can abandon the cause atogether de-
pr ng the de endants o a opportunt o e er tr ng
the ueston o costs and takng themse es a the
bene t that coud be got rom t ea e the de endants
who remedess. s ordshp accordng ordered
that a the proceedngs n the second cause shoud be
sta ed unt the costs had been pad n the rst cause.
e now come to consder the ueston what part ter decree.
s entted to re e the sut where an abatement takes
pace a ter decree.
ter a decree has been p onounced n the cause
the rghts o the se era partes both pant s and
de endants are ascertaned and the are a nterested
n the uture proceedngs. there ore a sut abates
a ter decree t ma be re ed b a de endant or the
person who succeeds to a de endant s nterest as we
as b a pant or a person who succeeds to a pan-
t s nterest and t does not appear tat n ths case
an one part has prort o er another but the rue
w app u pror est tempore poto - est ure.
Thus n the case o urne . organ k where a
b had been ed b ad Pr ce the owner o an
estate and b urne and Morgan ncumbrancers on
amsw ooke 1 05 10 odtt a. decreta order on . de
es. 406 d. ed. ed. 4 p. 79 orwood . chnedea 1 0 3 12
and see d. to et . oe 1690 es. 311.
2 ern. 219 and ad/ to e . k 1 23 1 . . 35 .
oe 1693 bd. 29 3. ut t seems
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F I
U N I V E R S I T Y O F C A L I FO R N I A
A defendant
What Party
may revive a
Suit.
that estate, against a purcha er for specific perform-
ance; and an abatement being caused by the death of
'------- Lady Pryce, the suit was revived by the surviving
plaintiffs, and adecree 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 J ohn 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 be 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 Morgan had an equal right so to do upon
the death of Morgan, and that his bill is regular.-
To this bill of revivor the repre entative of Burney
wa 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 sub tantial dif-
ference."
When a defendant wi hes to revive a suit, it has
Of Revivor. 94
94 e or.
hat Part that estate aganst a purchaser or spec c per orm-
u abatement beng caused b the death o
ad Pr ce the sut was re ed b the sur ng
pant s and a decree was then made and a terwards
urne ded and the sut was re ed b hs persona
representat e Morgan ha ng decned to do so and
a terwards Morgan ded and then hs persona repre-
sentat e re ed the sut and apped to the ourt
or an order to restran urne s representat e rom
proceedng urther r ohn each . a ter hod-
ng that the re or b urne s representat e was
not rreguar sad t s a mstake to suppose that
n conse uence o ths b o re or Morgan ost
an rght to prosecute the decree whch he be ore
possessed. er part to a sut s an actor a ter a
decree and there ore the representat e o urne
and Morgan and the other de endants were a entted
to prosecute the decree upon the order or re or.
nd the stuaton o Morgan as sur ng pant
n the orgna sut entted hm to a pre erence o er
the representat e o urne as a pant n the b
o re or where both were actng wth e ua d-
gence t was hs own aut he dd not assert t.
the representat e o urne had a rght to e
a b o re or t necessar oows that the repre-
sentat e o organ had an e ua rght so to do upon
the death o Morgan and that hs b s reguar.
To ths b o re or the representat e o urne
was a co-de endant and stands now n the same stua-
ton n the cause as Morgan hmse stood a ter her
. e. urne s representat e s b o re or. ut
n truth the are a actors and ths ar ng reaton
o pant and de endant makes no substanta d -
erence.
de endant hen a de endant wshes to re e a sut t has
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Original from
Digitized by
tempt bythe defendant to revive
was after adecretal order only, and
not after decree.
(q) But quare whether the in-
junction would not naturally fall to
the ground, of it elf, upon the
abatement? Vide 1Hare, 622, and
supra, Chapter V.
(l) Ld. Red. ed, 4, p. 79.
(m) Kent v. Kent, 1702, Pro Ch.
197. Anon. 174 ,3 Atk. 691.
(n) Finch v. Winchel ea, 1727,
1E. C. Ab. 2.
(0) Deoaynes v. Morris, 135, 1
1y1. &Cr. 213, 225.
(]I) Horiooodv, Schmedes, 1 06,
12 es.311. In this case the at-
been supposed that he must give notice of his intention What P~rty
d
. bei h fi may revive a
to the party con uctmg the cause, as emg t erst en- Suit.
titled to revive. But it seems to follow fromthe above ~
. . .. need not give
case that such notice 1 unnecessary. "A bill of revi- notice of his
vor by adefendant" says Lord Redesdale (l) "merely int~ntion to
, 'reHve.
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 sev eral parties in the
original pleadings, except so far as they remain unde-
cided."
It wa formerly held that a defendant could only A defen~ant
. . f 1 r. d tl . may revive
revn e a uit a tel' a ( ecree J or an account, an rat It whenever he
was only in that case that he became an actor, in con- has an interest.
equence of the po sibility 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
i not confined to uch cases (n), nor even to cases in
which he might have himself filed the original bill (0),
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 i not interested in the further pro-
ecution of the uit. 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 cle-
murrer (P), and the defendant must proceed to get rid
of the injunction in the ordinary way (q).
95 Of Revivor.
e or. 95
been supposed that he must g e notce o hs ntenton hat Part
to the part conductng te cause as beng the rst en- urt/
tted to re e. ut t seems to oow rom the abo e
1 . . 1 M p need not g e
case that such notce s unnecessar . b or re - notce o hs
or b a de endant sa s ord edesdae mere ntenton to
substantates the sut and brngs be ore the ourt the
partes necessar to see to the e ecuton o the decree
and to be the ob ects o ts operatons and does not
tgate the cams made b the se era partes n the
orgna peadngs e cept so ar as the reman unde-
cded.
t was ormer ed that a de endant coud on de eudant
re e a sut a ter a decree or an account and that t heneTer he
was on n that case that he became an actor n con- tas an nterest
se uence o the possbt o such account ea ng a
baance n hs a our m . ut ths doctrne has been
o errued and t s now setted that hs rght to re e
s not con ned to such cases n nor e en to cases n
whch he mght ha e hmse ed the orgna b o
but that he ma do so where er he has an nterest.
de endant w not howe er be aowed to re e
a sut where he has no nterest under the decree
that s where he s not nterested n the urther pro-
secuton o the sut. nd where the ob ect o a b
o re or b a de endant s not to contnue the sut
but mere to put an end to an n uncton and to be
aowed to proceed at aw t w be abe to a de-
murrer p and the de endant must proceed to get rd
o the n uncton n the ordnar wa .
d. ed. ed. 4 p. 79. tempt b the de endant to re e
m ent . ent 1702 Pr. h. was a ter a decreta order on and
197. noM. 174 3 tk. G91. not a ter decree.
w nch . nckesea 1727 ut cere whether the n-
1 . . b. 2. uncton woud not natura a to
o De a nes . Morrs 1 35 1 the ground o tse upon the
M . r. 213 225. abatement de 1 are 22 and
orwood . chmedes 06 ra. hapter
12 es. 311. n ths case the at-
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p
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n In I rn
DI itized b
Of Revivor.
Where the in-
tere t devolves
by the act of
the deceased.
Where the in-
terest devolves
by operation
of law.
96
Mode 'Ve will now consider the means by which revivor
~ is effected.
For this purpose we must divide the subject into
two heads, for the mode of revivor will be different
according as the interest. represented by the deceased
part: has de, ol ved on a person claiming under him by
operation of law, as an heir or execu tor, or on a person
claiming under him by means of his own act, as a
devisee.
In the first case there is no additional matter to be
litigated in the suit, becau e, as the intere t devolves
by the operation of law, the title of the person on
whom it devolves cannot be questioneJ , if his identity
be established; and if this identity be denied it must
be di puted in some other Court than the Court
of Chancery. But in the second ca e there is addi-
tional matter to be litigated in the cau e, namely,
the title by which the new party claims to succeed
to the interest of the former party; and thi mus t be
either admitted or proved before the main uit can he
eli 1 0eel of.
To illustrat thi by an example.-Suppo e a uit
to concern land of which the party dying wa ei ed in
fee simple. The intere t which he represented ha
survived him; and if he died w ithout deviing it,
which will be assumed prima facie, has of course de-
cended upon his heir. Thi is a rule of law which
cannot be disput.ed, and therefore all that is wanting to
revive the suit is to sub titute the heir for the deceased
party. If the per onbrought forward for that purpo e
is admitted to be t.he heir, there is nothing to be tried;
~if on the contrary it is denied that he i the true
heir, a qu tion i indeed rai ed, but on which it be-
long exclu ively to a Court of Law to determine. In
n ither case ha the death of the tenant in fee created
96 e or.
Mode e w now consder the means b whch re or
. . s e ected.
or ths purpose we must d de the sub ect nto
two heads or the mode o re or w be d erent
accordng as the nterest represented b the deceased
part has de o ed on a person camng under hm b
operaton o aw as an her or e ecutor or on a erson
camng under hm b means o ns own act. as a
de see.
here the n- n the rst case there s no addtona matter to be
terest de o es to -gc n the sut because as the nterest de o es
b operaton
o aw. b the operaton o aw the tte o the person on
whom t de o es cannot be uestoned hs dentt
be estabshed and ths dentt be dened t must
be dsputed n some other ourt than the ourt
here the n- o hancer . ut n the second case there s add-
terest de o es ona matter to be tated n the cause name
b the act or .
the deceased the tte b whch the new part cams to succeed
to the nterest o the ormer part and ths must be
ether admtted or pro ed be ore the man sut can be
dsposed o .
To ustrate ths b an e ampe. uppose a sut
to concern and o whch the art d ng was sesed n
ee smpe. The nterest whch he represented has
sur ed hm and he ded wthout de sng t
whch w be assumed prma ace has o course de-
scended upon hs her. Ths s a rue o aw whch
cannot be dsputed and there ore a that s wantng to
re e the sut s to substtute the her or the deceased
part . the person brought orward or that purpose
s admtted to be the her there s nothng to be tred
on the contrar t s dened that he s the true
her a ueston s ndeed rased but one whch t be-
ongs e cus e to a ourt o aw to determne. n
nether case has the death o the tenant n ee created
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p
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Mode
of Revivor.
'--...----J
97
Original from
Digitized by
H
(r) I ti true that issue may be the case of a devisee, the devi 'ee
joined in the suit in Chancery on must prove his title, even though
the question heir or no heir, as will the defendant does not deny it, but
be een hereafter; but to produce merely states his ignorance of how
this, a pecial denial of heirship the fact i .
ron t be made by plea; wherea , in
any additional matter to be litigated in the Court 0f
Chancery (r).
But uppo e the decea 'eel party to have interfered
with the natural COllI' e of law by devi ing the land,
the title of the devisee mu t be establi. hed before he
can ucceed to the place of his testator. It is not
nough for him, a in the case of the heir, to prove hi
identity,-to how that he is the same person as is
named in the will. The actual existence and legal
validity of that will, and the true con truction of the
passage in it on which he re t his claim, are nece ary
links inhis title, and must either beadmitted or proved
to the ati faction of the Court.
Although therefore in both ca es the suit i capable
of' being revived, yet the proces. by which that j,
effected, i l ifferent in each case.
OJ Revivor.
e or. 97
an addtona matter to e tgated n the ourt o Mode
/- / o e or.
hancer r .
ut suppose the deceased part to ha e nter ered
wth the natura course o aw b de sng the and
the tte o the de see must be estabshed be ore he
can succeed to the ace o hs testator. t s not
enough or hm as n te case o the her to pro e hs
dentt to show that he s the same person as s
named n the w. The actua e stence and ega
adt o that w and te true constructon o the
passage n t on whch he rests hs cam are necessar
nks n hs tte and must ether be admtted or pro ed
to the sats acton o the ourt.
tough there ore n both cases the sut s capabe
o beng re ed et the process b whch that s
ettected s d erent n each case.
/ t s true that ssue ma be the case o a de see the de see
oned n the sut n hancer on must pro e hs tte e en though
the ueston her or no her as w the de endant does not den t but
be seen herea ter but to produce mere states hs gnorance o ho r
ths a speca dena o hershp the act s.
must be made b pea whereas n
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rlgln I Fe
U N IV E R S IT Y O F C A L IFO R N IA
L lgltlze b
Nature of WE have seen that where the new party claims by
the Process. . f ] h . f h r I "
"-v--' operation 0 aw, t ere I S no res matter lor itiga-
tion in the suit. The death of the former party, and
the succession of the new one to his rights, will be
taken for granted without admission or proof, unless
it be specially put in issue by the opposite party in
the manner hereafter mentioned. Still less is there
any room for litigation of the original matter before
the Court, the rights as to which are not altered by
the mere devolution of them fromancestor to heir, or
from testator to executor. Accordingly, all that is
requisite is -toinform the Court of the death and suc-
cession which have happened, which is done by a bill
ancillary to the original bill, and which prays that the
suit may be revived ;-from which circumstance it is
called a bill of revivor. Putting no new matter in
issue, it requires no answer, nor is it set down to be
heard; but after a certain interval an order for the
revivor of the suit issues as of course.
Onebill of Where there is an original bill, and a cross bill
revivor in h I I f
several suits. t ereto, there must generally be a bi 0 revivor in
each cause. But if the bills regard an account, and
there is a decree for an account, the two causes be-
come thereby so consolidated that one bill of revivor,
praying for a revivor of the whole, will revive both
cau s(a). And where one decree had been taken in
(a) Coop. Eq. PI . 88; Wyatt, ProReg. 88; For. Rom. 174.
OF REVI VOR BY SI MPLE BI LL AND ORDER.
CHAPTER VI I .
98
9
PT .
MP D D .
ature o e ha e see that where the new part cams b
operaton o aw there s no resh matter or tga-
ton n the sut. The death o the ormer part and
the successon o the new one to hs rghts w be
taken or granted wthout admsson or proo uness
t be speca put n ssue b the opposte part n
the manner herea ter mentoned. t ess s there
an room or tgaton o the orgna matter be ore
the ourt the rghts as to whch are not atered b
the mere de outon o them rom ancestor to her or
rom testator to e ecutor. ccordng a that s
re uste s to n orm the ourt o the death and suc-
cesson whch ha e happened whch s done b a b
ancar to the orgna b and whch pra s that the
sut ma be re ed rom whch crcumstance t s
caed a h o re or. Puttng no new matter n
ssue t re ures no answer nor s t set down to be
heard but a ter a certan nter a an order or the
re or o the sut ssues as o course.
ne b o here there s an orgna b and a cross b
se era suts thereto there must genera be a b o re or n
each cause. ut the bs regard an account and
there s a decree or an account the two causes be-
come thereb so consodated that one b o re or
pra ng or a re or o the whoe w re e both
causes a . nd where one decree had been taken n
a oop. c . P . att Pr. eg. or. om. 174
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Original from
U N I V E R S lT V 0 F C A U F OR N I A
Digiti zed by
tile, the whole bill will be taken off
the file, although it may have been
not irregularly filed as a mere bill
of revivor. Hodson v. Ball, 1 42,
1 Phill. 177.
(b) Moore v. Elkington, 1 40, 2
Beav.574.
(c) Where a bill of revivor and
supplement is irregularly tiled 0
far as it is a bill of supplement,
and is ordered to be taken off the
H2
three nit, and a party died who wa a plaintiff in
one uit, and a defendant in the other two, one bill of
- - - . . - - -
revivor file I again t hi representative wa held uffi-
cient (b).
It may happen that the arne event which cau es Bill of revivor
abatement is accompanied by ome circumstance im- :e::.upple-
portant to the conduct of the uit, and which ought to
be brought before the Court. Thi, however, i not
matter for a simple bill of revivor, whose province i
merely to state the abatement and the tran mis iion of
intere t to th person by or a .ain t whom the suit is
to be revived. I t would properly be introduced by a
upplemental bill; but a thi. would nece itate the
contemporaneou filing of two bill, the Court allow
the matter in que .tion to be as ociated with the matter
of the abatement, and to be brought before the Court
in a in 'le bill, which, fromits louble nature, is called
a bill of reiriuor and supplement (c).
I tappears that the bill of revivor and supplement
mu t not bring forward supplemental matter in corro-
boration of the merits of the case, but only uch as
goe. to explain the macltine'l'Yof the suit. Thus where
abill wa filed by the a signee of an in olvent debtor,
to restrain a party in po ses ion of certain estate"
claimed by the a ignee in right of the in olvent, from
etting up certain outstanding term to an action of
ejectment; and a demurrer wa put in to the bill, but
wa not et down to be heard; and eight years after
ward ~tl e defendant died, and then the a ignee and
the insol vent died, and the new a signee filed a bill of
9 Of Revivor by imple Bill and Order.
e or b mpe and rder. 99
three suts and a part ded who was a pant n ature o
one sut and a de endant n the other two one b o Process.
re or ed aganst hs representat e was hed su -
cent .
t ma happen that the same e ent whch causes o re or
abatement s accompaned b some crcumstance m- nt
portant to the conduct o the sut and whch ought to
be brought be ore the ourt. Ths howe er s not
matter or a smpe b o re or wose pro nce s
mere to state the abatement and the transmsson o
nterest to the person b or aganst whom the sut s
to be re ed. t woud proper be ntroduced b a
suppementa b but as ths woud necesstate the
contemporaneous ng o two bs the ourt aows
the matter n ueston to be assocated wth the matter
o the abatement and to be brought be ore the ourt
n a snge b whc rom ts doube nature s caed
a h o re or and suppement c .
t appears that the b o re or and suppement
must not brng orward suppementa matter n corro-
boraton o the merts o the case but on such as
goes to e pan the machner o the sut. Thus where
a b was ed b the assgnee o an nso ent debtor
to restran a part n possesson o certan estates
camed b the assgnee n rght o the nso ent rom
settng up certan outstandng terms to an acton o
e ectment and a demurrer was put n to the b but
Mas not set down to be heard and eght ears a ter
wards the de endant ded and then the assgnee and
the nso ent ded and the new assgnee ed a b o
b Moore . kngton 1 -10 2 e the whoe b w be taken o t
ear. 574. the e athough t ma ha e been
c here a b o re or and not rreguar ed as a mere b
suppement s rreguar ed so o re or. odson . a 1 42
ar as t s a b o suppement 1 Ph. 177.
and s ordered to be taken o the
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p
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n In I
I rtrze b
Cd) Bampton v. Birchall, 1842, 6 J uri t, 3.
revivor and suppleruen t, praying to have the suit
revi ved and the demurrer heard, and for more exten-
i"e relief than was prayed by the original bill; it was
held that the plaintiff was entitled to TIlea bill of
revivor and supplement, alleging supplemental matter
neces ary to shew by and against whom the order to
revive ough t to be obtained, for the purpose of having
the demurrer dispo ed of, but was not entitled to
claim the same or additional relief by adding supple-
mental matter in corroboration of the original claim,
and 110trequired for the purpose of howing by and
against whom the order to revive should. be ob-
tained Cd).
rt has already been mentioned that until a person
named as defendant in a bill, has appeared to that bill,
he is not considered as a party to the suit. Conse-
qnently, if that person dies" ithout having ever ap-
peared, the suit having never existed as against him
can hardly be said to have abated by his death. A
bill of revivor would therefore be out of place, for the
imperfection was inherent in the suit from the begin-
nino'. 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 onto
Where an abatement takes place after a decree
which has been signed and enrolled, there is al 0
another way of reviving the suit be ides a bill of re-
vivor and order; namely, a subpcena in the nature of
a scire facias directed again t the repre entative of th
decea ed party.
On the return of thi subp ua, the party against
whom it is directed may hew cause again t the revi-
val of the decree b making uch defenc thereto a
Of Revivor by
Revivor by
scirefacias.
Where a de-
fendant dies
before appear-
ance to the
original bill.
Nature of
the Process.
"-..---J
100
100
e or b
ature o
the Process
here a de-
endant des
be ore appear
ance to the
orgna b.
e or b
tcre acas.
re or and suppeuent pra ng to ha e the sut
re ed and te demurrer heard and or more e ten-
s e ree tan was pra ed b te orgna b t was
hed that the pant was entted to e a b o
re or and suppement aegng suppementa matter
necessar to shew b and aganst wom the order to
re e ought to be obtaned or the purpose o ha ng
the demurrer dsposed o but was not entted to
cam the same or addtona ree b addng suppe-
menta matter n corroboraton o the orgna cam
and not re ured or the purpose o showng b and
aganst whom the order to re e shoud be ob-
taned d .
Tt has aread been mentoned that unt a person
named as de endant n a b has appeared to that b
he s not consdered as a part to the sut. onse-
uent that person des wthout ha ng e er ap-
peared the sut a ng ne er e sted as aganst hm
can hard be sad to ha e abated b hs death.
b o re or woud there ore be out o pace or the
mper ecton was nherent n the sut rom the begn-
nng. The case there ore as wthn the descrpton
o mper ectons mentoned n the second chapter o
ths treatse and s remeded n the manner there
ponted out.
here an abatement takes pace a ter a decree
whch has been sgned and enroed there s aso
another wa o re ng the sut besdes a b o re-
or and order name a subpoena n the nature o
a scre acas drected aganst the representat e o the
deceased part .
n the return o ths subpoena the part aganst
whom t s drected ma shew cause aganst the re -
a o the decree b nukng suc de ence thereto as
ampton . rcha 1 42 G urst 3.
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101
Original from
Digitized by
(h) Ibid. p. 70.
(i) Croster v , Riter, 1672 2
Ch. Rep. 35.
(k) J bid.
(e) Vide Ward v. Lake, 1664,
3 Ch. Rep. 9 j Ld. Red. ed. 4, p.
69.
<f) Ward v, Lake, ubi supra.
(g) Ld. Red. ed, 4, p. 69.
he may be advi ed(e). And it appears that there i Tature of
no other way of making a defence to uch a process. ~
Thu where a plaintiff died after decree, and a de-
murrer wa put in to a subpcena in the nature of a
scire facias, for that the party who brought it did not
thereby allege him elf to be tlie heir or executor of
the party mentioned in the decree, such demurrer wa
overruled, "becau e the subpoena is no record, nor
any where filed;" but it was aid that cause must be
hewn on the return of the writ ulon the order, which
order mentions the part.y who brought the writ to be
the heir or executor (f).
If ul on cau e beinz hewn again t the revivor, the
opinion of the Court i in favour of the party shewing
cause, the uit will be dismissed as against him with
co t (g). Btl t if he does not oppose the revivor of'
the decree, or, having opposed it, the opinion of the
Court i against him, interrogatories may be exhibited
for hi examination respecting any matter necessary to
the proceedings. I f he has opposed the reviving of
the decree on the ground of facts which the plaintiff
thinks proper to dispute, the plaintiff must exhibit
interrogatories against him relative to such matters;
and he may answer or plead to such interrogatories as
he might have done to a bill; and upon issue being
joined and witnesses examined, the matter may be
fully heard and determined by the Court (h).
It i optional to a party to revive a decree igned
and enrolled by this process, or by a common bill of
revivor (i). The scirefacias revive only the decree, and
not any of the subse 11ent proceedings (k); for the e
imple Bill and Order.
mpe and rder. 1 1
he ma be ad sed e . nd t appears that there s ature o
no oter wa o makng- a de ence to such a process -
Tms where a panttt ded a ter decree and a de-
murrer was put n to a subpoena n the nature o a
scre acas or that the part who brougt t dd not
thereb aege hmse to be the her or e ecutor o
the part mentoned n the decree such demurrer was
o errued because the subpcena s no record nor
an where ed but t was sad that cause must be
shewn on the return o the wrt upon the order whch
order mentons the part who brought the wrt to be
the her or e ecutor / .
upon cause beng shewn aganst the re or the
opnon o the ourt s n a our o the part shewng
cause the sut w be dsmssed as aganst hm wth
costs g . ut he does not oppose the re or o
the decree or ha ng opposed t the opnon o the
ourt s aganst hm nterrogatores ma be e hbted
or hs e amnaton respectng an matter necessar to
the proceedngs. he has opposed te re ng o
the decree on the ground o acts whch the pant
thnks proper to dspute the pant must e hbt
nterrogatores aganst hm reat e to such matters
and he ma answer or pead to such nterrogatores as
he mght ha e done to a b and upon ssue beng
oned and wtnesses e amned the matter ma be
u heard and determned b the ourt h .
t s optona to a part to re e a decree sgned
and enroed b ths process or b a common b o
re or . The scre acas re es on the decree and
not an o the subse uent proceedngs k or these
e de ard . ake 1664 h bd. p. 70.
3 h. ep. 9 d. ed. ed. 4 p. 0 ronter . kter 1072 2
69. h. ep. 35.
/ ard . ake ub supra. - bd.
/ d. ed. ed. 4 p. 69.
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n mal n
DI itized by
(l) Ld. Red. ed. 4, p. 70.
Original state-
ments.
vivor.
Formof the
Bill of Re-
Nature of can only berevived by bill of revivor. For this reason,
~ and from the enrolment of decrees being now much
disused, the course of proceeding' by scirefacias is 110t
much adopted, and it has become the practice to revive
in all cases indiscriminately by bill (l).
Abatement by In the caseof abatement by the marriage of afemale
marriage. plaintiff, the parties who revive the suit of course sue
in the same way as parties to an original bill. The
bill of revivor therefore is filed by the husband and
wifejointly, or if the property in litigation be the se-
parate property of the wife, the bill of revivor must be
filed on the part of the wife by her next friend. In
this latter case, however, the bill of revivor must be
accompanied by a supplemental statement to shew the
settlement under which the wife became entitled to a
separate estate, and it thereby becomes abill of revivor
and supplement.
We will nowconsider the general form of the simple
bill of revivor.
Lord Redesdale says that the bill of revivor mu t
state the original bill, by which he probably means
that it must state tilefiling of the original bill; but it
bas been sometimes construed to mean that the bill of
revivor must restate the statements inthe original bill.
To put a stop to this practice, it is declared by the
Forty-ninth Order of 1841, that it shall not be ne-
cessary in any bill of revivor to set forth any of the
statements in the pleadings in the original suit, unless
the special circumstances of the case may require it.
The exception contained in the concluding word
makes it necessary for us toinquire howfar, and under
what circumstances,. the matter of the ori 'inal bill
must be noticed in the bill of revivor.
Nowthe object of a bill of revivor being merely to
Of Revivor by 102
102
e or h
ature o
the Process.
batement b
marrage.
orm o the
o e-
or.
rgna state
ments.
can on be re ed b b o re or. or ths reason
and rom the enroment o decrees beng now much
dsused the course o proceedng b scre acas s not
much adopted and t has become the practce to re e
n a cases ndscrmnate b b .
n the case o abatement b the marrage o a emae
pant the partes who re e the sut o course sue
n the same wa as partes to an orgna b. The
b o re or there ore s ed b the husband and
w e ont or the propert n tgaton be the se-
parate propert o the w e the b o re or must be
ed on the part o the w e b her ne t rend. n
ths atter case howe er the b o re or must be
accompaned b a suppementa statement to shew the
settement under whch the w e became entted to a
separate estate and t thereb becomes a b o re or
and suppement.
e w now consder the genera orm o the smpe
b o re or.
ord edesdae sa s that the b o re or must
state the orgna b b whch he probab means
that t must state the ng o the orgna b but t
has been sometmes construed to mean that the b o
re or must restate the statements n the orgna b.
To put a stop to ths practce t s decared b the
ort -nnth rder o 1 41 that t sha not be ne-
cessar n an b o re or to set orth an o the
statements n the peadngs n the orgna sut uness
the speca crcumstances o the case ma re ure t.
The e cepton contaned n the concudng words
makes t necessar or us to n u-e how ar and under
what crcumstances the matter o the orgna b
must be notced n the b o re or.
ow the ob ect o a b o re or beng mere to
/ d. ed. ed. 4 p. 70.
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Original from
Digitize by
continue a suit from the point where it ha abated, Formof the
there can be no advantage in telling the original 01' ~~~r~f Re-
the new party any thing which he, or his predece or, "-r---'
hasalready been interrogated to and answered. Prima
facie, therefore, as has been remarked in considering
the formof asupplemental bill, such statements are
surplusage and impertinent, as well as productive of
u eless expense.
Lord Chief Baron Gilbert says(m) that" the bill
of revivor need set forth no more of the original bill
than this, viz. That you')' orator in 01' about such.
a time exhibited his original Bill of Complaint in
this Honorable Court to be relieved touching certain
matters and things therein contained, as by the said
bill, duly filed and remaining of record in this Honor-
able Court, appears; and carry it DO further. That
the defendant, such a day, put in his answer, as by such
answer remaining of record, appears. That witnesses
being examined, publication passed, and the cause being
at issue came on to be heard such a day; when it was
ordered and decreed so and so. And here are taken in
the words of the ordering part of the decree, "'Very
shortly, and no more than what is material to the revi-
YOI'. Or if thi short method is not pursued by the
drawer, yet hemust take care that in the recital of the
former proceedings he does them in the shortest man-
ner possible, the shorter the better, since they can be
of DO use to his client; for the records of the Court are
the same whether truly or falsely recited, and from
themalone the fact must be determined; and all the
defendant hath to do by answer tothe bill of revivor i
only to et forth that hebelieves there wassuch asuit,
decree, and proceedings, and refers to the record, ."
I t i apprehended that the only general rule that
can belaid down 011 this point is, that no more of the
(m) For. Rom. 210.
103 Simple Bill and Order.
mpe and rder. 103
contnue a sut rom the pont where t has abated orm o the
there can be no ad antage n teng the orgna or g
the new part an thng wch he or hs predecessor /
has aread been nterrogated to and answered. Prma -
ace there ore as has been remarked n consderng
the orm o a suppementa b such statements are
surpusage and mpertnent as .c as product e o
useess e pense.
ord he aron Gbert sa s m that the b
o re or need set orth no more o the orgna b
than ths . That our orator n or about such
a tme e hbted hs orgna o ompant n
ths onorabe ourt to be ree ed touchng certan
matters and thngs theren contaned as b the sad
b du ed and remanng o record n ths onor-
abe ourt appears and carr t no urther. That
the de endant such a da put n hs answer as b such
answer remanng o record appears. That wtnesses
beng e amned pubcaton passed and the cause beng
at ssue came on to be heard such a da when t was
ordered and decreed so and so. nd here are taken n
the words o the orderng part o the decree er
short and no more than what s matera to the re -
or. r ths short method s not pursued b the
drawer et he must take care that n the recta o the
ormer proceedngs he does them n the shortest man-
ner possbe the shorter the better snce the can be
o no use to hs cent or the records o the ourt are
the same whether tru or ase rected and rom
them aone the act must be determned and a the
de endant hath to do b answer to the b o re or
on to set orth that he bee es there was such a sut
decree and proceedngs and re ers to the records.
t s apprehended that the on genera rue that
can be ad down on ths pont s that no more o the
m or. om. 210.
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p
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n In I
I rtize b
Cn) Viele the analogous case of Wooels v. Woods, 1839,10 Sim. 197.
case.
Amendments
of the original
Prayer.
Subsequent
proceedings.
Form of the original case should be stated than is necessary to shew
~ill of Re- that the interest which was represented by the original
vivor,
'----..----' party has become vested in his representative. With-
out a statement to this extent it would not be apparent
on the face of the bill of revivor whether the interest
of the deceased party survived him at all, or whether,
if it survived him, it devolved on his real or personal
representative. Whether for this purpose it will be
sufficient to confine the statements to the prayer of the
original bill, or whether a slight sketch must be given
of the statements in the original bill, will depend upon
the circumstances of each particular case.
After thus mentioning the original bill, the bill of
revivor must go on to state the proceedings which have
been subsequently had in the suit, in the manner al-
ready noticed by Lord Chief Baron Gil bert. Itshould
then state that, before any further proceedings took
place in the suit, the event happened which caused
the abatement, and shew how the new party derives
his title from the deceased. It should then charge
that by the event in question the suit became abated,
but that the party filing the bill of revivor is entitled
to revive it, and it should pray that the defendant may
shew cause, if he can, why the suit should not be re-
vived, and stand and be in the same pligh t and con-
dition as it was in at the time of the abatemen t, and in
default thereof that the suit may berevived accordingly.
If the plaintiff wishes to amend his case after the
defendant has died, it appears that he must insert
such amended: statements in his bill of revivor, be-
cause the new defendant having no office copy of the
original bill, t.here is no other way of amending as
against him (n). In this case it is apprehended that
all the defendants must be parties to the bill contain-
Of Revivor by 104
104
e or b
orm o the
o e-
or.
ubse uent
proceedngs.
Pra er.
mendments
o the orgna
case.
orgma case shoud be stated than s necessar to shew
that the nterest whch was represented b the orgna
part has become ested n hs representat e. th-
out a statement to ths e tent t woud not be apparent
on the ace o the b o re or whether the nterest
o the deceased part sur ed hm at a or whether
t sur ed hm t de o ed on hs rea or persona
representat e. hether or ths purpose t w be
su cent to con ne the statements to the pra er o the
orgna b or whether a sght sketch must be g en
o the statements n the orgna b w depend upon
the crcumstances o each partcuar case.
ter thus mentonng the orgna b the b o
re or must go on to state the proceedngs whch ha e
been subse uent had n the sut n the manner a-
read notced b ord he aron Gbert. t shoud
then state that be ore an urther proceedngs took
pace n the sut the e ent happened whch caused
the abatement and shew how the new part der es
hs tte rom the deceased. t shoud then charge
that b the e ent n ueston the sut became abated
but that the part ng the b o re or s entted
to re e t and t shoud pra that the de endant ma
shew cause he can wh the sut shoud not be re-
ed and stand and be n the same pght and con-
dton as t was n at the tme o the abatement and n
de aut thereo that the sut ma be re ed accordng .
the pant wshes to amend hs case a te the
de endant has ded t appears that he must nsert
such amended statements n hs b o re or be-
cause the new de endant ha ng no o ce cop o the
orgna b there s no other wa o amendng as
aganst hm ths case t s apprehended that
a the de endants must be partes to the b contan-
n de the anaogous case o oods . oods 1 39 10 m. 197.
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Original from
Digitize by
(P) For a precedent of a bill of
this sort, eetheAppendix, No. IX.
(0) Humphreysv.Tacledon, 1721,
Dick. 38; 1P. W. 751.
insr the amendment ; and the bill will in fact be a bill Form of the
f revi d I Bill of Re-
O revivor an ~upp ement. vivo!'.
'Vhere the suit is revived by the executor of a de- '-v---I
I 1
'ff~' h I 1 I An executor
C a. e( p ainti ,It appears t at ie must c large that reviving must
he ha proved uch dec ased plaintiff's wil l (0). Hi charge that he
. . . ha proved the
mere appointment to the office will not be a sufficient will.
qual ification.
Where a suit is revived again t the personal repl'e- Bill. of revivor
. f d d . . f agaln t execu-
sentative 0 a ecea e party, It IS 0 ten neces ary to tor may inquire
pur.~ue a claim against the assets of such party, by as to as ets.
either obtaining from the representative an admission
of asset, or taking an account of the estate of the
decea ed. In thi case the bill of revivor must pray
not only that the suit may be revived, but also that in
ca e the defendant doe not admit as ets, the usual ac-
counts may be taken; and the defendant must of course
be interrogated as to whether he admits assets 01' not.
The bill in this case therefore is not a simple bill of
revivor, but is also a supplemental bill so far as re-
gards the accoun t of assets, and requires an answer,
and a decree also if the answer is in the negative. If,
however, the defendant admits assets by his answer, the
bill will be treated a. a simple bill of revivor, and the
uit will proceed against the defendan t on the mere
order for revivor; and indeed in any case such a bill is
generally called abill of revivor only, and not a bill of
revivor and supplement (p).
So where, in a suit by one of the next of kin of ates-
tator against the executor, the decree directed an ac-
count of monies come to the hands of the executor, and
an inquiry whether any monies had come to the hands
of the plaintiff; and the plain tiff died, and hi ad-
mini trator revived the suit and offered to be bound
105 .lmple Bill and Order,
mpe and rder. 105
no- the amendments und the b w n act be a b orm o the
P . 1 1 . o e-
01 re or and s pement. or.
here the sut s re ed b the e ecutor o a de-
ceased pant t appears that he must charge that re ng must
he has pro ed such deceased ant s w o . s g
. 1 -11 1 /T has ro d the
mere appomtment to te ornce w not be a suttcent w.
uacaton.
here a sut s re ed aganst the persona re re- o re or
. -.- 4. aganst e ecu-
seutat e o a deceased part t s oten necessar to tor ma n ure
pursue a cam aganst the assets o such part b s to assets
ether obtanng rom the representat e an admsson
o assets or takng an account o the estate o the
deceased. n ths case the b o re or must pra
not on that the sut ma be re ed but aso that n
case the de endant does not admt assets the usua ac-
counts ma be taken and the de endant must o course
be nterrogated as to whether he admts assets or not.
The b n ths case there ore s not a smpe b o
re or but s aso a suppementa b so ar as re-
gards the account o assets and re ures an answer
and a decree aso the answer s n the negat e.
howe er the de endant admts assets b hs answer the
b w be treated as a smpe b o re or and the
sut w proceed aganst the de endant on the mere
order or re or and ndeed n an case such a b s
genera caed a b o re or on and not a b o
re or and suppement p .
o where n a sut b one o the ne t o kn o a tes-
tator aganst the e ecutor the decree drected an ac-
count o mones come to the hands o the e ecutor and
an n ur whether an mones had come to the hands
o the pant and the pant ded and hs ad-
mnstrator re ed the sut and o ered to be bound
o umphre s . ndedon 1721 / or a precedent o a b o
Dck. 3 1 P. . 751. ths sort seethe ppend o. .
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p
d
On In If n
DIgItIzed by
a precedent of a bill of this sort,
see the Appendix, No. IX.
(s) 1748, 2 Yes. sen. 232.
(q) Branclt v. Primrose, 1839,
3J uri t, 885.
(r) Ld. Red. ed. 4, p. 77. For
Signature.
Bill of revivor
~:~~:eoc;~~n. officeof a bill of revivor, that if filed after decree it
trovert the must not attempt to controvert the decree. In Robin-
decree.
son v. Robinson(s) it was said that" there were cases
of bills in the nature of bills of revivor, filed for
the purpose of carrying on the former decree, where
the Court had sometimes, but seldom, said that the
defendant might dispute it, but never the plaintiff.
The decree has determined the question, whether it
was then debated or not; and the Court is thereby
bound."
A hill of revivor must be signed by Counsel, and is
filed in the sameway as any other bill.
Parties. Let us now consider what persons will be necessary
"-v---I parties to the bill of revivor.
Original co- As all the parties who institute a suit are of course
plaintiffs. interested in the subsequent proceedings in such suit,
no one of them is permitted to revive uch suit after
Form of the by a decree to account for such plaintiff's personal
Bill of Re-
vivor. estate, and called upon the defendant to answer his
"-v---I bill, he was held entitled to an answer (q), the bill in
this casebeing in fact not a simple bill of revivor, but
a bill of revivor and supplement.
Where bill of If adefendant dies after he has appeared to the bill,
:~vsi;~~~~llsfor but before he has answered it, or before he has an-
original bill. swered any amendments of the bill, or exceptions to
his former answer, the bill of revivor, although re-
quiring no answer to itself, must pray not only for
revivor, but also that the new party may answer those
parts of the original bill which the former defendant
was required to answer; or that he may answer the
amendments or exceptions as the case may be(r).
I t follows fromwhat has been said of the nature and
Of Revivor by 106
106
e or b
orm o the
o e-
or.

here b o
re or cas or
answer to
orgna b.
o re or
a ter decree
must not con-
tro ert the
decree.
gnature.
Partes.
rgna co-
pant s.
b a decree to account or such pant s persona
estate and caed upon the de endant to answer hs
b he was hed entted to an answer // the b n
ths case beng n act not a smpe b o re or but
a b o re or and suppement.
a de endant des a ter he has appeared to the b
but be ore he has answered t or be ore he has an-
swered an amendments o the b or e ceptons to
hs ormer answer the b o re or athough re-
urng no answer to tse must pra not on or
re or but aso that the new part ma answer those
parts o the orgna b whch the ormer de endant
was re ured to answer or that he ma answer the
amendments or e ceptons as the case ma be r .
t oows rom what has been sad o the nature and
o ce o a b o re or that ed a ter decree t
must not attempt to contro ert the decree. n obn-
son . ohnson s t was sad that there were cases
o bs n the nature o bs o re or ed or
the purpose o carr ng on the ormer decree where
the ourt had sometmes but sedom sad that the
de endant mght dspute t but ne er the pkunt .
The decree has determned the ueston whether t
was then debated or not and the ourt s thereb
bound.
b o re or must be sgned b ounse and s
ed n the same wa as an other b.
et us now consder what persons w be necessar
partes to the b o re or.
s a the partes who nsttute a sut are o course
nterested n the subse uent proceedngs n such sut
no one o them s permtted to re e such sut a ter
ranch . Prmrose 1 39 a precedent o a b o ths sort
3 urst 5. see the ppend o. .
r d. ed. ed. 4 p. 77. or 174 2 es. sen. 232.
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107
Original from
Diqitized by
an abatement, without informing th other. In other Parties.
word, all the l laintiff or representatives of plaintiff '--.----J
in the original lit mu t be brought before the Court
by the bill of revivor either as co-plaintiff 01' a
defendants.
Thus where a uit instituted by Swinnerton and Bar-
low, tenants in common, abated by the death of Barlow,
and hi representatives, l\Ies r . Fallowes, filed a bill
of revivor against the defendant, without bringing
Swinnerton, the surviving tenant in common, before
the Court, either as a co-plaintiff or as a defendant,
Lord Eldon said, " If for want of' authority I am to
rea on upon general principle, where joint tenant file
a bill, and by the death of one the interest survives,
without doubt there is no abatement, but the survivor
may go on. But where the interest is that of tenants
in common, there is a difficul ty in deciding that, jf ODe
dies, the representatives of that one may revive with-
out making their companion a co-plaintiff. The first
difficulty i of this sort. The plaintiffs in the bill of
revivor suggest upon the bill, that they are the repre-
entative , and that they stand in the place of the ori-
'inal plaintiff. The defendant upon this argument
either is or is not at liberty to answer. He certainly
may shew cau eagain tthe revivor in some way. Sup-
pose hedoe not, and the representatives revive: if the
co-plaintiff with the original plaintiff deceased, does not
admit that tho e pel'sons are the repre entatives, what
is there in the state of the record, so put, authori ing
the Court to say the suit is revived, in that tage,
until the surviving tenant in common has done orne
act acknowledging the relation in re pect of which he
and the alleged representative agree that there i a
right to rev ive? The urviving tenant in common
mu t have some opportunity of doing that. He may
Simple Bill and Order.
mpe and rder. 107
an abatement wthout n ormno the others. n other Partes
words a the pant s or representat es o pant s
n the orgna sut must be brought be ore the ourt
b the b o re or ether as co-pant ts or as
de endants.
Thus where a sut nsttuted b nnerton and ar-
ow tenants n common abated b the death o arow
and hs representat es Messrs. aowes ed a b
o re or aganst the de endants wthout brngng
wnnerton the sur ng tenant n common be ore
the ourt ether as a co-pant or as a de endant
ord don sad or want o authort am to
reason upon genera prncpes where ont tenants e
a b and b the death o one the nterest sur es
wthout doubt there s no abatement but the sur or
ma go on. ut where the nterest s that o tenants
n common there s a d cut n decdng that one
des the representat es o that one ma re e wth-
out makng ther companon a co-pant . The rst
d cut s o ths sort. The pant s n the b o
re or suggest upon the b that the are the repre-
sentat es and that the stand n the pace o the or-
gna pant . The de endant upon ths argument
ether s or s not at bert to answer. e certan
ma shew cause aganst the re or n some wa . up-
pose he does not and the representat es re e : the
co-pant wth the orgna pant deceased does not
admt that those persons are the representat es what
s there n the state o the record so put authorsng
the ourt to sa the sut s re ed n that stage
unt the sur ng tenant n common has done some
act acknowedgng the reaton n respect o whch he
and the aeged representat e agree that there s a
rght to re e The sur ng tenant n common
must ha e some opportunt o dong that. e ma
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Oriqinal from
C lyltlzed by
Parties. state that he is filing a supplemen tal bill to bring the
'-v--J real representative before the Court. If he is made a
co-plaintiff, by joining, he admits the character of the
representative. But suppose he knows the other is
not the heir ;-that he is obliged to get on with his
own suit, and knows another person to be the heir,
without whom he cannot get on: what is there upon
the record, where the bill of revivor does not make
the survivor a co-plaintiff, to shew that he admits the
character of the plaintiff reviving?
" Beyond that there is another difficulty in holding
that the representatives may revive without the ori-
ginal co-plaintiff; even if he does admit that they are
the representatives. Circumstances may have taken
place from which the survivor may know that it would
be gross injustice in him to pursue the suit, and that
the representatives of the deceased tenant in common
know that. Suppose they revive; and, instead of a
plea 01' dem urrer, the defendan ts state the obj ection
by answ er , and insist upon it as entitling them to the
same benefit as if it had been by plea; the cause may
go to a hearing, when revived, in the absence of the
original co-plaintiff; and he may be engaged, and
without his con ent, in further litigation, where he
thinks it unrighteous, and, if he had been sole plain-
tiff, might have desired to have his bill dismi ed with
co ts. In what mode then is he to come and say he
will have nothing more to do with the suit ?-fol'
there must be some form in which he shall be at
liberty to do so. On the one hand there is great
hazard of injustice, whether the representativ es are so,
or not; and upon general principles I .hould Ledis-
po e1to hold that the revivor ought to 1eby both, for
it i true that upon a revivor by scire facias, all lllU t
join. It would be tranae upon scire facias to a)
Of Revivor by 108
10 e or h
Partes. state that he s tng a suppementa b to brng the
rea representat e be ore the ourt. he s made a
co-pant b onng he admts the character o the
representat e. ut suppose he knows the other s
not the her that he s obged to get on -wth hs
own sut and knows another person to be the her
wthout whom he cannot get on : what s there upon
the record where the b o re or does not make
the sur or a co-pant to shew that he admts the
character o the pant re ng
e ond that there s another d cut n hodng
that the representat es ma re e wthout the or-
gna co-pant e en he does admt that the are
the representat es. rcumstances ma ha e taken
pace rom whch the sur or ma know that t woud
be gross n ustce n hm to pursue the sut and that
the representat es o the deceased tenant n common
know that. uppose the re e and nstead o a
pea or demurrer the de endants state the ob ecton
b answer and nsst upon t as enttng them to the
same bene t as t had been b pea the cause ma
go to a hearng when re ed n the absence o the
orgna co-pant and he ma be engaged and
wthout hs consent n urther tgaton where he
thnks t unrghteous and he had been soe pan-
t mght ha e desred to ha e hs b dsmssed wth
costs. n what mode then s he to come and sa he
w ha e nothng more to do wth the sut or
there must be some orm n whch he sha be at
bert to do so. n the one hand there s great
ha ard o n ustce whether the representat es are so
or not and upon genera prncpes shoud be ds-
posed to hod that the re or ought to e b both or
t s true that upon a -e or b scre acas a must
on. t woud be strange upon a scre cas to sa
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Parties.
~
109
Originalfrom
DigI tized by
that the proceeding: were to be put in the ame
plight, not only a to the per on uing it out, and
again t whom it wa sued out, but again t per on to
whom it was not a[dre ed and haying no knowledge
of it.
" Next, if the repre entative are to file their bill
of revivor, and that i only as to the intere: t of the
decea ed, though that bill states the original cau e a
the cause of both, mu t not the two causes bejoined,
o that the Court can know in which yon are going
on? I twould be novel, and against the principle of
pleading in equity, that, where the intere t i entire
as to the subject of the uit, though divided in enjoy-
ment, and the defendant might object for want of
partie, the bill of the representatives should revive
a' to that uit, the interest of the other plaintiff not
being abated ;-and therefore the two cau es are
joined, though the urv ivor may have no inclination
to go on. What i revived ?-the suit as to the in-
terest of the decea ed. But then it must, in the con-
templation of the Court, be a proceeding at the suit
of the urvivor, as hi interest is not abated, and at
the suit of the repre entative tanding in the place of
the decea ed. The con equence is, all sub equent
proce, must be at the uit of both, and in a cau 'e
intituled in the name of both; and it is very difficult
to make out that the cau e of Falloioes and others i
the cau e of Fallowes, Swinnerton, and others."
Again ;-" My 01 inion is that the proposition in
the books is true, that where oue tenant in common
die, hi representative may revi, e without the other;
but it i true only in a qualified sen e. He may re-
vive w ithout mak ina the other a co-plaintiff, but if he
doe 0, he mu ,t make him a defendant. The case of
joint tenants i not in the lea t analogous. To bring
mpe and rder. 109
that the proceedngs were to be put n the same Par t es.
pght not on as to the persons sung t out and
aganst whom t was sued out but aganst persons to
whom t was not addressed and ha ng no knowedge
o t.
e t the representat es are to e ther
o re or and that s on as to the nterest o the
deceased though that b states the orgna cause as
the cause o both must not the o causes be oned
so that the ourt can know n whch ou are gong
on t woud be no e and aganst the prncpe o
peadng n e ut that where the nterest s entre
as to the sub ect o the sut though d ded n en o -
ment and the de endant mght ob ect or want o
partes the b o the representat es shoud re e
as to that sut the nterest o the other pant not
beng abated and there ore the two causes are
oned though the sur or ma ha e no ncnaton
to go on. hat s re ed the sut as to the n-
terest o the deceased. ut then t must n the con-
tempaton o the ourt be a proceedng at the sut
o the sur or as hs nterest s not abated and at
the sut o the representat e standng n the pace o
the deceased. The conse uence s a subse uent
process must be at the sut o both and n a cause
nttued n the names o both and t s er d cut
to make out that the cause o aowes and others s
the cause o aowes cnnerton and others.
gan M opnon s that the proposton n
the books s true that where one tenant n common
des hs representat e ma re e wthout the other
but t s true on n a ua ed sense. e ma re-
e wthout makng the other a co-pant but he
does so he must make hm a de endant. The case o
ont tenants s not n the east anaogous. To brng
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fl InIfro
DI_ltlzedb
ter XI. Although this case is a
case of supplemental bill and not
of bill of revivor, yet it is appre-
hended that the dicta there given
would apply equally to the latter
sort of bill. Vide etiam AU. Gen.
v. Barkham, 1661, Hardres ,,201.
(t) Falloioee, Williamson, 1805,
11Yes. 306. Vide etiam Gibbs v.
Clturton, 1824,1 C. P.Cooper, 496.
(u) Exton v. Turner, 1681, 2
Ch. Ca. 80.
(x) Vide Feary v. Stephenson,
1838, 1Beav. 45, and post, Chap-
Of Revivor by
Original
defendants.
Parties.
110
before the Court in a revived cause all the parties, you
'--..._-J must have all upon a record that brings them all
together. The course taken in this instance is, that
the representat.ives of one tenant in common revive.
But there it no constat to the Court, whether the other
plaintiff means to take any part in the suit or not.
He must therefore be either a co-plaintiff or defen-
dant. The next consideration which leads to great
difficulty is, that, unless that is the rule of the Court,
there are two causes, which for the purpose of subse-
quent process I do not know very well how to put
together. There is an attachment in the revived
cause, but that does not embrace the original co-
plaintiff in any respect; and if you could revive with-
out making the original co-plaintiff a defendant, the
process must of necessity be intituled in Loth causes.
But that would be error; therefore the cause is not
well revived (t)."
If however one co-plaintiff has released his interest
to the remaining co-plaintiffs, he need not be a party
to a subsequent bill of revivor; but in this casethe
bill of revivor must state such release, and will in fact
be a bill of revivor and supplement (u).
Again, no person ought to be called upon to give
an account of his interest in the matter in litigation,
without knowing who are the persons calling upon
him for such account; but at the same time it is not
necessary that such accounting party should be di-
rectly informed of a change of interest in other ac-
counting parties (x). In other words, although it i..
110
e or h
Partes. be ore the ourt n a re ed cause a the partes ou
must ha e a upon a record that brngs them a
together. The course taken n ths nstance s that
the representat es o one tenant n common re e.
ut there t no constat to the ourt whether the other
pant means to take an part n the sut or not.
e must there ore be ether a co-pant or de on-
dant. The ne t consderaton whch eads to great
d cut s that uness that s the rue o the ourt
there are two causes whch or the purpose o subse-
uent process do not know er we how to put
together. There s an attachment n the re ed
cause but that does not embrace the orgna co-
pant n an respect and ou coud re e wth-
out makng the orgna co-pant a de endant the
process must o necesst be nttued n both causes.
ut that woud be error there ore the cause s not
we re ed 0-
howe er one co-pant has reeased hs nterest
to the remanng co-pant s he need not be a part
to a subse uent b o re or but n ths case the
b o re or must state such reease and w n act
be a b o re or and suppement m .
gan no person ought to be caed upon to g e
an account o hs nterest n the matter n tgaton
wthout knowng who are the persons cang upon
hm or such account but at the same tme t s not
necessar that such accountng part shoud be d-
rect n ormed o a change o nterest n other ac-
countng partes . n other words athough t s
rgna
de endants.
t aowes . amson 1 05
11 es. 306. de etam Gbbs .
hurton 1 24 1 . P. ooper 49G
ton . Turner 16 1 2
h. a. 0.
a. de ear . tephenson
1 3 1 ea . 45 and os/. hap-
ter . though ths case s a
case o suppementa b and not
o b o re or et t s appre-
bended that the dcta there g en
woud app e ua to the atter
sort o b. de etam t. Gen.
. arkham 1G61 ardress 201.
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Original from
Digitized by
(z) I t is said in The Attorney
General v. Barkham, (1661, Har ,
dress, 201,) that a new defendant
brought by bill of revivor, must
be named in every subsequent bill
of revivor, because he was not
named in the original bill. This,
however, apparently means only
that the bill which brought him
before the Court must be stated
so as to shew that he i a defend-
ant; not that he mu t be made a
defendant to every subsequent bill
of revivor.
(J J ) In Oxoltrgh v. Fincham,
16 4, 1Vern. 308, it is said that
an abated suit need not be revived
a again t a defendant who has not
answered the original bill. But
quare whether this is the present
practice? and whether the decision
wa not in reality, that there is no
revivor against adefendant who has
not appeared to the original bill?
The regi trar ' book doe not clear
the difficulty, as it merely ays that
the demurrer wa allowed, without
saying what the demurrer wa for.
a univer al rule that all the original plaintiffs or their
representatives mu t beparties to the bill of revixor,
it is not a universal rule that all the original defen-
dants or their repre entatives must be so. Thi will
depend upon whether the abatement was cau ed by
the death of a plaintiff or of adefendant. If by the
death of a plaintiff, all the defendants must, for the
rea on above given, be informed of it, and therefore
must bemade parties to the bill of revivor (y); but if
by the death of a defendant, the representative of
such deceased defendant is the only one necessary to
be brought before the Court (z).
If, then, a 'ole plaintiff dies before decree, his Death of sole
repre entati ve alone can file the bill of revivor, and plaintiff.
he must make all the defendants parties to it.
If a co-plaintiff dies before decree, all the remain- Death of a
ing co-plaintiffs, as well as the representative of theco-plaintiff.
decea ed co-plaintiff, and all the defendants, must be
partie to the bill of revivor, as plaintiffs or defen-
dants, whether it be filed by thesurviving co-plaintiffs,
or by some or one of them, or by the representative
of the deceased one.
If a defendant dies before decree, all the plaintiffs Death of a
b
. 1 bill f' 11 h defendant.
must e parties to tre 1 0 revivor, as we ate
I I I imple Bill and Order.
mpe and rder.
a un ersa rue that a the 0 m2 pant s or ter Partes
representat es must be partes to the b o re or
t s not a un ersa rue that a te orgna de en-
dants or ther representat es must be so. Ths w
depend upon -whether the abatement was caused b
the death o a pant or o a de endant. b the
death o a pant a the de endants must or the
reason abo e g en be n ormed o t and there ore
must be made partes to the b o re or but
b the death o a de endant the representat e o
such deceased de endant s the on one necessar to
be brought be ore the ourt 2 .
then a soe pant des be ore decree hs Death o soe
representat e aone can e the b o re or and P
he must make a the de endants partes to t.
a co-pant des be ore decree a the reman- Death o a
ng co-pant s as we as the representat e o the co-pamt .
deceased co-pant and a te de endants must be
partes to the b o re or as pant s or de en-
dants whether t be ed b the sur ng co-pant s
or b some or one o them or b the representat e
o the deceased one.
a de endant des be ore decree a the pant s Death o a
must be partes to the b o re or as we as the
/ n btrgh . ncham c t s sad n The ttorne
16 4 ern. 30 t s sad that Genera . arkham 1661 ar-
an abated sut need not be re ed dress 201 that a new de endant
as aganst a de endant who has not brought b b o re or must
answered the orgna b. ut be named n e er subse uent b
uaere whether ths s the present o re or because he was not
practce and whether the decson named n the orgna b. Ths
was not n reat that there s no howe er apparent means on
re or aganst a de endant who has that the b whch brought hm
not appeared to the orgna b be ore the ourt must be stated
The regstrar s book does not cear so as to shew that he s a de end-
the d cut as t mere sa s that ant not that he must be made a
the demurrer was aowed wthout de endant to e er subse uent b
sapng what the demurrer was or. o re or.
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rlgln If m
Oi I b
(h) Htemphreys v. Holli , 121,
J ac. 73.
(a) Metcalfe v. Metcalfe, 1836,
1Keen, 71.
Parties. repl'esen tative of the decea ed defendant, but not the
'---.---I other d fendants.
Revivor by a After a decree has been made in the suit, the defen-
defendant after dants a well as the plaintiffs are as we have before
decree. '
aid, considered a actors in the suit, and may revive
in case of an abatement. If in such acase a plaintiff
or the representative of a plaintiff revi \ es, the parties
mu t be regulated by the above rille ; but if a lefen-
dant or the repre entative of a defendant revives, he
must in all ca es make all the orisinal partie or their
representatives parties to the bill of revivor, whether
the abatement was caused by the death of a plaintiff Of
by that of a defendant.
Bill of revivor It must however be observed that a bill of revivor is
need not add l'bl d I' f I
an entirely new not ia e to emurrer 101' want 0 a party, iowever
party, however nece ary, who was not before the Court at the time of
nece sary. the abatement: for it is no part of the office of abill of
revivor to correct such an imperfection, but merely to
revive the suit as it stoo I at the time of the ahate-
ment(a). If the bill adde I an entirely new party, it
would be a bill of npplement a "ell a of revivor,
It need hardly be observed that if a person, exi ting
at the time of the original suit, was not a nece ary
party to it, he cannot be anece sary party to the bin of
revivor. Where therefore a suit related to a contract
by the defendant respecting his wife's estate, to which
she had not been a party, and she had therefore not
been made a party to the suit, and the defendant died,
the wife was held not to be a necessary party to the
bill of revivor against his representative (b).
Subpoena. Ifthe bill of revivor seeks merely to revive the snit,
'---.---I the ubpcena taken out must be a subpoena to revive
Of Revivor by 112
112 e or h
Partes. representat e o te deceased de endant but not the
other de endants.
e or b a ter a dec7 ee has een made n the sut the de en-
decre dants as we as the pant s are as we ha e be ore
sad consdered as actors n the sut and ma re e
n case o an abatement. n such a case a pant
or the representat e o a pant re es the artes
must be reguated b the abo e rues but a de en-
dant or the representat e o a de endant re es he
must n a cases make a the orgna partes or ther
representat es partes to the b o re or whether
the abatement was caused b the death o a pant or
b that o a de endant.
o re or t must howc er be obser ed that a b o re or s
an entre new ot abe to demurrer or want o a part howe er
part howe er neccssar who was not be ore the ourt at the tme o
ncocsstr .
the abatement : or t s no part o the o ce o a b o
re or to correct such an mper ecton but mere to
re e the sut as t stood at the tme o the abate-
ment a . the b added an entre new part t
woud be a b o suppement as we as o re or.
t need hard be obser ed that a person e stng
at the tme o the orgna sut was not a necessar
part to t he cannot be a necessar part to the b o
re or. here there ore a sut reated to a contract
b the de endant respectng hs w e s estate to whch
she had not been a part and she had there ore not
been made a part to the sut and the de endant ded
the w e was hed not to be a necessar part to the
b o re or aganst hs representat e / .
ubpoena. the b o re or seeks mere to re e the sut
the subpoena taken out must be a subpoena to re e
a Metca e . Metca e 1 : 6 b umphre s . Mos 1 21
1 een 74. ac. 73.
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Original from
Di gitized by
I
- .
Cd) Ibid. (c) Vigers v. Audley, 1 38, 9
Sim.40 ,
Subpoena.
"-v---J
only. If the bill of revivor require an answer al 0,
as where it a ks for adrnis ion of as et ,the ubpcena
rnu t be a ubpcena to revive and an, wer. So al 0, if
the bill of revivor r quire the defendant to an wer
the original hill, as where the original defendant has
died before answer, the subpeena must be a subpoena
to revive and answer. In this latter case it seem
that the defendant mu t answer the original bill, even
though the subpcena taken out is a subpoena requiring
an an wer to the bill of revivor only (c).
The form of the subpcena is ued upon a bill of revi-
VOl'i given in the Appendix to the General Orders of
1 33. I tis sue lout and erved in the same manner
a an ordinary subpeena, and if the bill of revivor i
filed against a peer, he i served with the usual letter
mi ive and an office copy of the bill of revivor; and if
the 1 ill 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, proce s for de-
fault of answer will be irregular (d), 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 al 0, if required. to be
answered.
The next step to be taken after filing the bill of Order
, (bei ind d h bi f h bill for Revivor.
reVIVOr, emg m ee t e great 0 ject 0 tel , ~
which i 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 or Ier to revive, " is not an
adoption of the original uit, unles the order for revi-
113 Simple Bill and O-rder.
mpe and rder. 113
on . the b o re or re ures an answer aso ubpoena.
as where t asks or admsson o assets the subpoena
must be a subpoena to re e and answer. o aso
the b o re or re ures te de endant to answer
the orgna b as where the orgna de endant has
ded be ore answer the subpoena must be a subpoena
to re e and answer. n ts atter ease t seems
tat the de endant must answer the orgna b e en
though the subpoena taken out s a subpoena re urng
an answer to the o re or on c .
The orm o the subpoena ssued upon a b o re -
or s g en n the ppend to the Genera rders o
1 33. t s sued out and ser ed n the same manner
as an ordnar subpoena and the b o re or s
ed aganst a peer he s ser ed wth the usua etter
mss e and an o ce cop o the b o re or and
the b o re or re ures hm to answer the orgna
b he must be urther ser ed wth an o ce cop o
the orgna b and not so ser ed process or de-
aut o answer w be rreguar c . ut the b
o re or s ed aganst an other person he must
procure or hmse an o ce cop o the b o re-
or and o the orgna b aso re ured to be
answered.
The ne t step to be taken a ter ng the b o rder
re or beng ndeed the great ob ect o the b
whch s o no use b tse s to obtan an rder or
re or. The ng o a b o re or sa s r
anceot hadwe . n a case where the e e-
cutor o a deceased pant ed a b o re or but
negected to obtan the order to re e s not an
adopton o the orgna sut uness the order or re -
c gers . ude 1 3 9 r bd.
m. 40 .
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n In I rn
01 itized b
(e) Troward v. Bingham, 1831, Philipps v. Clarke, 1833, 7 Sim.
4 Sim. 483. 234.
(f) Pruen v. Lunn, 1828, 5 (y) Rees v. Mansel, 1757, Dick.
Russ. 3, vide etiam adictum in 293.
1. Where the
defendant
absconds.
Order voris obtained. The executor has still a locus pceni-
for Revivor. . H' ill d h bill f . 1 h
'-v---Itentue. avmg e tel 0 revivor, re t en
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 ahearing 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(f).
With regard to the proper period for moving for the
order to revive, wemust premise that after a subpeena
to revive has been taken out, oneof four things may
happen. Either the defendant may abscond to avoid
being served with the subpcena; 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 again t the
revivor.
I.If the defendant absconds to avoid service of the
subpcena, the sameproce. s 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
ubstituted service of the subpoena to revive on hi
Clerk in Court in the original suit; "for," said Sir
Thomas Sewell, M. R., "the bill of revivor is a di -
tinct record from the original bill, and is as much
Of Revivor by
114
114
e or h
rder
or e or.
. here the
de endant
absconds.
or s obtaned. The e ecutor has st a ocus pcen-
tentc . a ng ed the b o re or he then
pauses and he does not adopt the orgna sut he
s not abe to the costs thereo e . The order or
re or must be obtaned on moton made or that
purpose and t s rreguar to wat or a hearng and
then re e b decree e en when t s a de endant
who re es a ter decree n the orgna sut athough
n ths case the contrar has been sometmes sup-
posed / .
th regard to the proper perod or mo ng or the
order to re e we must premse that a ter a subpoena
to re e has been taken out one o our thngs ma
happen. ther the de endant ma abscond to a od
beng ser ed wth the subpoena or second beng
ser ed wth t he ma negect to appear to the b o
re or or thrd he ma appear to the b o re-
or and shew no cause aganst the re or or
ast he ma appear and aso shew cause aganst the
re or.
. the de endant absconds to a od ser ce o the
subpoena the same process must be adopted or takng
the b pro con esso aganst hm as n the case o an
orgna b g . nd where the pant ded and
hs representat e re ed the sut the ourt re used
on a da t o the de endant s abscondng to aow
substtuted ser ce o the subpoena to re e on hs
erk n ourt n the orgna sut or sad r
Thomas ewe M. . the b o re or s a ds-
tnct record rom the orgna b and s as much
e Troward . ngham 1 31 Phpps . arke 1 33 7 m.
4 m. 4 3. 234.
/ Pruen . unn 1 2 5 ees . Manse 17 b7 Dc .
uss. 3 de etam a dctum n 293.
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Original f rem
U N I V E R S lT V 0 F C A L I F O R N I I I .
Diginzed by
(h) Until revivor, the original
bill and the bill of revivor formdis-
tinct suit. But after revivor, the
original and revived uit coalesce
into one suit. Vide dicta of ir
J.L. Knight Bruce, V. C., inJones
v. Smith, 1 42,6 Juri t,107 .
(i) Brown v. Lee; Lee v. T,Var-
ner, ]778j Dick. 545, 546j but
now by O rders III. and XVI. O ct.
26, 1 "2, the Clerks in Court are
abolished, and their dutie I in these
I 2
respects.aretransferred to the oli-
citors of the re pective parties.
(k) Vide form of subpcena in
Appendix to the O rders of 133,
and O rder XX. Augu t, 1841.
( I ) O r the plaintiff may, by the
Eighth O rder of August, 1 41enter
an appearance for him.
(m) O rder III. 1 33.
(n) O rder"\ III. 1 33.
( 0) O rder VIII. August, 1 41.
O rder
for R evivor.
'-v---J
a new bill a any other bill (ll); and a defendant'
Clerk in Court in one suit is not nece arily hi: Clerk
in Court in every snit (i)."
II. If the defendant does not ab cond from ervice II. Where the
of the ubposna but after such service neglects to defendant re-
. ' . .. . fuses to enter
appear to the bill of revivor within the time Iimited, an appearance.
that is, within four days (k), an attachment i "ue
again t him as in the case of an original bill (l); and
if he be taken on uch attachment, and neglect 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 O rder, if the defendant
cannot be found 0 a to be taken on such attach-
ment, an I a return of non est inventus is made thereon,
the plaintiff on producing such return, and affidavit
f due diligence &c., is entitled, as of cour e, on mo-
tion or petition, at the end of eight days after the
return of the attachment, to the common order to
revive. In either of the above cases the order must
recite as the ground for granting the same that the
defen lant i in contempt, and that the time limited
by the Court to shew cause against reviving the uit
ha expired (n).
III. If the defendant enters an appearance to the III. Where the
bill of revivor or if an appearance is entered for him defendant ap-
, pears but does
1y the plaintiff'(o), but the defendant doe not within not shewcause
ll5
mpe and rder. 1 5
a new b as an other b // and a de endant s rder
erk n ourt n one sut s not necessar hs erk / e or.
n ourt n e er sut .
. the de endant does not abscond rom ser ce 11. where the
o the subpoena but a ter such ser ce neerects to endant re-
uses to enter
appear to the b o re or wthn the tme mted an appearance.
that s wthn our da s an attachment ssues
aganst hm as n the case o an orgna b / and
he be taken on such attachment and negects to
enter an appearance n eght da s a ter the return o
the attachment the pant s entted as o course
on moton or petton to the common order to re-
e m . nd b the same rder the de endant
cannot be ound so as to be taken on such attach-
ment and a return o non est n entus s made thereon
the pant on producng such return and a da t
o due dgence c. s entted as o course on mo-
ton or petton at the end o eght da s a ter the
return o the attachment to the common order to
e e. n ether o the abo e cases the order must
recte as the ground or grantng the same that the
de endant s n contempt and that the tme mted
b the ourt to shew cause aganst re ng the sut
has e pred n .
. the de endant enters an appearance to the . here the
b o re or or an appearance s entered or m d/ t ap-
pears but does
b the pant 0 but the de endant does not wthn not shew cause
h nt re or the orgna respects are trans erred to the so-
b and the b o re or orm ds- ctors o the respect e partes
tnct suts. ut a ter re or the k de orm o subpoena n
orgna and re ed sut coaesce ppend to the rders o 1 33
nto one sut. de dcta o r ad rder . ugust 1 41.
. . nght ruce . n /one / r the pantt ma b the
. mth 1 42 6 urst 107 . ghth rder o ugust 1 41 enter
/ ro . ee ee . ar- an appearance or hm.
ner 177 Dck. 545 54 but m rder . 1 33.
now b rders . and . ct. rder . 1 33.
26 1 42 the erks n ourt are o rder . ugust 1 41.
aboshed and ther dutes n these
2
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n In I n
DI itized b
1842,7 J urist, II.
(r) 1831,4 Sim. 483; sed vide
Bolton v. Bolton, 1 25, 2 S. & s.
371.
(p) Order X. 1833. For the
form of the common order for re-
vivor, ee the Appendix, No. X.
(,,) Chambers v.. Middleton,
Ord~r eigli t days after his appearance shew cause against the
for Revivor. . bId fil d 1 laintiff
'--.___.I revivor y pea, answer, or emurrer e, t re p ainti
against the hall be entitled, as of course, upon motion or petition,
revivor. to the 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 revi VOl',
move to dis- 1
miss bill of neglects thereupon to obtain the order to revive, t re
revivor, if order defendant may move that the bill of revivor be dis-
for revivor is . d . h ~ I hc olaintiff btai I d
not obtained. rmsse WIt costs un ess t e p ainti 0tams t re or er
to revive within a limited time (q). 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 (r), 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 Shad well,
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 pcenitentiai ; 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."
Thi ca~ehowever does not decide that the original
bill a] 0would not have been dismissed (in pite of t.he
motion being to that extent made in an abated suit) if
the motion had been to dismiss it without costs; and Hi
Honor's change of opinion above mentioned a to the ca. e
OJ Reoioor by
116
116 e or b
rder eght da s a ter hs appearance shew cause aganst the
o . .g 3 pea answer or demurrer ed the pant
aganst the sha be entted as o course upon moton or petton
re or. 1 common order to re e whch order sha re-
cte as the ground or grantng the same that the
tme mted b the ourt to shew cause aganst re-
ng the sut has e pred p .
De endant ma the pant ha ng ed the b o re or
mTs or negects thereupon to obtan the order to re e the
re or order de endant ma mo e that the b o re or be ds-
not obtaned mssed wth costs uness the pant obtans the order
to re e wthn a mted tme . ut ths ds-
mssa o the b o re or does not e tend to a
dsmssa o the orgna b whch unt re or s
as we ha e be ore sad a per ect dstnct sut and s
besdes n a state o abatement. Thus n Trooard .
ngham t where a moton was made that the e e-
cutor o a deceased pant shoud obtan the order
or re or on hs b or the orgna b and b o
re or be dsmssed wth costs r anceot hadwe
. mted the order to the dsmssa o the b o
re or on sa ng that the ng o the b o
re or s not an adopton o the orgna sut uness
the order or re or be aso obtaned the e ecutor
has st a ocus cententce ha ng ed the b o re-
or he then pauses and he does not adopt the
orgna sut he s not abe to the costs thereo .
Ths case howe er does not decde that the orgna
b aso woud not ha e been dsmssed n spte o the
moton beng to that e tent made n an abated sut
the moton had been to dsmss t wthout costs and s
onor schangeo opnon abo e mentoned as to the case
rder . 1 33. or the 1 42 7 urst 11.
orm o the common order or re- r 1 31 4 m. 4 3 sed de
or see the ppend o. . oton . oton 1 2r 2 . .
hambers . Mkh/eton 371.
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Original from
Di gitized by
625, and supra, Chapter VI.
(y) Folland v. Lamotte, 18~O,
4 J urist, 382.
(z) nItitehem' v. Huqhe , 1753,
Dick. 283; Gordon v. Bertram,
1816, I Mer. 154.
(s) 1 38, S im, 2i7, and supra,
Chapter 1.
(t) 1 40,3 Beav. 290, and upra,
Chapter 1.
(u) 1842,1 Hare,617,andsupra,
Chapter 1.
(.1,) 18-12, 1 Y. c Coll. C. C.
of Canham v. Vincent (s), together with the arguments Ord~r
u d by Lord Langdal , M. R., in the case of Clunoich. ~
v. Dimes (t), might have warranted us in concluding
that both the oric,-inal bill and bill of revivor would,
by the present practice, be disinis ed in default of an
order for revivor obtained by the plaintiff in a given
time, the former without costs, and the latter with costs,
were it not for the recent cases of Lee v, Lee (u), and
Dryden v. Walford (x), above quoted, which, on the
other hand, determine that the original bill cannot be
dismissed, during an abatement, in default of revivor,
either with or without costs.
Wher a party is brought before the Court by a bill
of reuiuor and supplement, as a defendan t to the supple-
mental part only, he cannot move to dismiss the bill
for want of the plaintiff's obtaining the order to revive,
because he is 110tinterested in the bill so far as it is a
bill of revivor (y).
If a plaintiff: or any other party, has filed a bill After decree,
. defendant may
of revivor on an abatement after decree, but neglects revive on plain-
thereupon to obtain the usual order to revive, the de- tiff:s bill of
fend ant, as he Inight himself have filed the bill of revivor.
revivor, may, after the expiration of the usual time
allowed to the plaintiff for obtaining such order, him-
self obtain an order for revivor on the plaintiff's bill,
and that he may be at liberty to carryon the suit (z).
And uch order of revivor obtained by a defendant,
wh ther obtained on the defendant's .01' the plaintiff'
117
mpe and rder. 117
o anham . ncent s together wt the arguments rder
used b ord agdae M. . n te ease o howck t
. Dmes t mght ha e warranted us n concudng
that both the orgna b and b o re or woud
b the present practce be dsmssed n de aut o an
order or re or obtaned b the pant n a g en
tme the ormer wthout costs and the atter t/ costs
were t not or the recent cases o ee . ee and
Dr den . cd ord abo e uoted whc on the
other and determne that the orgna b cannot be
dsmssed durng an abatement n de aut o re or
ether wt or wthout costs.
here a part s brought be ore the ourt b a b
o re or and suppement as a de endant to the suppe-
menta part on he cannot mo e to dsmss the b
or want o the pant s obtanng te order to re e
because e s not nterested n the b so ar as t s a
b o re or / .
a pant or an other part has ed a b ter decree
o re or on an abatement a ter decree but negects re e on pkm-
thereupon to obtan the usua order to re e the de-
endant as he mght hmse ha e ed the b o
re or ma a ter the e praton o the usua tme
aowed to the pant or obtanng such order m-
se obtan an order or re or on the pant s b
and that he ma be at bert to carr on the sut .
nd such order o re or obtaned b a de endant
whether obtaned on the de endant s or the pant s
6 1 3 m. 2 7 and supra 625 and supra hapter .
hapter . Potand . amote -
0 1 40 3 ea . 290 and supra 4 urst 3 2.
hapter . htehearw. ughes M
m 1 42 1 are 17 and 7// ra Dck. 2 3 Gordon . eran
apter . 1 16 1 Mer. 154.
1 42 1 . 6t o. . .
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p
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rlgln I from
DI rtized b
ditch, 1832, 5 Sim. 286, which
cases although prior in point of
date to the Tenth Order of 1833,
must, it is apprehended, be con-
sidered as overruling the language
of that Order as to limiting the
time for shewing cause by plea,
(a) Pruen v, Lunn, 1828, 5
Russ, 3.
(b) 2E. Ca. Ab. 2.
(c) Vide Orders III. and XVI.
Oct. 26, 1842.
(d) Lewis v. Bridgman, 1829, 2
'im. 465, and Codrinotor: v. Houl-
Order bill of revivor, will beeffectual against all parties, both
for Revivor. 1 lai a: d tl t1 d t: d t ' )
~ t re p amtitts an re 0rer eren an sc. a .
Before the late abolition of the Clerks in Conrt, all
orders for the revival of proceedings must have been
servedonthe adverse Clerks in Court, to the end that
they might take notice that the suit was revived, and
that such revivor was right (b). Sincethe abolition of
the Clerks in Court, and the substitution, in their
places, of the solicitors of the respective parties (c), it is
apprehended that theorders for revivor must be served
onthe solicitors of the other parties.
IV. Where de- IV. Thedefendant may appear to the bill of revivor,
~:~l~:n:g~~~~S and also shew cause against the revivor.
the revivor. The defenceagainst a bill of revivor, that is, theway
~ode of shew- in which a defendant after appearing to the bill of
mg Cause. '....
against Re- revrvor, may shew cause against a SUItbemg revived,
~ is by plea or demurrer. A defendant ought never to
answer a bill of revivor at all, either for the sake of
objecting to the revivor, or for any other reason, un-
less the bin calls for an answer; and even then,
although he must answer it, and although he should
in his answer raisean objection to the propriety of re-
viving thesuit, and filehis 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 tobea submission to therevivor
of the suit, upon which, notwithstanding anything
which may be contained in the answer, it is amatter
of course to draw up the order to revive(d).
Of Reoioor by 118
11 e or h
rder b o re or w be e ectua aganst a partes both
e or. g pant s and the other de endants a .
e ore the ate aboton o the erks n ourt a
orders or the re a o proceedngs must ha e been
ser ed on the ad erse erks n ourt to the end that
the mght take notce that the sut was re ed and
that such re or was rght . nce the aboton o
the erks n ourt and the substtuton n ther
paces o the soctors o the respect e partes c t s
apprehended that the orders or re or must be ser ed
on the soctors o the other partes.
. here de- . The de endant ma appear to the b o re or
cautragan cause aganst the re or.
the re or. The de ence aganst a b o re or that s the wa
Mode o shew- - - c a de endant a ter appearng to the b o
ng ause . ...
aganst e- re or ma shew cause aganst a sut beng re ed
s b pea or demurrer. de endant ought ne er to
answe - a b o re or at a ether or the sake o
ob ectng to the re or or or an other reason un-
ess the b cas or an answer and e en then
athough he must answer t and athough he shoud
n hs answer rase an ob ecton to the propret o re-
ng the sut and e hs answer be ore the order or
re or s obtaned et ths ob ecton b answer w
not pre ent the re or o the sut the er ng o
an answer beng hed to be a submsson to the re or
o the sut upon whch notwthstandng an thng
whch ma be contaned n the answer t s a matter
o course to draw up the order to re e .
a Pruen . nnn 1 2 5 dtch 1 32 5 m. 2 G whch
uss. 3. cases athough pror n pont o
b 2 . a. b. 2. date to the Tenth rder o 1 33
c de rders . and . must t s apprehended be con-
ct. 26 1 42. sdered as o errung the anguage
d ews . rdgman 1 29 2 o that rder as to mtng the
m. 405 and odrn ton . ott- tme or shewng cause b pea
o
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Original from
ance." Langley v. Fisher, 1839,
10 Sim. 349.
(e) Order X. 1833; and Order
XX. August, 1841.
(f) Vide Boyle v. Blake, 1828,
2 Hog. 99.
(g) Vide the analogous case of
Poole v. Ma'rsh, 1837, 7 Sim. 521,
where, under the same Tenth Order
of 1833, the plaintiff obtained all
injunction at the end of the eight
days, which fell to the ground upon
the defendant's successfully demur-
ring within the twelve days.
(h) Ha?'ris v. Pollard, 1734, 3
P. '" . 348.
Digiti zed by
answer, or demurrer. And subse-
quently to that Order, Sir Lancelot
Shadwell, V. C., who decided the
above cases, says; "The rule is
that if a plaintiff files a bill of re-
vivor, and the defendant objects to
revive the suit, he must do so by
demurrer when the ground of ob-
jection appears on the face of the
bill ; but if the objection isfounded
on matter extraneous to the bill,
he must state that matter by way
of plea. I fthe defendant does not
either plead or demur to the bill of
revivor, an order to revive may be
obtained, as of course, at the ex-
piration of eight days after appear-
We have seen that, in order to prevent revivor, the Mode of shew-
defendant must shew cause against it within eight days, ing.CatuRse
agams e-
in default whereof the order for revivor will issue and vivor.
the suit will be revived. As however a defendant is '-..----I
. . . Cause may be
allowed twelve days to demur to any bill of revivor, shewn after the
and eight weeks to plead answer or demur (not demur- revivor ha.s
'11 f . }. I been obtained.
ring alone) to a bi 0 revivor wuc 1 reqUIres an an-
swer (e), he may, it is to be inferred, put in such plea,
an wer, or demurrer, after the eight days, and there-
fore after the suit has been revived (f). 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(g) 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
plaintiff had no title to revive, the objection may be
made with effect by parol at that period (h).
We have seen that sometimes the bill of revivor Answer to bill
11
e d that i hi h d ' d of revivor must
ca slor an answer, an that 111 t IS case t e eren ant be confined to
must answer it. He must however in his answer con- the subject of
fine himself strictly to such matters as are stated in
119 Simple Bill and Order.
mpe and rder. 119
e ha e seen that n order to pre ent re or the Mode o shew-
de endant must shew cause aganst t wthn eght da s ag g e.
n de aut whereo the order or re or w ssue and hor.
the sut w be re ed. s howe er a de endant s
. . ause ma be
aowed twe e da s to demur to an b ot re or shewn a ter the
and eaht weeks to pead answer or demur not demurre or has
. . been obtaned
rng aone to a b o re or whch re ures an an-
swer e he ma t s to be n erred put n such pea
answer or demurrer a ter the eght da s and there-
ore a ter the sut has been re ed / . nd when the
pea or demurrer comes on or hearng or when n
the case o an answer the re ed sut comes be ore
the ourt to be heard the re or athough obtaned
w t s presumed a to the ground the ob ec-
ton to the re or appears to be ad but other-
wse t w reman e ect e. nd e en no ob ec-
ton shoud ha e been made to the re or et on
the hearng o the re ed sut t appears that the
ant had no tte to re e the ob ecton ma be
made wth e ect b paro at that perod .
e ha e seen that sometmes the b o re or nswer to b
cas or an answer and that n ths case the de endant e con ned to
must answer t. e must howe er n hs answer con- sub ect o
ne hmse strct to such matters as are stated n
anstoer or demurrer. nd subse- ance. ange . sher 1 39
uent to that rder r anceot 10 m. 349.
hadwe . who decded the e rder . 1 33 and rder
abo e cases sa s The rue s . ugust 1 41.
that a pant es a b o re- / de o e . ake 1 2
or and the de endant ob ects to 2 og. 99.
re e the sut he must do so b de the anaogous case o
demurrer when the ground o ob- Pooe . Marsh 1 37 7 m. 521
ecton appears on the ace o the where under the same Tenth rder
b but the ob ecton s ounded o 1 33 the pant obtaned au
on matter e traneous to the b n uncton at the end o te eght
he must state that matter b wa da s whch e to the ground upon
o pea. the de endant does not the de endant s success u demur-
ether pead or demur to te b o rng wthn the twe e da s
re or an order to re e ma be / arrs . Poard 1734 3
obtaned as o course at the e - P. . 34 .
praton o eght da s a ter appear-
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r I
ze
My!. &Cr. 213.
em) Clare v. Werden, 1706,
Dick. 20.
( 12 ) Ubi supra.
(i) Wag laff v. Bryan, 1. 29, 1
R. & M. 2 .
(k) Ibid. j and Nanney v. Totty,
1822, 11 Price, 117.
( I) Deicynes v. Morris, 1 35, 1
revivor.
the bill of
Mode of shew. the bill of revivor, or would be material to his defence
ing.Cause with reference to the order to be made upon such bill
against Re- ,
vivor. just as any defendant must do in 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 (k), 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 (l), 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 Cottenbam, C., in the above cited
case of Devaynes v. Morris ( n) , "is whether the pre-
ent plaintiff is entitled to put the cause in a proper
state to carryon 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 uch facts, proceed-
ing , and merit, are irrelei ant. If the proper time
Of Revivor by
120
the b o
re or.
120 e or h
Mode o shew- the b o re or or woud be matera to hs de ence
ng ause re erence to the order to be made upon such b
aganst e- - n
or. ust as an de endant must do m hs answer to an
other b and there ore he s precuded rom
makng hs answer to the b o re or a means o
dscussng the merts o an part o the orgna sut
or o an o the ormer proceedngs /e as the ob ect
o the b o re or s ute dstnct rom that o such
orgna sut.
The de endant ma b hs answer to the b o re -
or contro ert the tte to re e athough as we ha e
seen an ob ecton b answer w not pre ent the re-
or beng on the contrar a submsson to t but t
ma we ounded a a the de endant at the hear-
ng. ut e en or ths purpose the de endant must
not n hs answer enter nto the merts o the orgna
sut / or o the decree obtaned m because the
want o tte to re e grounded not on the trans-
msson o nterest but on the merts can be made
out on b the same arguments as woud ha e been
good arguments aganst the merts and n that
case the arguments ought to ha e been used at
a as a de ence n the orgna sut. The soe
ueston sa s ord ottenham n the abo e cted
case o De a nes . Morrs n s whether the pre-
sent pant s entted to put the cause n a proper
state to carr on the decree. am o opnon that ac-
cordng to the practce o the ourt he s cear so
entted wthout an re erence to the merts o the
decree or o the acts. t oows there ore that a
the statements n the answer as to such acts proceed-
ngs and merts are rree ant. the proper tme
n a sta s. r an 1 29 1 M . r. 21 .
. M. 2 . w are . erden 1706
k bd. and anne . Tott Dck. 20.
1 22 11 Prce 117. / s pra.
/ De a nes . Morrs 1 35 1
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p
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Original from
Digitized by
for making the def nee has been permitted to pa ,the ~1ode of shew-
. . b li d i hi 1.f mg Cau e
orm Ioncannot . U P] Ie 111 t)IS manner; am. 1 new again t Re-
matter has ari en, varying the ituation of the parties, vivor.
other means exi t of bringing' it for: ard; but the right "-..--J
of a party to prosecute the decree, and therefore to do
what is necessary for that purpose, cannot depend upon
the merits of the decree."
I t appears however to have been the opinion of Sir
Lancelot Shadwell, V. C., that the defendant may in
his an wer 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 impertinen t. "In this case," ays 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 repre ent is, that
they have become bankrupt and have obtained their
certificates ince putting in their answer to the origi-
nal bill; and that a]though the plaintiffs are entitled
to rev ive the suit, yet they cannot have a decree
against the defendant in the same form as they might
hav e had if there had been no such bankruptcie and
certificate.. It a] pear too, from the Office copy of'
the bill, that the ubpcena which it prays for i: one
121 Simple Bill and Order,
m e and rder. 121
or makng the de ence has been permtted to pass the Mo - o shew-
. T 1 1 1 g ause
omsson cannot be supped n tns manner and t new aganst e-
matter has arsen ar ng the stuaton o the partes or.
other means e st o brngng t orward but the rght
o a part to prosecute te decree and there ore to do
what s necessar or that purpose cannot depend upon
the merts o the decree.
t appears howe er to ha e been the opnon o r
anceot hadwe . that the de endant ma n
hs answer brng orward new matter athough not
nterrogated thereto b the b o re or or the
purpose o contro ertng the tte to re e or o
shewng that the pant cannot ha e n the re ed
sut the same decree as he woud ha e had n the
orgna sut. Thus where the orgna de endants
a ter answerng the statements n a b o re or to
whch the were nterrogated proceeded to sa that
the had become bankrupts and had obtaned ther
cert cates pre ous to the abatement and camed
the bene t o the bankrupt aws and pra ed the same
bene t o ths ob ecton n bar to the b o re or as
the had peaded the same to the b o re or or
to the orgna b such parts o the answer were
hed to be not mpertnent. n ths case sa s r
anceot hadwe . the rght o the pant s
to re e the sut s not dened b the de endants
but what the de endants mean to represent s that
the ha e become bankrupt and ha e obtaned ther
cert cates snce puttng n ther answer to the org-
na b and that athough the pant s are entted
to re e the sut et the cannot ha e a decree
aganst the de endants n the same orm as the mght
ha e had there had been no such bankruptces and
cert cates. t appears too rom the ce cop o
the b that the subpoena whch t pra s or s one
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(0) Langley v. Fisher, 1839, 10 ('1) Nanney v. Totty, 1822, 11
Sim.345. Price, 117.
(p) 6Juri t, 1034.
Exceptions to
answer to bill
of revivor.
Mode of shew. which requires the defendants to answer the bill of
ing Cause . .
against Re- reVIVOr,as well as to shew cause, If they can, why the
vivor. 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 Ithink 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 myopinion, the defendants to
such a bill, in ca~e 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 (0)." 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 rev ivor, he shall never
OJ Revivor by 122
122
e or b
Mode o shew whch re ures the de endants to answer the b o
aganst e- re or as we as to shew cause the can wh the
- sut shoud not be re ed. These de endants b
ther answer do represent what the had a rght to
represent name that the pant s cannot ha e a
decree made aganst them n the same orm as t
mght ha e been made at the tme when the put n
ther answers to the orgna b. nd though t s
true that the ob ecton mght ha e been stated at the
bar at the hearng et thnk that t s b no means
ncumbent on de endants who are caed on to answer
a b o re or to omt an acts whch matera
concern the decree. n m opnon the de endants to
such a b n case the are re ured to answer t
ha e the same rght as a other de endants ha e
that s to state n ther answer such acts as are
a ourabe to them as shewng that the same decree
as mght ha e been orgna made cannot be ob-
taned aganst them notwthstandng those acts do
not tend to shew that the pant s are not entted to
re e the sut o . Ths case howe er s sad p to
ha e been subse uent o errued b ord ottenham.
n ob ecton to a b o re or as beng n act a
b o re or and suppement s wa ed b answer-
ng the suppementa part .
though an answer to a b o re or s abe to
e ceptons or mpertnence and nsu cenc as much
as an answer to an orgna b et sa s ord he
aron Gbert an e ecutor or admnstrator b
hs answer admts assets and the pant on the
comng n o the answer re es hs sut and proceeds
n the orgna cause on the re or he sha ne er
ceptons to
answer to b
o re or.
o ange . sher 1 39 10 anne . Tott 1 22
m. 345. Prce 117.
/ 6 urst 1034.
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Original from
Digiti zed by
(r) For. Rom. ISO. (t) Sayle v. Graham, 1831, 5
(s) Vige,'s v. Audley, 183S, 9 Sim. S.
Sim.408. (u) Vide 1Smith's Ch. Pro 523.
afterwards refer the answer for insufficiency; for this Mode of hew-
he ought to have done at first, and before he pro- ~~i~s~u~e_
ceeded to revive the original cause; hisdoingwher of vivor.
i an admission that the answer was full and perfect; '-..-'
or otherwi ehe 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
original bill, as well as for an answer to itself, the ~~:~~; ~~llsfor
usual practice is to include the answer to the original original bill.
bill and the answer to the bill of revivor in the same
an wer. The answer is then intituled as the answer
to bothbills (s). I tappears however that the answers
may beseparated if the defendant prefers it (t).
The process for enforcing an answer to abill of re- Process.
vivo}' requiring an answer, is the sameas that which
i in use with respect to original bills.
If, aswe shall seeis sometimes the case, it becomes Replication.
necessary to bring the bill of revivor to ahearing, 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
uit 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
r join sen ed, after which the proceedings will be the
same as on the original bill (u).
A simple bill of revivor, as it requires no answer, of Hearing.
cour erequires no hearing. But if the bill of revivor
123 Simple Bill and Order,
mpe and rder. 1 23
a terwards re er the answer or nsu cenc or ths Mode o shew-
he ought to ha e done at rst and be ore he pro- a s g.
ceeded to re e the orgna cause s dong whereo or.
s an admsson that the answer was u and per ect
or otherwse he mght ha e e cepted thereto and had
the opnon o the ourt thereon but then he coud
not ha e proceeded to re e t he had got o er that
pont r .
hen the b o re or cas or an answer to the hen b o
oro na b as we as or an answer to tse the
usua practce s to ncude the answer to the orgna orgna b
b and the answer to the b o re or n the same
answer. The answer s then nttued as the answer
to both bs s . t appears howe er that the answers
ma be separated the de endant pre ers t .
The process or en orcng an answer to a b o re- Process.
or re urng an answer s the same as that whch
s n use wth respect to orgna bs.
as we sha see s sometmes the case t becomes epcaton.
necessar to brng the b o re or to a hearng a
repcaton s necessar as n the case o an orgna
b and answer. the b o re or s ed be ore
decree or be ore ssue oned n the orgna sut a
separate repcaton s not necessar but the re ed
sut and the orgna sut ma be set down under one
cert cate. ut the b o re or s ed a ter
decree or a ter ssue oned n the orgna sut a
separate repcaton must be ed and subpoenas to
re on ser ed a ter whch the proceedngs w be the
same as on the orgna b m .
smpe b o re or as t re ures no answer o earng.
course re ures no hearng. ut the b o re or
r or. om. 1 0. / a e . Graham 1 31 5
s gers . ude 1 3 9 m. .
m. 40 . w de 1 mth s h. Pr. 523.
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(z) Vide Huggins v, York Build.
ings Co., 1740, Barnard, 83.
(x) 3 Dan. Ch. Pro 222 j Seton,
3 5.
(y) 1734, 3 P. W. 348.
Mode of shew. calls for an answer as to assets, and assets are not
~~~i~~u~ee. admitted, the suit must be set down to be heard in
vivor. 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
snit (after having been duly revived by the order for
revivor, which issues notwithstanding the objection
by the answer) comes on for hearing in the regular
way.
If howe, er the objection to the revivor is taken by
plea 0)' 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 snit will be ordered to
stand revived without a new subpoena(z).
If the bill of revivor is filed before decree, and re-
quires to be heard, the revivor suit may, if the original
uit has not been set down for hearing.jbe set down
together with it; but if the original suit has been
Of Revivor by
1:24
1-24
e or h
Mode o shew
ng ause
aganst e-
or.
. cas or an answer as to assets and assets are not
admtted the sut must be set down to be heard n
order to obtan a decree or an account. t has been
sad too that n an case an answer s put n
to a b o re or whch contro erts the tte to
re e or an thng put n ssue b the b o re or
t must be set down or hearng notwthstandng the
order or re or has been or ma be obtaned on
moton n the meantme. The case o arrs . Po-
ard s uoted n support o ths asserton but t s
submtted that that case does not decde that an ob-
ecton b answer to the re or o the sut necess-
tates the settng down o the b o re or or hear-
ng but mere that such an ob ecton ma be made
b answer and ma be nssted on when the orgna
sut a ter ha ng been du re ed b the order or
re or hch ssues notwthstandng the ob ecton
b the answer comes on or hearng n the reguar
wa .
howe er te ob ecton to the re or s taken b
pea or demurrer the b o re or must be brought
to a hearng or the sake o dsposng o such pea or
demurrer and upon argument the pea or de-
murrer s aowed the order or re or aread
obtaned w as we ha e seen ose ts e ect and the
re or w a to the ground and the pea or
demurrer s dsaowed the sut w be ordered to
stand re ed wthout a new subpoena s .
the b o re or s ed be ore decree and re-
ures to be heard the re or sut ma the orgna
sut has not been set down or hearng be set down
t but
together wth
the orgna sut has been
3 Dan. h. Pr. 222 eton r de tg ns . ork ud-
365. n s o. 1740 aruad 3.
1734 3 P. . 4 .
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Original from
DI gI tI zed by
J urist, 314.
(d) Vide 1Smith's Ch. Pro 403.
(a) 1 mith's Ch. PI'. 523.
(b) 3 Dan. Ch. Pro 223.
(c) Lake v. Anstu-ick, 1 40, 4
already set down, the revix or suit lU U t be . et down Moue of shew-
eparately ; and in re pect of all fee and charge will ing.CauRe
. . . again t e-
be consid red a a separate suit until decree (a). But vivor.
if the bill of revivor i filed after decree and require ~
to be heard, it mut of course be et down 1 y itself,
unle. the uit is to come on for hearing on further
direction, in which case the revived suit may be .et
down 0 as to come on with it (b).
Of course a bill of revivor and supplement must be
et down to be heard. And it must be set down
again t the party to the revivor part of it, as well a
again st the party to the supplemental part of it, al-
though, if there had been no supplemental part, it
need not have been set down again t the form r
J arty (c).
If it is nece sary to set the bill of revivor down for Subp?3nas to
hearing, it appear~ that subpcenas to hear judgment in hear J udgment.
re pect of the bill of revivor mu t be served indepen-
dently of' the subpcena to hear judgment in the origi-
nal uit (d).
125
mpe and rder. 125
aread set down the re or sut must be set down Mode o shew-
separate and n respect o a ees and charges w 5 3 .
be consdered as- a separate sut unt decree a . ut or.
the b o re or s ed a ter decree and re ures
to be heard t must o course be set down tse
uness the sut s to come on or hearng on urther
drectons n whch case the re ed sut ma be set
down so as to come on wth t b .
course a b o re or and suppement must be
set down to be heard. nd t must be set down
aganst the part to the re or part o t as we as
aganst the part to the suppementa part o t a-
though there had been no suppementa part t
need not ha e been set down aganst the ormer
part c .
t s necessar to set the b o re or down or ubpoenas to
hearng t appears that subpoenas to hear udgment n
respect o the b o re or must be ser ed ndepen-
dent o the subpoenas to hear udgment n the org-
na sut
a 1 mth s h. Pr. 523. urst 314.
b 3 Dan. h. Pr. 223. d de 1 mth s h. Pr. 403.
c ake . nst ck 1 40 4
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Nature of WE have seen that when the newparty claims through
~ the act of the former party, as in the ca e of a death
accompanied by a devise, he cannot be simply put in
the place of his predecessor, as where the right de-
vol ves 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 ismatter which maybe litigated inthe 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. I tis
neces ary 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 cea eel
to be represented was a sole plaintiff, or a defendant
or co-plaintiff.
I. Where a 1. Where the party dying is a sole plaintiff, the suit.
sol~Plaintiff can only be revived bya neworiginal bill the nece sity
devises, '
~ for which is clearly shewn in the following dicta'
"The reasons why regularly the devisee of a sol
plaintiff cannot bring a bill of revivor, are, fir t, b -
cause a suit hath been looked upon as a chose in ac-
OF REVIVOR BY SUPPLEMENTAL SUIT AND DECREE.
CHAPTER VIII.
126
126
PT .
PP M T T D D .
ature o e ha e seen that when the new part cams through
tbeProcess. the act o the ormer part as n the case o a death
accompaned b a de se he cannot be smp put n
the pace o hs predecessor as where the rght de-
o es b operaton o aw rom the want o mmedate
pr t between the ate and the present owner. There
s rst a connectng nk to be supped between them
and ths s matter whch ma be tgated n the ourt o
hancer . ow a smpe b o re or s cear n-
ade uate or ths purpose whch cannot be determned
wthout a hearng. ether can t be e ected b a b
o re or and suppement because n such a b the
suppementa matter must not concern the tte to re-
e but on contemporaneous crcumstances. t s
necessar to e a b b whch the rght to re e
ma be put n ssue supported b proo and estabshed
b a decree.
There are two sorts o bs b whch ths ma be
done accordng as the part whose nterest has ceased
to be represented was a soe pant or a de endant
or co-pant .
. here a - here the part d ng s a soe pant the sut
soe Pant r re ed b a new orgna b the necesst
or whch s cear shewn n the oowng dcta
The reasons wh reguar the de see o a soe
pant cannot brng a b o re or are rst be-
cause a sut hath been ooked upon as a chose n ac-
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Original frr m
Digitized by
Vern. 54 .
(c) Ibid.
(a) 1E. Ca. Ab. 2.
(0) Clare .v. WordalZ, 1706, 2
tion, and consequently not assignable for fear of main- I .Where a
tenance. econdly, andwhich seems the better rea- ~~~s~~~intiff
.on, because where aplaintiff devise hi intere t and ,,--,---
dies, if the devi ee were to bring a bill of revivor
against the defendant, the heir or executor would b
pretermitted, who might have aright to contest uch
dispo ition; and therefore he must bring his original
hill andmake the heir or executor aparty (a)."
The new party, then, if he wish to revive the suit, Original bill in
til
.. I b'II . .. d II the nature of
must ean ongma I, putting I I I Issue e novo a abill of revivor.
the fact stated in the original bill, and then shewing
his succes ion to the interest of the former party, and,
as in the caeof a imple bill of revivor, praying re-
vivor of the uit ; which revivor will however be
granted, not on a mere order, but on a decree to be
made on the newmatter.
uchabill is informas much an original bill as any
other original bill, and, until it has proceeded to ade-
creereviving the former suit, is infact 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 bill of revivor, and is virtually acon-
tinuation of the former uit.
It i in fact an original bill sofar only as it supplie
the want of privity, and in all other respect i the
same as abill of revivor (b). When once the validity
of the alleged tran. mis ion of intere t is e.tabli hed,
the new party will have the same advantage of the
proceeding on the original bill, a if there had 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 uit is considered a pending
from the filing of the original bill, 0 a to ave the
127 1 Of Reoiuor by upplemental Suit and Decree.
e or h uppementa ut and Decree. 127
ton and conse uent not assgnabe or ear o man- . here a
tenance. econd and whch seems the better rea- g es
son because where a pant de ses hs nterest and
des the de see were to brng a b o re or
aganst the de endant the her or e ecutor woud be
pretermtted who mght ha e a rght to contest such
dsposton and there ore he must brng hs orgna
b and make the her or e ecutor a part a .
The new part ten he wsh to re e the sut rgna b a
. 1 1 M - 11 the nature o
must e an orgna b puttng n ssue ae no o a a bo re or.
the acts stated n the orgna b and then shewng
hs successon to the nterest o the ormer part and
as n the case o a smpe b o re or pra ng re-
or o the sut whch re or w howe er be
granted not on a mere order but on a decree to be
made on the new matter.
uch a b s n orm as much an orgna b as an
other orgna b and unt t has proceeded to a de-
cree re ng the ormer sut s n act the commence-
ment o a new sut. ut as ts ob ect and e ect are
to re e the ormer sut b the decree t s sad to be
n the nature o a h o re or and s rtua a con-
tnuaton o the ormer sut.
t s n act an orgna b so ar on as t suppes
the want o pr t and n a other respects s the
same as a b o re or b . hen once the adt
o the aeged transmsson o nterest s estabshed
the new part w ha e the same ad antage o the
proceedngs on the orgna b as there ad been
a pr t o nterest b operaton o aw between hm
and the orgna part : the de endants cannot make a
new de ence c and the sut s consdered as pendng
rom the ng o the orgna b so as to sa e the
a 1 . a. b. 2. ern. 54 .
6 are . orda 1706 2 c bd.
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p
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n In I
I rnze b
(f) Clare v. Wordall, ubi supra.
(r;) 1700, Pro cu. 134.
(d) Child v. Frederick, 1714, 1
P. W. 266.
(e) Ltl. Red. ed. 4, p. 98.
statute of limitations (d), and so as to have the ad-
vantage of compelling the defendant to answer before
all answer can be compelled to the defendant's cross
bill, ifhe has filed one(e). Ifa 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 (f).
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 asubsequent settlement of 1684 on Lady Phila-
del phia Wentworth and her heirs, and was signed and
enrolled. Afterwards Lady Lovelace died, and Lady
Philadel phia devised the estate to Northey and other
trustees for the payment of her debts and legacies,
and a bill was filed hy the creditors and legatees
against Northey the surviving trustee, and against
Sir Henry and Lady J ohnson, 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
J ohnson 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 J ohnson might controvert the matter over
agall1. It must be observed, however, first, that the
Of Revivor by
I. Where a
sole Plaintiff
devises.
"----'
128
12 e or h
. here a statute o mtatons and so as to ha e te ad-
de ses antage o compeng the de endant to answer be ore
an answer can be compeed to the de endant s cross
b he has ed one e . a decree has been made
n the orgna sut the de see o the pant has the
same ad antage o t as an her or e ecutor wthout
enterng nto the merts o the cause and the decree
on the new b s the same as the rst decree nether
onger nor shorter / .
There s a case o ohnson . orthe g whch
seems to mtate aganst the doctrne that a decree
obtaned b a de sor enures to the bene t o hs de-
see and cannot be contro erted. n that case a de-
cree b de aut had set asde a settement o 163
under whch ad o eace camed and had estab-
shed a subse uent settement o 16 4 on ad Pha-
depha entworth and her hers and was sgned and
enroed. terwards ad o eace ded and ad
Phadepha de sed the estate to orthe and other
trustees or the pa ment o her debts and egaces
and a b was ed b the credtors and egatees
aganst orthe the sur ng trustee and aganst
r enr and ad ohnson the atter o whom was
the heress o ad o eace to ha e the bene t o
the decree and to ha e the debts and egaces pad
and another b was aso ed b r enr and ad
ohnson to set asde the settement o 16 4. t was
hed on the causes comng on to be heard together
that the credtors b beng to obtan the bene t o
the decree had opened the decree and that r enr
and ad ohnson mght contro ert the matter o er
agan. t must be obser ed howe er rst that the
hd - . rederck 1714 1 / are . orda ub supra.
P. . 266. 7 1700 Pr. h. 134.
e d. ed. ed. 4 p. 1 .
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p
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Original fmm
Diqitized by
decree wa obtained on default, and econdly that the I .Where a
bill in the econd suit wa. filed not by th devi ee sol~Plaintiff
, , devises.
but by hi cestui que trusts against him, and that they '-v----I
had apparently no rea on for making 'il' Henry J o11n-
on and his wife parties, except for the purpose of
bringing again into [uestion the very point which had
been decided.
A to the form of the original bill in the nature of a Form of the
bill of revivor, it must not only tate the fact of the bill.
filing of the original bill, but mu t also repeat the
fact tated in that original bill. 'I'hi is usually done
by stating that the original bill so tated them, and
averring that it tated them truly; but perhap the
better way i to tate the fact of the ca e as indepen-
dent tat 111 nts, and then to proceed to state that an
original bill wa: filed making such statement ; by
which mean the pleader avoids the complication of
the statement within statements which must occur in
the former \yay.
I twill at fir t sight appeal' trange that the facts of
the original case must thus be repeated de novo, seeing
that it has been already aid that the defendant i
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. I t would
eem as if, under these circu mstances, the truth or
fa}ehood of the ca e made by the original bill were
immaterial, and that all that need be averred in the
revivin bill is the institution, right or wrong, of the
original. uit, it abatement, and the title of the new
plaintiff to revive. And thi rea oning would be true
in the ca e of an heir, executor, or administrator: who
take by operation of law, and on whom therefore the
right devolv of uPI orting the claims of the testator
or inte tate, a mere claim, without reference to their
K
129 Supplemental Suit and Decree.
uppeuenta ut and Decree. 129
decree was obtaned on de aut and second that the . where a
b n the second sut was ed not b the de see soe Pamt
. de ses
but b hs cestu ue trusts ag anst hm and that the .
had apparent no reason or makng r enr ohn-
son and hs w e partes e cept or the purpose o
brngng- agan nto ueston the er ont whch had
been decded.
s to the orm o the orgna b n the nature o a orm o the
b o re or t must not on state the act o the
ng o the orgna b but must aso repeat the
acts stated n that orgna b. Ths s usua done
b statng that the orgna b so stated them and
a errng that t stated them tru but perhaps the
better wa s to state the acts o the case as ndepen-
dent statements and then to proceed to state that an
orgna b was ed makng such statements b
whch means te peader a ods the compcaton o
the statements wtn statements whch must occur n
the ormer wa .
t w at rst sght ap ear strange that the acts o
the orgna case must thus be repeated de no o seeng
that t has been aread sad that the de endant s
bound b a the proceedngs n the orgna sut and
cannot make a new de ence aganst the de see nor
dspute the decree an has been made. t woud
seem as under these crcumstances the truth or
asehood o the case made b the orgna b were
mmatera and that a that need be a erred n the
re ng b s the nsttuton rght or wrong o the
orgna sut ts abatement and the tte o the new
pant to re e. nd ths reasonng oud be true
n the case o an her e ecutor or admnstrator who
takes b operaton o aw and on whom there ore the
rght de o es o supportng the cams o the testator
or ntestate as mere cams wthout re erence to ther
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rlgln I from
Digitizedby
(h) 1E. Ca. Ab. 2. p. 73. For a precedent of such a
(i) Vide Clarev.Wordall, )706, bill, see the Appendix, No. Xl.
2 Vern. 548; and Ld. Red. ed. 4,
1. Where a validity; and accordingly a simple bill of revivor
sole Plaintiff h 1
devises. never avers t etruth of the facts stated in the origina
"-v----Jbill. But, as has been already shewn from the pas-
sage in the Equity Cases Abridged (h), a mereclaimis
110tregarded as a subject for assignment, either inter
vivos, or by will; and therefore aplaintiff, 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 faceof hisbill, 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 byhis death. And though
these averments, like all other statements in a bill, re-
quire to be admitted or proved, yet they need nofresh
admissions or proofs, but may be sustained on the
answers put in, or the evidence entered into, or the
decree orders 0]' reports made, in the original suit.
Fer this purpose the bill in question must proceed
to state all the proceedings which have been had in
the original suit, including the decree, if one has been
pronounced. Itmust 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. Itmust 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).
Of Revivor by 130
.
130 e or h
. here a adt and accordng a smpe b o re or
de ses ne er a ers the truth o the acts stated n the orgna
b. ut as has been aread shewn rom the pas-
sage n the ut ases brdged a mere cam s
not regarded as a sub ect or assgnment ether nter
os or b w and there ore a pant who stated
mere that hs testator was prosecutng a cam and
had de sed to hm the bene t o that cam woud
shew a bad tte on the ace o hs b and a that b
open to a demurrer. e must aege and shew that
hs testator had a ad cam whch b means o the
de se woud ha e de o ed on hm athough there
had been no sut pendng and then he w be n a
stuaton to ask or the bene t o the sut whch the
testator had commenced or en orcng that cam but
whch had been nterrupted b hs death. nd though
these a erments ke a other statements n a b re-
ure to be admtted or pro ed et the need no resh
admssons or proo s but ma be sustaned on the
answers put n or the e dence entered nto or the
decree orders or reports made n the orgna sut.
or ths purpose the b n ueston must proceed
to state a the proceedngs Mdch ha e been had n
the orgna sut ncudng the decree one has been
pronounced. t must then state the abatement and
the manner n whch the propert has become ested
n the new part . t must charge that the new part
s entted to re e the sut and ca or an answer n
the usua wa . t must then pra that the sut ma
be re ed and there has been a decree that the
pant ma ha e the bene t o t or that the same
decree ma be made n hs a our
h 1 . a. b. 2. p. 73. or a precedent o such a
de are . orda 0 b see the ppend o.
2 ern. 54 and d. ed. ed. 4
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Original f rem
U N I V E R S I T Y 0 F C A U F OR N I A
Drgitized by
(k) 1E. Ca. Ab. 2.
K2
All the oriainal defendants will be neces ary par tie: I .Where a
to the new bill, being' all equally intere ted in the sdOl~Plaintiff
evises.
change of a sole plaintiff. The heir at law of the ~
devisor mu t also be made aparty defendant, in order Parties.
that he may have an opportunity of questioning the
validity of the devise, if he thinks proper (h).
I tha been already stated, that although the new Defence.
party is obliged to pnt the whole case in i sue afre h in
order to make out hi 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
ouaht therefore, in their answer to the reviving bill,
merely to refer to their former answer. 0 far a regard
the original statements; but as to the additional mat-
ter they ar at full lib rLyto put in such answer as they
may be advi ed.
If the answers do not admit the plaintiff's title to Subsequent
revive, he must reply and enter into evidence to prove proceedings.
the fact ubsequent 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 di tinct suit from the original or
abated suit, and up to that decree is conducted in the
arne manner as any other original suit.
II. When the devi 01' is a defendant.-The same II. Where a
rule which apply in favour of the new party beinz a De~endant
, e devises.
plaintiff, apply against him when he is a defendant. '-.---J
He i bound by hi predeces or's defence, when he
succee I to a defendant's interest, as much as he takes
advantage of hi predece or' proceedings, when he
ucceed to a plaintiff' intere t; and if a decree ha
been made in the cau e the devi ee of a defendant
uppementa ut and Decree. 131
the orgna de endants w be necessar partes . here a
soe Pa
de ses.
to the new b beng- a e ua nterested n the Pant
change o a soe pant . The her at aw o the
de sor must aso be made a part de endant n order
that he ma ha e an opportunt o uestonng the
adt o the de se he tnks roper .
t has been aread stated that athough the new De ence.
part s obged to put the whoe case n ssue a resh n
order to make out hs tte to ree et the de endants
cannot contra ene ths case urther than the ha e a-
read done b ther answers to the orgna b. The
ought there ore n ther answer to the re ng b
mere to re er to ther ormer answer so ar as regards
the orgna statements but as to the addtona mat-
ter the are at u bert to put n such answer as the
ma be ad sed.
the answers do not admt the pant s tte to ubse uent
re e he must rep and enter nto e dence to pro e proceedngs.
the acts subse uent to the abatement and a ter pub-
caton passed he must set down the re or sut or
hearng.
nt the decree or re or has been pronounced
the re or sut s a dstnct sut rom the orgna or
abated sut and up to that decree s conducted n the
same manner as an other orgna sut.
. hen the de sor s a de endant. The same 11. here a
rues whch app n a our o the new part beng a ant
ant app aganst hm when he s a de endant.
e s bound b hs predecessor s de ence when he
succeeds to a de endant s nterest as much as he takes
ad antage o hs predecessor s proceedngs when he
succeeds to a pant s nterest and a decree has
been made n the cause the de see o a de endant
k 1 . a. b. 2.
2
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n In I
I I I b
meuts of the original bill, and also
alleged the truth of such statements.
With deference, it is submitted that
this was uunecessary, if not wrong.
He did Dot however interrogate to
them, but merely asked whether
the bill did not 0state them.
(u) 3Atk. 21t.
(0) Ld. Red. ed. 4, p. 71.
(1) Minsltull v. Molum, 1711, 2
Vern. 672.
(m) In JiVoods v. Jirood., 1839,
10Sim. 197, a plaintiff filed a bill,
purporting to be a supplemental
bill in nature of a bill of revivor,
again t a defendant's devi ee , in
which he put the oriainal facts in
i sue; i. e. he stated them a state-
II. Where a cannot question that decree, for otherwise he would be
Defendant
devises. in a better condition than the heir, wherea the h eres
"-..--' natus is favoured rather than the hceresfactus (l).
Supplemental The original Ilaintiff therefore in this case files abill
bill in nature (' 1" I bill b . ] I
of bill of referring to t ie ongma I, ut WItrout putting t ie
revivor. facts of the case in issue (m), there being no necessity
for his filing all 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
wil l 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 upplemen tal bill, but from
its praying revivor, it is called a supplemental bill in
the nature of a bill of revivor (n).
Lord Redesdale sa) s(0), " If the death of a paTty
whose interest is not determined by his death i at-
tended with such a transmission of hi intere t that
the title to it, as well a 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 plaintif], for in a former pa -
Of Revivor by
132
132
e or b
. here a
De endant
de ses.
uppementa
b n nature
o b o
re or.
cannot ueston that decree or otherwse he woud be
n a better condton than the her whereas the hceres
natus s a oured rather than the hceres actus .
The orgna pant there ore n ths case es a b
re errng to the orgna b but wthout puttng the
acts o the case n ssue m there beng no necesst
or hs ng an orgna b because he has aread
made out hs tte to ree aganst the new de endant s
predecessor and can there ore contnue the sut rom
the pont where t abated. ut he must put n ssue
the de endant s successon to the nterest and as n
the ast case pra or re or o the sut whch re or
w be granted not on mere order because there s
new matter to be tgated but b a decree upon the
suppementa matter.
uch a b s n act a suppementa b but rom
ts pra ng re or t s caed a suppementa b n
the nature o a b o re or / -
ord edesdae sa s o the death o a a -
whose nterest s not determned b hs death s at-
tended wth such a transmsson o hs nterest that
the tte to t as we as the person entted ma be
tgated n the ourt o hancer as n the case o a
de se o rea estate the sut s not permtted to be
contnued b b o re or. n orgna b upon
whch the tte ma be tgated must be ed c.
t s e dent howe er that hs ordshp s here speak-
ng on o a part pant or n a ormer pas-
Mnshu . Mo/nn 1711 2
ern. 672.
m n oods . T oor/. 1 :59
10 m. 197 a pant ed a b
purportng to be a suppementa
b n nature o a b o re or
aganst a de endant s de sees n
whch he put the orgna acts n
ssue . e. he stated them as state-
ments o the orgna b and aso
aeged the truth o such statements.
th de erence t s submtted that
ths was unnecessar not wrong.
e dd not howe er nterrogate to
them but mere asked whether
the b dd not so state them.
u 3 tk.217.
d. ed. c . 4 p. 71.
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Original from
Digiti zed by
(q) lbid. p. 70. (1') Ld. Rd. ed. 4, p. 8.
ag (p) wh 11 peaking of the inter t of a def ndant II. Where a
becoming vested in another per on "as in the case of De~enda[lt
, devises,
alienation by deed 0)' devi e," hi Lord hip ays, that '-v-----'
" the defect may be supplied by upplemental bill,
whether the uit is become defective merely or abated
as well as defective;" and he add, " in all these cases,
if the uit has become abated as well as defective, the
bill i commonly termed a upplemental bill in the
nature of a bill of revivor, as it has the effect of a bill
of revivor in continuing' the suit." I tneed hardly be
added that a supplemental bill in the nature of a bill
of revivor is very different from a bill of revivor and
upplement, although His Lord hip says (q) that thi
latter ort of bill may be nece ary in case of" a devise
under certain circumstances." The latter bill, how-
ever, i ,a we have before stated, merely the union of
two bill, viz. abill of revivor and a upplemental bill,
and i used where there is defect independently of the
abatement, and which cannot becured by ruere revivor,
while the former sort is used where the abatemen t and
defect together form one chain of events to be brought
before the Court.
I fa lefendant devi es hi interest and dies before he Where a de-
ha appeared to the original bill the suit having' a wefendant devise
'. . ' . before appear-
have before ob erved, never existed as against him, ance to original
cannot e aid to have abated by his death, and there- bill.
fore cannot be revived again t his devisee. The
imperfection ha been inherent in the suit from the
beginning, and the case therefore falls within the
description of imperfections mentioned in the second
chapter of this treatis ,and is remedied in the manner
there pointed out.
The u plernental Li11 in the 11 Lure of a bill of Form of the
bill.
133
Iupplemental Suit and Decree.
sage p wen speakng o the nterest o a de endant . here a
becomne: ested n another person as n the case o 5
o _ _ de ses.
aenaton b deed or de se s ordshp sa s that
te de ect ma be supped b sn penenta b
whether the sut s become de ect e mere or abated
as we as de ect e and he adds n a these cases
te sut has become abated as e as de ect e the
b s common termed a suppementa b n the
nature o a b o re or as t has the e ect o a b
o re or n contnung the sut. t need hard be
added that a suppementa b n te nature o a b
o re or s er d erent rom a b o re or and
suppement athough s ordshp sa s that ths
atter sort o b ma be necessar n case o a de se
under certan crcumstances. The atter b how-
e er s as we ha e be ore stated mere the unon o
two bs . a b o re or and a suppementa b
and s used where there s de ect ndependent o the
abatement and whch cannot be cured b mere re or
whe the ormer sort s used where the abatement and
de ect together orm one can o e ents to be brought
be ore the ourt.
a de endant de ses hs nterest and des be ore he here a de-
has appeared to the orgna b the sut ha ng as we be ore a
ha e be ore obser ed ne er e sted as aganst hm ance to orgna
cannot be sad to ha e abated b hs death and there-
ore cannot be re ed aganst hs de see. The
mper ecton has been nherent n te sut rom the
begnnng and the case there ore as wthn the
descrpton o mper ectons mentoned n the second
chapter o ths treatse and s remeded n the manner
there ponted out.
The suppementa b n te nature o a b o orm o the
b.
d. ed. ed. 4 p. G . bd. p. 70.
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Ori inal f m
Digitizedb
(r) 1839, 10Sim, 197.
(8) For a precedent of this sort of bill, see the Appendix, No. XII.
revivor must state the filing of the orig'inal bill, and
it appears that it must also state so much of the con-
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 fiV oods v.
W oods ( 1 ' ) , Sir Lancelot Shadwell, V. C., allowed the
repetition, in asupplemental bill inthe nature of abill
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 abovecase,
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 have been had inthe cause, down to the time of
the abatement. It must tate 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. I tmust then pray for a revivor of
the original suit (s).
If a plaintiff wishes to amend his case after the de-
fendant has died and devised his interest, it is saidthat
he cannot amend his original bill, but must insert such
amended statements in his supplemental bill in nature
Of Revivor by
Amendment of
the original
case.
II. Where a
Defendant
devises.
"--.----'
134
134 e or h
. here a re or must state the ng o the orgna b and
De endant - appears that t must aso state so much o the con-
de ses t
. tents thereo as w be necessar to make an nte-
gbe stor n the new b. t ma sometmes be
necessar or ths purpose to state near the whoe o
the contents o the orgna b. Thus n oods .
oods - r anceot hadwe . aowed the
repetton n a suppementa b n the nature o a b
o re or o near a the statements n the orgna
b sa ng that the stor coud not ha e been made
ntegbe wthout them. The pant howe er
ought not to a er the truth o the orgna statements
because as Master Dowdeswe sad n the abo e case
ths has the e ect o puttng those statements n ssue.
n genera the rues as to ths pont are the same as
those aread g en n the second chapter o ths trea-
tse as to the speces o suppementa bs treated o
n that pace.
The b n ueston must then state the proceedngs
whch a e been had n the cause down to the tme o
the abatement. t must state the abatement and the
transmsson o nterest to the new de endant. t
must charge that the pant s entted to re e the
abated sut aganst the new de endant and ca or an
answer n the usua wa and the orgna de en-
dant ded be ore answerng the orgna b the new
b must aso ca upon the new de endant to answer
the orgna b. t must then pra or a re or o
the orgna sut 5 .
mendment o a pant wshes to amend hs case a ter the de-
o endant has ded and de sed hs nterest t s sad that
he cannot amend hs orgna b but must nsert such
amended statements n hs suppementa b n nature
r 1 39 10 m. 197.
. or a precedent o ths sort o b see the ppend o. .
case.
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Original from
Digitized by
(y) For the form of a decree for
revivor, see the Appendix, No.
XIII.
(t) 1839, 10 im, 197.
(u) 3 Atk. 217.
(x) 1E. Ca. Ab. 2.
of abill of revivor. Thu in Woods v. lYoods(t), where II. Wnere a
the plaintiff filed a .upplemental bill in the nature of aD d e~endant
evises.
bill of revivor again t the devisee of a defendant, and '-v----I
in it tated everal pa age from the defendant'
answer, and founded charges upon them, it was held
that the e tatements and cbarges were not imperti-
nent, because he might certainly have made them
as again t the original defendant by amend nent of the
original bill; and as the devisees are not called upon to
answer the original bill, and have no office copies of it,
there isno other way of amending as against them than
by introducing the amendment into the supplemental
bill. In thi ca e it i apprehended that the new bill
ought to be filed against all the defendants against
whom the original bill would have been amended.
With regard to the parties to the bill in que tion, Parties.
all the plaintiffs, if there were more than one, must
for the arne rea on~as were given in the case of a
imple bill of revivor, be made parties to a upple-
mental bill in the nature of a bill of revivor, either a.
co-plaintiff: or as defendants; but of the defendants,
only the devisee of the original defendant need be
made aparty to the new bill, the other defendant not
being affected by the abatement and devise (u).
The heir at law of the devi or must also be brought
before the Court by the new bill, in order that he may
have an opportunity of di puting the validity of the
devise (x).
Until the decree for revivor(y) has been pronounced,
the supplemental suit is a distinct suit from the abated
nit, and will be conducted in the same way as any
other uit.
o a b o re or. Thus n oods . oods t where . Mere a
the pant ed a suppementa b n the nature o a
b o re or aganst the de see o a de endant and
n t stated se era passages rom the de endant s
answer and ounded charges upon them t was hed
that these statements and charges were not mpert-
nent because he mght certan ha e made them
as aganst the orgna de endant b amend nent o the
orgna b and as the de sees are not caed upon to
ans er the orgna b and ha e no o ce copes o t
there s no other wa o amendng as aganst them than
b ntroducng the amendments nto the suppementa
b. n ths case t s apprehended that the new b
ought to be ed aganst a the de endants aganst
whom the oro-na b woud ha e been amended.
th regard to the partes to the b n ueston Partes.
a the pant s there were more than one must
or the same reasons as were g en n the case o a
smpe b o re or be made partes to a suppe-
menta b n the nature o a b o re or ether as
co-pant s or as de endants but o the de endants
on the de see o the orgna de endant need be
made a part to the new b the other de endants not
beng a tected b the abatement and de se u .
The her at aw o the de sor must aso be brought
be ore the ourt b the new b n order that he ma
ha e an opportunt o dsputng the adt o the
de se .r .
nt the decree or re or has been pronounced
the suppementa sut s a dstnct sut rom the abated
sut and w be conducted n the same wa as an
other sut.
0 1 39 10 m. 197. or the orm o a decree or
m 3 tk. 217. re or see the ppead o.
1 . a. b. 2. .
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Origin Ifrom
DIgIt!zed by
(z) Hue! v. Say and sa 1725, 2E. Ca. Ab. 3 j Sel. Ca. Ch. 53.
III. Where a III. If the devisor was a co-plaintiff, the remaining
~~;i~;:~ntiff co-plaintiffs either join with the devisee in reviving
'--- __ ---, the suit, or bring 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 thecase of a soleplaintiff; 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 wehave
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
DDeviseis after suit all parties, both plaintiffs and defendants, are C Ol1-
ecree.
'-v----' siderecl 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, which 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 fromthe abatement, and not
putting the case in issue over again; in other 'words,
by asuppl emental bill inthenature of abill of revi vor;
and that he must make all the parties to the decree
] arties to his bill.
Of Reoioor by Supplemental Suit and Decree. 136
136 e or h uppementa ut and Decree.
. here a . the de sor was a co-pant the remanng
o-Pant co-pant s ether on wth the de see n re ne:
de ses. . .
the sut or b-ng- hm be ore the ourt as a de en-
dant. n the rst case t s apprehended the must
a on n brngng an orgna b n the nature o a
b o re or as n the case o a soe pant n the
atter case the sur ng co-pant s proceed as the
de sor had been a de endant.
here one o two pant s de sed to hs co-pan-
t and aso made hm e ecutor the atter was
ordered to brng a b o re or as e ecutor and aso
an orgna b n the nature o a b o re or as
de see . s howe er an e ecutor ma as we ha e
be ore seen brng a new orgna b nstead o a b
o re or he pre ers t t s apprehended that the
orgna b n the nature o a b o re or woud
ha e been su cent to ad ance hs cam n both
capactes athough the smpe b o re or woud
not ha e done so e cept n hs capact o e ecutor.
. here the . e ha e aread seen that a ter a decree n a
Dece sut a artes both pant s and de endants are con-
- sdered n the ght o pant s. there ore the
abatement accompaned b the de se takes pace
a ter decree and a de endant wshes to re e the sut
aganst the de see hch we ha e seen he ma do
a ter decree t s apprehended that he must ke an
other pant brng the de see be ore the ourt b
a b contnung the sut rom the abatement and not
puttng the case n ssue o er agan n other words
b a suppementa b n the nature o a b o re or
and that he must make a the partes to the decree
partes to hs b.
r uet . a and ee 1725 2 . a. b. 3 e. a. h. 53.
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Original from
Dioitize by
vivethat order, because the consent
bad determined by the marriage.
Hampden v. Brewer, 1666, 1C. C.
7 7 .
Ca) "\\ here, however, the abate-
ment arose from the marriage of an
executrix who had been a party to
an order by consent, the revivor
was h J I on demurrer, not to re-
T H E abated uit having been revived either by an Effects of
Order obtained on a simple bill of revivor, as in the !~v~~~~~l
ca'e of the intere t devolving on the heir or executor, Suit.
or by a Decree obtained in a supplemental suit, as ~
where the intere t has devol ved 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 he taken.
I .As a general rule the revivor of a suit has the 1. On exi ting
effect of reviving all the proceedings in that suit, and proceedings.
placing them in the same plig'ht 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 proceeding in a suit such time ceased to time allo\~ed
, for any thine,
run upon an abatement occurring. Upon revivor of '"
the uit, 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
OF THE REVIVED SUIT.
CHAPTER IX.
137
137
PT .
T D T.
The abated sut a ng een re ed ether b an ects o
rder obtaned on a smpe b o re or as n the thror gha
case o the nterest de o ng on the her or e ecutor ut-
or b a Decree obtaned n a suppementa sut as
-where the nterest has de o ed on a de see we w
now proceed to n ure what e ects the e or pro-
duces upon the orgna sut and the proceedngs
whch ha e been had n t.
ter ths we w consder what urther proceed-
ngs ma be taken n the sut a ter t has been re-
ed and n what manner and under what condtons
the must be taken.
. s a genera rue the re or o a sut has the . n e stng
e ect o re ng a the proceedngs n that sut and P ss-
pacng them n the same pght and condton as the
were n be ore the abatement a .
Thus we ha e seen that where a mted tme was n a mted
aowed or proceedno n a sut such tme ceased to aowed
o _ _ or an thng.
run upon an abatement occurrng. pon re or o
the sut howe er the tme w begn to run agan as
rom the perod when the abatement occurred.
here there ore a de endant had obtaned orders
or tme to answer and one o the pant s ded and
c here howe er the abate- e that order because the consent
ment arose rom the marrage o an bad determned b the marrage
e ecutr who had been a part to ampden . rewer G 1 . .
an order b consent the re or 77.
was hed on demurrer not to re-
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n In I rn
DI itized by
(0) Fallowesv. Williamson,1805, (c) Wakelyn v. Wathill, 1679,
11Yes. 306, 312. Dick. 13.
On processof
contempt.
Effects of the suit was revived, and the defendant applied in the
Revivor on e ders f EI'd
the Original revived suit 101' new or ers lor time, Lord don sal ;
~ "It would bevery 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 (b)." 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 of theplaintiff, the process will
be revived with the revivor of the suit; andareceiver
may be appointed in the revived cause on the order
OJ the Revived Suit, 138
13
the e ed ut.
ects o
e or on
the rgna
ut.
n process o
contempt.
the sut was re ed and the de endant apped n the
re ed sut or new orders or tme ord don sad
t oud be er e traordnar where process aganst
the de endant up to the er pont o custod re-
maned upon the record that the conse uence o the
death o one pant the sut not abatng as to the
other shoud be that the de endants though the same
dentca persons are to ha e a the orders or tme
the orgna had and that e en the sur or . e.
the sur ng pant cannot ha e the process o the
ourt unt a the same course o tme has run out.
The practce cannot possb be that where the de en-
dant has had a the tme to whch he was entted
and has got nto contempt the death o one pant
purges the contempt as to a the other pant s and
g es a rght to a the orders or tme agan . t
s apprehended that near the same reasonng woud
app to the case o abatement b the death o a soe
pant or no abatement can be a good reason or
g ng a de endant more tme to answer to sa no-
thng o the e tra tme durng whch the abatement
asted than he was thought entted to be ore.
the de endant s tme or answerng the orgna
b has e pred be ore the abatement the re or does
not g e hm an resh power o makng a de ence to
the orgna b c .
here process o contempt to an order or a er-
eant at rms has ssued be ore the abatement t w
abate wth the sut. howe er the abatement has
occurred b the death o the pant the process w
be re ed wth the re or o the sut and a rece er
ma be apponted n the re ed cause on the order
b ao es . amson 05
es. 30G 312.
c T aep . at h 1679
Dck. 13.
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Original from
Digitized b
1 Yes. sen. 1 O.
(f) White v. Hayward, 1752,
2 Ve . sen. 461.
(d) Ball v.Going, 1826, 1Hogan,
396.
(e) Hyde v. Forster, 1748, Dick.
132; Wharam v. Brouptuon, 1748,
for a rjeant at arms in the original cau e Cd). And Effects of
it 1 apprehended that, in analogy with the ca e of ~~v~~i~~:al
eque trators and receivers app inted on proces ,next Suit.
considered, the proce , although it ought to cea e "-..----'
immediately upon the abatement occurring, will never-
thele s 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, again t whom the proce
has i sued, who dies, the proce s will not be revived
again thi executor, with the revivor of the suit.
A eque tration against a defendant, whether it be On sequestra-
a eque tration upon mesne proce ,or a elue tration.
tion to compel performance of a decree, abate, like
other proceedings, with the abatement of the uit;
and thi 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 i the
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, turn the
eque trators out of pos ession, but will allow a rea-
sonable time for the suit to berevi ved, and the eques-
tration thereby continued (f).
But if it is the party against whom the seque tra-
tion ha isued, who has died, then the rule seem to
be different as to sequestration upon mesne process,
from what it is as to sequestrations to compelperfor-
mance of decrees. In the former case the proce ,
being per .onal, die with the party against whom it
139 Of the Revived Suit.
the e ed ut. 139
or a er eant at arms n the orgna cause d . nd ects o
t s apprehended that n anaog wth the cases o thr rghTa
se uestrators and rece ers apponted on process ne t ut.
consdered the process athough t ought to cease
mmedate upon the abatement occurrng w ne er-
theess be kept on oot and that a reasonabe tme
w be aowed to the representat e to re e the
sut and thereb sa e the process rom e tncton.
ut t s apprehended that n anaog wth the same
cases t s the de endant aganst whom the process
has ssued who des the process w not be re ed
aganst hs e ecutor wth the re or o the sut.
se uestraton aganst a de endant whether t be n se uestra-
a se uestraton upon mesne process or a se uestra-
ton to compe per ormance o a decree abates ke
other proceedngs wth the abatement o the sut
and ths e ua whether the abatement be caused b
the death o the part ssung the se uestraton or
the part aganst whom t s ssued. t s te
part ssung t who has ded the se uestraton s
re ed wth the re or o the sut e and the ourt
w not mmedate upon the abatement urn the
se uestrators out o possesson but w aow a rea-
sonabe tme or the sut to be re ed and the se ues-
traton thereb contnued / .
ut t s the part aganst whom the se uestra-
ton has ssued who has ded then the rue seems to
be d erent as to se uestratons upon mesne rocess
rom what t s as to se uestratons to conpe per or-
mance o decrees. n the ormer case the process
beng persona des wth the part aganst whom t
d a// .Go 5 1 26 ogan 1 es. sen. 1 0.
396_ / hte . a ward 1752
e de . orster 174 Dck. 2 es. sen. 461.
2 haram . roughton 174
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n In I n
DI itized b
Bland, 1675, 3 Swan. 2i6; Caer-
marthen v. Hawson, 1731,3Swan.
294.
(I) Derby v. Anc,am, no date,
cited 2 C. C. 46; Burdett v. Rock-
ley, ubi supra j Hyde v. Greenhill,
ubi supra.
(m) AtllOllv. Derby, 1672,1 C.
C.220.
(n) For. Rom. 6.
(0) 1 Ve . s fl. ] 5.
(g) Burdett v. Rockley, 1682,
1 Vern. 58; Hawkins v. Crook,
1747,3 Atk. 594.
(h) The same cases, and Bligh
v. Darnley, 1731, 2 P. W. 621 ;
Hyde v. Greenhill, 1746, Dick.
106; and Whararn v. Broucluon,
174 , 1 Yes. sen, 180.
(i) The same ca es.
(k) [:niv. Coli. v. Foa;crojt,16 2,
2 C. R. 244 ; sed xide TVilham v,
Effects of has issued, and cannot be revived (9); but in the
Revivor on I h . 11b . d . h I
the Original atter case t e sequestration WI e revi ve WIt t re
Suit. revivor of the suit and of the decree (lz). If the de-
'-v-----Jcree 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 (l); 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, &c.,
and that when you have revived against the heir and
executor, you may also revive the sequestration upon
motion, if upon coming into Court, they can shew no
cau ewhy the decree should not be revived (n).' 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 (0)
of Lord Hardwick e in Wltaram v. Brouqhton, that no
OJ the Revived Suit. 140
140 the e ed ut.
ects o has ssued and cannot be re ed g but n the
thr r ha tter case the se uestraton be re ed wth the
ut. re or o the sut and o the decree . the de-
cree was or a persona demand the decree and con-
se uent the se uestraton can on be re ed
aganst the persona representat e e en though
the decree were on beha o a hart k but the
decree was or a demand a ectng the rea estate o
the deceased part the decree and conse uent the
se uestraton must be re ed aganst the her as we
as the persona representat e uness ndeed the
rea estate has gone o er to some part camng b a
tte ndependent o the deceased de endant n whch
case t w o course be dscharged rom the se ues-
traton m .
n Gbert s orum omanum t s sad that the
decree be upon a co enant whch bnds the her and
the de endant des such decree ma be re ed ee
and that when ou ha e re ed aganst the her and
e ecutor ou ma aso re e the se uestraton wn
moton upon comng nto ourt the can shew no
cause h the decree shoud not be re ed w . rom
ths t woud appear that when the de endant n con-
tempt des the pant must not on re e the
sut but aso obtan an order on moton to re e the
se uestraton. t appears howe er rom the words o
o ord ardwcke n haram . roughton that no
g urdett . ocke t 2 and 1675 3 wan. 270 aer-
1 ern. 5 awkns . rook mart/ten . a sot 17 6 3 an.
1747 3 tk. 594. 294.
h The same cases and h Derb . ncram no date
. Darne 1731 2 . . 621 cted 2 . . 46 urdett . ock-
de . Greenh 1746 Dck e u supra de m. Greenh
G and haram . roughton nh supra.
174 1 es. sen. 1 0. m tho . Derb 1672 1 .
The same cases. . 220.
k n . u. . o cro/t 16 2 n or. om. .
2 . . 244 scd de tham . o 1 es. sen. 1 5.
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Original from
Digitized by
18; Reg. Lib. A. 1 30, fo1. 3; sed
'vide a doubt in Byne v. Potter,
1800, ;) Ve . 305.
( ) 1Smith, Ch. Pro 403.
(t) Byrle v. Potter, ubi supra.
(p) TJTood v. Creaylte, 1 24, 1
Hogan, 174.
(q) Bray v. Woodran, 1821, 6
Madd.72.
(r) Cockburn v. Raphael, 4 Sim.
uch tep is necessary; but that the mere revivor of Effects of
the suit against the heir and executor will be sufficient RtheviOvo.r ? U 1
e ngtna
to revive the sequestration for enforcing the decree. Suit.
A receiver appointed upon process against a defen- o~
n a receiver-
dant will be dismissed upon an abatement. If, how- ship appointed
ever, the abatement is caused by the death of a plain- on process.
tiff, the receiver will not be dismissed immediately,
but a reasonable time will be allowed for reviving the
uit and thereby revi ving the receivership. But if the
abatement is caused by the death of the defendant,
the receiver will be dismissed at once, because a
ub equent revivor against the defendant's repre-
entative would not have the effect of reviving the
receivership (p).
When subpcenas to hear judgment have been served, On subl~renas
and the snit abates, the subpcenas will also abate. If ~e~~~r judg-
however the suit abates by the death of a plaintiff, the
defendants remaining the same, the original subpcenas
will be revived with the revivor of the suit (q). But
if the suit abates by the death of a defendant, the sub-
pcena served on that defendant will not be revived with
the revivor of the suit ('1'), but a new subpcena must be
served on his representative. The subpcenas served
on the other defendants, however, will of cours be
good (s), the suit having never abated as to them.
When an appeal abates in the House of Lord , the
order for revivor i obtained as of course, and a fresh
ummons i. unnecessary (t).
We hav e een that an injunction, not being a per- <?n injunc-
1
... d b f' b '11 tions,
petua injunction, grante erore a atement, WI na-
turally drop upon the abatement taking place. I t
141 Of the Reciced S tit.
the e ed ut. 141
such step s necessar but that the mere re or o ects o
the sut as anst the her and e ecutor w be su cent : .
_ _ the rgna
to re e te se uestraton or en orcng the decree. ut.
rece er apponted upon process ao-anst a de en- .
/. . TP 1 n a rece er-
dant w be dsmssed upon an abatement. how- shp ap onted
e er the abatement s caused b the death o a pan- Process.
t the rece er w not be dsmssed mmedate
but a reasonabe tme w be aowed or re ng the
sut and thereb re ng the rece ershp. ut the
abatement s caused b the death o the de endant
the rece er w be dsmssed at once because a
subse uent re or aganst the de endant s repre-
sentat e M oud not ha e the e ect o re ng the
rece ershp 9 .
hen subpoenas to hear udgment ha e been ser ed. n subpoenas
and the sut abates the subpoenas w aso abate. ment
howe er the sut abates b the death o a pant the
de endants remanng the same the orgna subpoenas
w be re ed wth te re or o the sut /2 . ut
the sut abates b the death o rt de endant the sub-
poena ser ed on that de endant w not be re ed wth
the re or o the sut 7 but a new subpoena must be
ser ed on hs representat e. The subpoenas ser ed
on the other de endants howe er w o course be
good s the sut ha ng ne er abated as to them.
hen an appea abates n the ouse o ords the
order or re or s obtaned as o course and a resh
summons s unnecessar 0-
e ha e seen that an n uncton not beng a per- n n unc-
petua n uncton granted be ore abatement w na-
tura drop upon the abatement takng pace. t
p oods . rea he 1 24 1 13 eg. b. . 1 30 o. 3 sed
ogan 174. de a doubt n ne . Potter
ra . oodran 1 21. 6 1 00 5 es. 305.
Madd. 72. 1 mth h. Pr. 403.
r ockburn . aphae m. / ne . Po e uh supra.
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On In I
U N IV E R S IT Y OF C A . L IF OR N IA
I rtized by
(x) Mickletlnoaite v. Calverley,
1735, Ca. temp. Talbot, 3.
(y) Samuda v. Furtado, 1790,
3 Bro. C. C. 70.
(u) Stuart v. Ancell, 1787,1 Cox,
411, where the time given is said
to be aweek generally; vide etiam,
1Hare, 622.
Effects of will however be revived with the revivor of the suit;
~~V ~~rgfn:l and where the abatement is caused by the death of a
Suit. sale plaintiff, the Court will, before it permits the in-
'-v----Ijunction to drop, give the representatives of the de-
ceased plaintiff notice that the inj unction will be dis-
solved unless the suit is revived in a given time (u).
On a defence In general the representative of a deceased defen-
already put in. dant is bound by the defence put in by such deceased
person to the original bill, the 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 acase 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 ascirefacias 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 Equity 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 (y).
Onan 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,
Of the Revived Suit. 142
142
the e ed ut.
ects o w howe er be re ed wth the re or o the sut
e or on where the abatement s caused b the death o a
the rgna
ut. soe pant the ourt w be ore t permts the n-
uncton to drop g e the representat es o the de-
ceased pant notce that the n uncton w be ds-
so ed uness the sut s re ed n a g en tme m .
n a de ence n genera the representat e o a deceased de en-
aread putn. g - g bound b the de ence put n b such deceased
person to the orgna b te e ect o the re or o
the sut beng to re e that de ence aso but there s
an e cepton to ths rue n the case o a de endant
ha ng put n a pea to the orgna b and d ng
be ore the pea s argued. n a case where ths oc-
curred and a ter the sut had been re ed the pea
came on to be argued the ourt re used to hear t and
ordered the representat e to pead de no o .
The reason g en or ths n the note to the abo e
case s that the representat e ma ha e a pea to
de end hm wthout den ng the merts o the case.
or an e ecutor or admnstrator can tru pead
pene admnstra t on a scre acas at aw whch must
awa s ssue n such case the e ecuton can on be de
bons testators uando accdernt. ut the answer o a
testator n a ourt o cpt w bnd an e ecutor
who has assets.
howe er the pea has been argued and o errued
be ore the abatement the new de endant cannot a ter
re or pead the same pea o er agan / .
n an appea. an appea s pendng n the ouse o ords and
the ouse reser es udgment on a certan pont unt
an account s taken and a ter the account s taken.
tuart nce 7 7 1 o a Mcketkwate . a ere
411 where the tme g en s sad 1735 a. temp. Tabot 3.
to be a -eek genera de etam amuda . urtado 1790
1 are 622. 3 ro. . . 70.
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Original from
Digitized by
abandoned. Warner v. Armstronq,
1831,4 im, 140; Lewis v. Al'm-
tronq, 1 34, 3My!. & K. 69.
(b) Lloyd v. Powi , 1671, Dick.
16.
(c) Durbanie v. KnigM, 16 5, 1
Vern. 31 .
(c) Lake vs Mason, 1746, 5 Bro.
P. C. 27 ,2 O.
(a) 1 31, 4 im.4 3. "here,
however, aplaintiff gavenotice of a
motion, and died before it was
made, and his executors revived,
the Court refu ed to give the de-
fendants the costs as of a motion
but before the appeal i brought on again, the suit Effe?ts of
b
. fl' b 1 '11h h C!' Revivor on
a ate a revivor 0 t re uit e owWI ave t e effect the Original
of reviving the appeal al 0(z). Suit.
As to the costs of that part of the suit which took o'--..----'t f th
n cos so e
place before the abatement, it appear that when the original suit.
decree gives the co t against the repre entative of the
deceased party, he i liable to the co t of the decea ed
party as well as to his own cost ; but that when the
decree gives the co ts in favour of the repre entative of
the decea ed party, he is entitled to the co ts of such
proceeding only as have been had since the revivor.
Thu in 'l'roward v. Bingh.am (a) ir Lancelot had-
well V. C., said, "that if the executor of a decea ed
I laintiff did not adopt the original uit, he wa not
liable to the cost - thereof; , thereby, it i apprehended
implying, that were he to adopt hi te tator' uit, he
would be liable to the co ts thereof.
But where a plaintiff revived a snit ag'ainst the heir
of a deceased defendant, and the bill was afterward
di mis ed with cost, it wa held that the heir should
not have the co t of his father before the revi VOl', be-
cause they died with the per on(b).
It i true that in another ca e(c), where a female
plaintiff married pendente lite, and the hu band and
wife revived, and obtained a decree with co t , they
were held entitled to the co ts of the whole suit, (ex-
cepting onl the bill of revivor), and not co t from
the revivor only. But the reason of thi di crepancy
appear to be that in the ca e of abatement by death
143 Of the Revived Suit.
the e ed ut. 143
but be ore the appea s brought on agan the sut ects o
abates a re or o the sut beow w ha e the e ect th r gna
o re ng the appea aso 2 . -
s to the costs o that part o the sut whch took ncosts o the
pace be ore the abatement t appears that when the orgna sut.
decree g es the costs aganst the representat e o the
deceased part he s abe to the costs o the deceased
part as we as to hs own costs but that when the
decree g es the costs 7 a our o the representat e o
the deceased part he s entted to the costs o such
proceedngs on as ha e been had snce the re or.
Thus n Troward . ngham a r anceot had-
we . sad that the e ecutor o a deceased
pant dd not adopt the orgna sut he was not
abe to the costs thereo thereb t s apprehended
mp ng that were he to adopt hs testator s sut he
woud be abe to the costs thereo .
ut where a pant re ed a sut aganst the her
o a deceased de endant and the b was a terwards
dsmssed wth costs t was hed that the her shoud
not ha e the costs o hs ather be ore the re or be-
cause the ded wth the person .
t s true that n another case c where a emae
pant marred pendente te and the husband and
w e re ed and obtaned a decree wth costs the
were hed entted to the costs o the whoe sut e -
ceptng on the b o re or and not costs rom
the re or on . ut the reason o ths dscrepanc
appears to be that n the case o abatement b death
c ake . Mason 1746 5 ro. abandoned. arner . rmstrong
P. . 27 2 0. 1 31 4 m. 140 ews . rm-
a 1 31 4 m. 4 3. here strong 1 34 3 M . . 69.
howe er a pant ga e notce o a b o d . Pows 1671 Dck.
moton and ded be ore t was 16.
made and hs e ecutors re ed c Durbane . nght 16 5 1
the ourt re used to g e the de- ern. 31 .
endants the costs as o a moton
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p
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rI In fro
DI mzed b
(d) Betafl/t v. Concannon, 1836,1L. & G. t. Plunk. 355.
Effects of the party causing the abatement was no longer before
Revivor on
the Original the Court, but that in the case of abatement by mar-
~ rioqe such party continued to be a party to the suit
notwithstanding the abatement.
And where a plaintiff had obtained orders for costs
against 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 Cd).
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 inadv ertently taken after
erroneously 1.' 1 I" ff b
bad after the an abatement, before t ie p ainti ecomes aware of
abatement the abatement. As the effect of an order or decree
but before
the revivor. for revivor is merely to put the suit in the same con-
dition as it was in at the time of the abatement, it i
obvious that the plaintiff does not obtain by such order
or decree the benefit of the proceedings taken subse-
quently to the abatement. Itis conceived that in thi
case he ought, in his new bill, to state the proceedings
ubsequent to the abatement, as supplemental matter,
and pray, besides revivor, that he may have the same
benefit of tho e proceedings as he would have had if
Of the Revived Suit.
144
144 the e ed ut.
ects o the art. causng the abatement was no onger be ore
thTorghTa c ourt but that n te case o abatement b mar-
ut. rage such part contnued to be a part to the sut
notwthstandng the abatement.
nd where a pant had obtaned orders or costs
aaanst the rece er n the cause and ded and the
sut was re ed b a credtor aganst the e ecutor o
the pant t was hed that the e ecutor was entted
to the costs the reason g en beng that the rece er
was an o cer o the ourt. n ths case too t must
be obser ed that the orders or costs had been made
be ore the pant s death .
The genera rues howe er abo e g en as to the
costs do not app to the case o an abatement occur-
rng a ter the decree g ng the costs has been pro-
nounced. n such case the ate o the costs ha ng
been decded be ore the abatement cannot be atered
b the abatement and accordng we ha e aread
seen that t becomes necessar to re e an matera
part o the decree that part o t whch ga e the costs
w be re ed wth the rest o t.
n proceedngs ometmes proceedngs are nad ertent taken a ter
rhe n abatement be ore the pant becomes aware o
abatement the abatement. s the e ect o an order or decree
t he T h or. or re or s mere to put the sut n the same con-
dton as t was n at the tme o the abatement t s
ob ous that the pant does not obtan b such order
or decree the bene t o the proceedngs taken subse-
uent to the abatement. t s conce ed that n ths
case he ought n hs new b to state the proceedngs
subse uent to the abatement as suppementa matter
and pra besdes re or that he ma ha e the same
bene t o those proceedngs as he woud ha e had
r etagh . oncannon 1 . G. t. Punk. 355.
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145
Original frcrn
Diginzed b'
(e) Philips v. Dm'vie, ] 745, (f) Vide Wood v. Woodsl183!),
Dick.9 ; Ld. Red. ed. 4, I. 7. 10 im, 197.
L
the suit had been previously revived. And if the de- Effects of
fendant consents, or perhaps without consent if it RtheVlo'vo:?n 1
e rigtna
seems rea onable, it is presumed that a decree to that Suit.
effect will be mad . ~
I I .We will now consider the further proceedings in II. On further
the revived uit. proceedings.
Where the abatement is caused by the death of a Amendment.
sole plaintiff, and his representative becomes the 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 wa held en-
titled to is ue an attachment again t the defendant
for not an wering the amended bill (e). Where how-
ever it i a defendant who has died, it appear. that
the original plaintiff I nU t, if he wi hes to amend,
bring forward his amended statements in the new bill
and not in the original biII, because the new defen-
dant ha. 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 neI V bill.
After revivor, if evidence is gone into with respect Interroga-
to the revived suit, it appear that the plaintiff' in- tories.
terrogatories ought strictly to be intituled in both
suits, namely, the original .uit and the suit for re-
vivor. But it seem to be not ab ol utely irregular
to intitule them in the revived suit; that is, in the
suit, such a it tand after the abatement and revivor
have taken place.
Thu where a bill wa filed by a plaintiff, J ones,
again t two defendant, Smith and Turner, and on
mith' death the nit was revived agains t Smith the
younger, and a commi ion i , ued for the examillation
the e ed ut. 145
te sut had been pre ous re ed. nd the de- ects o
endant consents or perhaps wthout consent t 11
. . the rgna
seems reasonabe t s presumed that a decree to that ut.
e ect w be made.
. e w now consder the urther proceedngs n . n urther
the re ed sut. proceedngs.
here the abatement s caused b the death o a mendment.
soe pant and hs representat e becomes te new
pant he ma take the same proceedngs n the cause
as the orgna pant mght ha e done. Thus the
new pant ma amend the orgna b and n a
case where the new pant dd so he was hed en-
tted to ssue an attachment aganst the de endant
or not answerng the amended b e . here how-
e er t s a de endant who has ded t appears that
the orgna pant must he wshes to amend
brng orward hs amended statements n the new b
and not n the orgna b because the new de en-
dant has no cop o the orgna b and n ths
case t s apprehended that he must make a the
orgna de endants partes to the new b.
ter re or e dence s gone nto wth respect nterroga-
to the re ed sut t appears that the pant s n- -
terrogatores ought strct to be nttued n both
suts name the orgna sut and the sut or re-
or. ut t seems to be not absoute rreguar
to nttue them n the re ed sut that s n the
sut such as t stands a ter the abatement and re or
ha e taken pace.
Thus where a b was ed b a pant ones
aganst two de endants. mth and Turner and on
mth s death the sut was re ed aganst mth the
ounger and a commsson ssued or the e amnaton
e Phps . arbe 4r de oods . oods 3
Dck. 9 d. ed. ed. 1 p. 7 . 10 m. 197.
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rlgln I from
DI rtized b
(9) Jones v. Smith, 1842, 6 J uri t, 107 .
of witne se , intituled "in a cause wherein Hugh
.J ones is plaintiff, and Thomas As,heton Smith (since
deceased) and William Turner are defendants, by ori-
ginal bill, and wherein the said Hugh J ones is plain-
tiff, 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
J ones is plaintiff, and Thomas Assheton Smith and
William Turner are defendants,' Sir J . L. Knight
Bruce, V. C., refused amotion 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 inthe 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
that 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 interest had severed and ve ted
in other persons,') or if the abatement had occurred
after adecree 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 defendant have joined with the new
defendants in the commission to examinewitne ses, or
have con ented to the order for such commi sion, the
interrogatorie and deposition must be intituled in
Effects of
Revivor on
the Original
Suit.
"--v-----'
146
146 the e ed ut.
tectso o wtnesses nttued n a cause wheren ug
throrgna ones s pant t and Thomas ssheton mth snce
ut. deceased and am Turner are de endants b or-
gna b and wheren the sad ugh ones s phn-
t and Thomas ssheton mth the ounger s de-
endant b b o re or and the pant s nter-
rogatores were nttued n a cause wheren ugh
ones s pant and Thomas ssheton mth and
am Turner are de endants r . . nght
ruce . re used a moton to suppress those de-
postons or rreguart on the ground o ther d -
erng n tte rom the commsson obser ng that
there was no substanta d erence between the ttes
and no substanta naccurac n the atter tte that
the orgna and re ed sut consttuted but one and
the same cause athough there were two bs n the
cause and that the cause s snge t cannot be
necessar to menton the purat o the bs n the
tte to the nterrogatores. s onor howe er added
tat he was not entre ree rom doubt on the pont
and ntmated that the case mght be d erent the
abatement had occurred b the death o a pant or
the marrage o a emae pant especa on the
death o a pant hs nteest had se ered and ested
n other persons or the abatement had occurred
a ter a decree n the sut g .
the nterrogatores are e hbted b de endants to
the orgna b who are no partes to the re or sut
the ma be nttued n the orgna cause on .
howe er such de endants ha e oned wth the new
de endants n the commsson to e amne wtnesses or
ha e consented to the order or such commsson the
nterrogatores and depostons must be nttued n
d/ ones . m/ 1 42 G urst 107 .
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Original from
Digiti zed by
(k) Burnev v. Morgan, 123, 1
S. CO ,35.
(Z) Harries v. Jolm on, 139, 3
y,c Coll. Ex. Eq. 583.
L2
(I t ) Prit chard v, Foulkes, 1~39,
2Beav 133,
(i) Onge v. T,'uelock, 1828, 2
::\1011, 31,38.
both uits, following the title of the COll1lTIl 1011, 01' Effects of
} 'II b d h) Revivor on
t ley Wl e uppre, e ( . the Original
If th interrogatories are exhibited by the new de- Suit,
fendant alone, it i aI prehended that they ought to be '-..----I
intituled in both suits.
Where in the title of the interrogatorie abill, which
wa in fact a bill of revivor only, was called a ,U pple-
mental bill, the plaintiff wa held not entitled to read
the depo itions taken under such interrogatories ; but
he wa not ordered to pay the co ts of such depositions
until it hould appear whether use could be made of
them in taking the account before the Ma tel' (i).
The revived suit will be carried on to a decree and Decree, &c.
snb equent proceeding, in the same manner a any
uit which ha not abated.
Where a uit i revived after decree, if the revived Any party may
. . d 1 . h b h ' , prosecute the
suit 1not procee ec WIt y t e party revivmg, any revived suit
other party, who might have pro ecuted 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).
I t has been said, however, that if the abatement QUaJ 1'ewhether
1 f d
hi h' if therevived
lappens a tel' a ecree W IC contams some specl csuit must be
direction, (as that the defendant ball pay a certain set ~own for
f
b
b
1:' 1 'fi di , h hearing, be-
sum 0 money,) ut erore t rat peci c irection as cause a specific
been complied with, such decree cannot becarried into d~e?tion in the
, " original decree
effect by the mere order to revive, but the revn ed uit has not been
mu t be et down for hearing in order to have a fre h complied with?
decree re pecting such matter as is left unperformed (l).
I ti apprehended however that this i~not the practice
in the ourt of Chancel' , although it may have been
so in th Court of Exchequer.
1-17
OJ t he Revived uit ,
the e ed ut. 147
both suts oowng- the tte o the commsson or ects o
the w be suppressed h . or hTa
the nterrogatores are e hbted b the new de- ut
endant aone t s apprehended that the ought to be
nttued n both suts.
here n the tte o the nterrogatores a b whch
was n act a b o re or on was caed a suppe-
menta b the pant was hed not entted to read
the depostons taken under such nterrogatores but
he was not ordered to pa the costs o such depostons
unt t shoud appear whether use coud be made o
them n takng the account be ore the Master
The re ed sut w be carred on to a decree and Decree c.
subse uent proceedngs n the same manner as an
sut whch has not abated.
here a sut s re ed a ter decree the re ed n part ma
... 1 - 1. -1 . prosecute the
sut s not proceeded wth b the part re ng an re ed sut
other part who mght ha e prosecuted the decree a ter decree
no abatement had occurred s at bert to proceed
wth t upon the re or obtaned b the ormer
part k .
t has been sad howe er that the abatement -e whether
happens a ter a decree whch contans some spec c g .
drecton as that the de endant sha pa a certan set down or
sum o mone but be ore that spec c drecton has cause a spec c
been comped wth such decree cannot be carred nto drecton n the
-11 1 . orgna decree
erect b the mere order to re e but the re ed sut has not been
must be set down or hearng n order to ha e a resh comphed wth .-
decree respectng such matter as s e t unper ormed .
t s apprehended howe er that ths s not the practce
n the ourt o hancer athough t ma ha e been
so n the ourt o che uer.
h Prtchard . oukes 1 39 k urnc . Morgan 1 23 1
2 ea . 133. . . 35 .
n e . Trueock 1 2 2 / arres . ohnson 1 39 3
Mo. 31 3 . . o. . . 5 3.
2
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p
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n In I
I rtize b
riginal bill
in the nature
of a supple-
mental bill.
Death of a IT has been stated that where a party dies, and his
Corporation 1 bi f h .
Sole. interest in t re su ject matter 0 t e suit does not sur-
'--_,-' vive his death, but the property, instead of devolving
on aperson 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 by the old and new parties being the same, the
proceedings in the new suit will necessarily be more
or Ie s 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.
CHAPTER X.
148
14
PT .
T T T T P T D T
P T .
Death o a
orporaton
oe.
.
rgna b
n the nature
o a suppe-
menta b.
t has been stated that where a part des and hs
nterest n the sub ect matter o the sut does not sur-
e hs death but the propert nstead o de o ng
on a erson camng- under hm goes o er to a stranger
camng b an ndependent or coatera tte the m-
per ecton whch has taken pace n the sut s rreme-
dabe. or there s no pr t between the person who
ate represented the nterest n ueston and the
person who now represents t so as ether to entte the
atter to the bene ts or to render hm ust sub ect
to the abtes o the orgna sut. The sut there-
ore strct speakng s absoute termnated wth
respect to the deceased part and can no onger
be proceeded wth.
uch s the case o a ector shop or other or-
poraton soe sung or sued n respect o hs pre er-
ment and d ng whe the sut s pendng the on
redress whch can be had b or aganst the new rector
or bshop must be obtaned b ng an entre new
b and commencng de no o.
s howe er n conse uence o the nterests repre-
sented 1 the od and new partes beng the same the
proceedngs n the new sut w necessar be more
or ess dentca wth those whch ha e aread taken
pace n the ormer sut and t s desrabe to sa e the
e pense and dea o repeatng them the pant ma
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Original from
DI Q rti'E ' bv
(a) 1842, 6 J uri t, 1032; Vide etiam S. C. 2 Hare, 81.
if he plea e , in tead of making the new bill wh lIy Death of a
"I ' he f 'd 1 h' bill Corporation
orlglllGl , notice t e 10r111e1'uit, an pray t rat 1. 1 ole,
may be taken a Ul plemental to the first bill, and "-..---J
that he lllay haxe the benefit of the proceeding in the
former nit. A bill filed with this object is called an
original bill in th nature of a supplemental bill.
The bill in que tion being filed for the pUl'}0 e of F,ormof the
, , , I h f: f h ro li f I un.
put trn . 1n 1 u, not 0n y t e actot e n 1n . 0 the
original bill, but al 0 the statements in that original
bill, ought properly to repeat those statements, though
it more u ual1y evades this by s tting out the original
bill at length, and averring that the contents of it are
true. The Court however eem ometimes to have
been content with even Ie than thi , and to have
perrnitt d the original facts to be I ut in issue in a very
qu tionable manner, and even to have dispensed with
their being put in i sue at all, thus allowing a supple-
mental proceeding to have the effect of an original one
for this purpo e.
Thus in The Attornef-General v. Poster (a), where a
supplemental information was filed against partie',
again t whom it was held that an original information
in the nature of a upplemental information ought to
have been filed; that i ,against whom the ca e ought
to have been put in i ue oyer again; Sir J ames Wi-
gram, V. C., held that the case was sufficiently put in
i ue by the SUI plemental information to enable the
new parti to enter into the merit of the original
ca e. In thi ca ethe upplemental information merely
tated the filing of "an original information, tating
and charging a therein was tated and charged, and
praying &c.," etting forth the whole pra) er. Al-
thongh thi wa allowed to have the effect of an
original information in the nature of a upplemental
Of the e sation of Intere t upon the Deatk of a Party, 149
the essaton o nterest upon the Death o a Part . 149
he peases nstead o makng the new b who Death o a
orgna notce the ormer sut and pra that hs b e
ma be taken as suppementa to the rst b and
that he ma ha e the bene t o the proceedngs n the
ormer sut. b ed wth ths ob ect s caed an
orgna b n the nature o a suppementa b.
The b n cpeston beng ed or the purpose o orm o the
puttng n ssue not on the act o the ng o the
orgna b but aso the statements n that orgna
b ought proper to repeat those statements thoug
t more usua e ades ths b settng out the orgna
b at ength and a errng that the contents o t are
true. The ourts howe er seem sometmes to ha e
been content wth e en ess than ths and to ha e
permtted the orgna acts to be put n ssue n a er
uestonabe manner and e en to ha e dspensed wth
ther beng put n ssue at a thus aowng a suppe-
menta proceedng to ha e the e ect o an orgna one
or ths purpose.
Thus n The ttorne - Genera . oster a where a
suppementa n ormaton was ed aganst partes
aganst whom t was hed that an orgna n ormaton
n the nature o a suppementa n ormaton ought to
ha e been ed that s aganst whom the case ought
to ha e been put n ssue o er agan r ames -
gram . hed that the case was su cent put n
ssue b the suppementa n ormaton to enabe the
new partes to enter nto the merts o the orgna
case. n ths case the suppementa n ormaton mere
stated the ng o an orgna n ormaton statng
and chargng as theren was stated and charged and
pra ng :c. settng orth the whoe pra er. -
though ths was aowed to ha e the e ect o an
orgna n ormaton n the nature o a suppementa
o 1 42 6 urst 1032 de etam . . 2 are 1.
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I II n I I
IN T E R N E T A R C H IV E U N IV E R S IT Y O F C A L IF O R N IA
(0) Ld. Red. ed. 4, p. 99. (d) Ld. Red. ed. 4, p. 73.
(c) For a precedent of uch a (e) Ibid. I': 72.
bill, ee the Appendix, No. XlV.
information, yet it appears that His Honor made that
decision unwillingly, and not without great doubts.
Itis apprehended that the legitimate course would
have been to put the whole case in issne against the
new parties, de novo, at least by averring' that the
tatements and charges were true, if not by setting
themout 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 whomthe former bill was exhibited, and
the manner in which the property has gone oyer to
the successor. The new matter, however, must 110t
be stated "by way of supplement," because the new
bill is not. a supplemental bill, but a new original bill.
Itmust then shew the ground upon which the Court
ought to grant the benefit of the former suit to or
against the successor (b); 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).
To such abill, says Lord Redesdale (d), "a new de-
fence 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 otherwi ... eof advantage
than as it may be an inducement to the Court to make
a imilar decree." In another passage (e) His Lordship
a}s that" in general by an original bill in the nature
Of the Cessation of Interest
Benefit of for-
mer proceed-
ing .
Death of a
Corporation
Sole.
'-v-'
150
150 the essaton o nterest
Death o a n ormaton et t appears that s onor made that
oT decson unwng and not wthout great doubts.
t s apprehended that the egtmate course woud
ha e been to put the whoe case n ssue aganst the
new partes de no o at east b a errng that the
statements and charges were true not b settng
them out at ength besdes as ndependent statements.
ter statng the ormer case and the ng o the
orgna b the new b must reate the proceedngs
whch ha e been had n the orgna sut and the
e ent whch has determned the nterest o the part
b or aganst whom the ormer b was e hbted and
the manner n whch the propert has gone o er to
the successor. The new matter howe er must not
be stated b wa o suppement because the new
b s not a suppementa b but a new orgna b.
t must then shew the ground upon whch the ourt
ouaht to erant the bene t o the ormer sut to or
aganst the successor and t must ca upon the
de endant or an answer n the usua wa .
The pra er must be or a decree adapted to the case
made b the new b and aso as we ha e sad that
the new b ma be consdered and taken as suppe-
menta to the rst b c .
ene t o or- To such a b sa s ord edesdae d a new de-
mer proceed- g ge ma be made the peadngs and depostons n
the ormer cause cannot be used n the same manner
as ed or taken n the same cause and the decree
an has been obtaned s no otherwse o ad antage
than as t ma be an nducement to the ourt to make
a smar decree. n another passage e s ords
sa s that n genera b an orgna b n the nature
d. ed. ed. 4 p. 99. d d. ed. ed. 4 p. 73.
c or a precedent o such a p bd. p. 72.
b see the pend o. .
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Onglnal fr m
DI itized by
of a uppl mental bill the benefit of the former pro- Death of a
ceedings can be obtained." Upon the epas ages Lord Co1rporation
o e .
Eldon make the following remark : "vVith respect "-.r----I
to the [la t quoted] pa sage) in which it is supposed
there i ome ob curity, I may ay, upon the authority
of Lord Rede dale himself, that it i not very easy to
be removed, nor capable of being removed by statinz
any judgment authorising that pas age. The propo-
ition that in general by an original 1ill in the nature
of a upplernental bill the benefit of the former pro-
ceeding may be obtained, is properly so restrained.'
Again;- In thedistinction stated between an original
bill in the nature of a bill of revi vor and an original
bill in the nature of a supplemental bill, Lord Rede -
dale doe. 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.
The epassages do not determine the senseof the word~
the proceedings upon the former hill. You illust endea-
your to determine to what stage the cause 111 u t have
gone, to entitle you to say there are proceeding the
advantage of which the second bill may draw to it elf
as Lord Redesdale expre ses it. But the proposition
so put comprehends every stage of the cause, a fur-
ni hin . the que tion, between the answer and the final
decree obtained and executed; and ageneral doctrine
of this sort does not enable you to a what the Court
ito do in every intermediate ca e between the first
and the la t stage.' of the cau e, where the intere t of
the plaintiff or defendant i ab olutely gone(f). 1 \ 1 1 ' .
Daniell however ugge ts that there i no ob curity iu
Lord R de dal' pa age ; that the confu'ion has
(f) 9 Ve . 54, 55.
1.)1 upon the Deadi of a Party.
upon the Death o a Part . 151
o a suppementa b the bene t o the ormer pro- Death o a
ceedng-5 can be obtaned. pon these passages ord soT
don makes the oowng remarks : th respect .
to the ast uoted passage n whch t s supposed
there s some obscurt ma sa upon the authort
o ord edesdae hmse that t s not er eas to
be remo ed nor capabe o beng remo ed b statng
an udgment authorsng that passage. The propo-
ston that n genera b an orgna b n the nature
o a suppementa b the bene t o the ormer pro-
ceedngs ma be obtaned s proper so restraned.
gan n the dstncton stated between an orgna
b n the nature o a b o re or and an orgna
b n the nature o a suppementa b ord edes-
dae does not sa that n the atter the peadngs and
depostons n the rst cause cannot be used but that
the cannot be used n the same manner and the d -
cut arses upon the negat e proposton wthout
e panng what s the precse dea that beongs to t.
These passages do not determne the sense o the words
the 2 roceedngs upon the ormer h. ou must endea-
our to determne to hat stage the cause must ha e
gone to entte ou to sa there are proceedngs the
ad antage o whch the second b ma draw to tse
as ord edesdae e presses t. ut the proposton
so put comprehends e er stage o the cause as ur-
nshng the ueston between the answer and the na
decree obtaned and e ecuted and a genera doctrne
o ths sort does not enabe ou to sa what the ourt
s to do n e er ntermedate case between the rst
and the ast stages o the cause where the nterest o
the pant or de endant s absoute gone / . Mr.
Dane howe er suggests that there s no obscurt u
ord edesdae s passages that the con uson has
/ 9 es. 54 55.
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U N I V E R S I T Y O F C A L I F O R N I A I N T E R t~E T A R C H I V E
same parties.
(h) 2 Dan. cu. Pro 427.
(i) 3Dan. Ch. Pro 190, 191.
(1e) VideLd. Red. ed. 4, p. 72;
where it is said that the bill, as to
tbe other parties. and the re t of
the nit, is supplemental merely.
(g) But in Tpjohn v. Upjohn,
1841,4 Beav. 246, the benefit of
the former proceedings was given
by adecree, and not by an order on
petition. Vide Appendix, No. xv.
The order eems to be only where
the two suits are between tbe
arisen from erroneously considering the bill in ques-
tion more in the light of a supplemental bill than of
an original bill; that Lord Red esdale's meaning is,
" that if you wish to use the pleadings and depositions
in the first cause as evidence in the second cause, you
mu t obtain an order (g) to do so, as in the ordinary
case of reading the pleadings and depositions in one
uit, in another; and that when they are tendered as
e idence, their admissibility will depend upon the
same rules with regard to privity &c. as have been
already (It) 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 effect 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)."
As to the parties to the new bill ;~if the deceased
rector or bishop was a sole plaintiff, of course the same
per ons will be defendants to the new bill filed by his
ucces or, as were defendants to the original bill. If
the deceased I arty 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
arne rules as have been already given with respect to
the bills treated of in the second chapter (k).
Parties.
Death of a
Corporation
Sole.
'-v-----I
152
Death o a arsen rom erroneous consderng the b n ues-
ok. more n the ght o a suppementa b than o
an orgna b that ord edesdae s meanng s
that ou wsh to use the peadngs and depostons
n the rst cause as e dence n the second cause ou
must obtan an order to do so as n the ordnar
case o readng the peadngs and depostons n one
sut n another and that when the are tendered as
e dence ther admssbt w depend upon the
same rues wth regard to pr t c. as ha e been
aread ponted out wth regard to the admssbt
o the peadngs and e dence n one cause n another
where the suts are dstnct and that the e ect stated
b ord edesdae as to the decree n the rst cause
s precse the e ect whch a decree n one orgna
cause woud ha e n par matera n another cause
whereas the e ect o a decree n a sut pure suppe-
menta woud be to bnd those partes who are a ected
b t b means o ther pr t o nterest .
Partes. s to the partes to the new b the deceased
rector or bshop was a soe pant o course the same
persons w be de endants to the new b ed b hs
successor as were de endants to the orgna b.
the deceased part was a co-pant or a de endant
the orgna pant s w brng hs successor be ore
the ourt b the new b as a de endant and the
ueston as to what orgna partes must be partes to
the new b w t s apprehended be decded b the
same rues as ha e been aread g en wth respect to
the bs treated o n the second chapter .
g ut n p ohn . p ohn same partes.
1 41 4 ea . 246 the bene t o h 2 Dan. h. Pr. 427.
the ormer proceedngs was g en 3 Dan. h. Pr. 190 191.
b a decree and not b an order on / 7e d. ed. ed. 4 p. 72
etcn. de ppend o. . where t s sad that the b as to
The order seems to be on where the other partes and the rest o
the two .ts are between the the sut s M /: /c w/ / mere .
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Original from
Digitized by
which, on searching the Regi trar's
Book, appear to have been the
ca e. ride Reg. Lib. 1691, B.
foJ . 76.
(/) Oicen Y. Curzon, 1691 2
ern. 237, Raithby s (d. The
note, howeyer, says that the de-
murrer in thi case was allowed;
W 11111 st here notice ome exceptions to the above Exceptions
rule, in which, although the interest of the party dying ~
die with him, and another party not claiming under Administrator
him i put into his place, yet the Court permit the de bonis non,
original uit to be continued. This occurs where the
decea ed party ha been uing or sued in autre droit.
Where, for instance, a party suing or defending in the
character of a personal representative dies, and his
per onal representative is not the personal represen-
tative of the original testator, but an administrator
de bonis non is appointed, such administrator de bonis
non does not claim hi intere t in the matter under
the te tator' fir t per onal representative, but by a
title indep ndent of him, and therefore according to
the above doctrine the suit ought to be irremediably
gone, a in the ca e of the rector or bishop. But in-
asmuch a the beneficial interest remains unaltered by
the death, and the rights and liabilities attached to
uch interest remain the same, the new administrator
is allowed to be put in the place of the former per-
sonal representative, as much as if he were the exeCll-
tor of such fir t repre entative, and the repre entation
had de cended lineally to him. Such administrator
de bonis non, therefore, proceeds 01' is proceeded
again t in the uit hy simple bill of revivor (l), the
uit being uppo ed to have become abated.
I I I tlie above ca e of Owen v. Curzon, the reason
.iven i , that by the .tatute 17 C. 2, c. 8, an adrni-
ni. trator de bonis non may revive ajudgment obtained
by the fir t admini trator, and that by analogy a
Court of Equity follows the same rule in respect of a
decree; which eem to imply t.hat the rule only ap-
] 53 upon tile Death of a Partu.
upon the Death o Part . 153
e must here notce some e ceptons to the abo e ceptons
rue n wc athough the nterest o the part d ng
des wth m and another part not camng under dmnstrator
hm s put nto hs pace et the ourt permts t ons non.
orgna sut to be contnued. Ts occurs where the
deceased part has been sung or sued n autre drot.
here or nstance a part sung or de endng n the
character o a persona representat e des and s
persona representat e s not the persona represen-
tat e o the orgna testator but an admnstrator
de bons non s apponted such admnstrator de bons
on does not cam hs nterest n the matter under
the testator s rst persona epresentat e but b a
tte ndependent o hm and there ore accordng to
the abo e doctrne the sut ought to be rremedab
gone as n the case o the rector or bshop. ut n-
asmuch as the bene ca nterest remans unatered b
the death and the rgts and abtes attached to
such nterest reman the same the new admnstrator
s aowed to be put n the pace o the ormer per-
sona re resentat e as much as he were the e ecu-
tor o such rst representat e and the representaton
had descended nea to hm. uch admnstrator
de bons non there ore proceeds or s proceeded
aganst n the sut smpe b o re or the
sut beng supposed to ha e become abated.
n the abo e case o wen . ur on the reason
g en s that b te statute 17 . 2 c. an adm-
nstrator de bons non ma re e a udgment obtaned
b the rst admnstrator and that b anaog a
ourt o ut oows the same rue n respect o a
decree whch seems to mp tut the rue on ap-
/ cen . ur on G 2 whch on searchng the egstrar s
ern. 237 athb s cd. The ook appears to ha e been the
note howe er sa s that the de- case. de eg. b. 1691 .
murrer n ths case was aowed o. 76.
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I ItI
I InI
(0) 1Dun, cu. PI'. 116.
(p) Lyon v. Mercer 1823, 1
S. & .356.
(m) 1740, 2E. Ca. Ab. 3.
(n) Gouglt v. Latouche, 1819,
2Moll. 406. Sed vide 2Bli. 566,
Committee of
lunatic.
Executor
acting by
mistake.
154
Exceptions plies to cases where a decree has been obtained. But
~ the ca e of Huggins v. The Yo?'lt 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 samewhere a person has
acted as executor under a mistake, and the true exe-
cutor succeeds him in the administration of the estate.
Thus where a part.y filed a bill as executor under a
will, and obtained a decree, and a subsequent will was
discovered appointing another party executor, whoalso
claimed as a devisee under such subsequent will; and
the latter party filed an original bill in the nature of
abill 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
Lord 'hip, however, allowed that there was no privity
between the false and the true executor as to what the
latter sought as deoisee, and dismi sed the rest of the
bill (n).
vVherethe committee of a lunatic dies, and a new
committee i appointed, such new committee claims
independently of the first committee. Ncvertheles
the parties are not put to the trouble of an original
biIl, but it appears that in the caseof aplaintiff, the
first committee's suit may be continued by the n,ew
committee, by merely putting in issue his succession
to the first committee's situation, by supplemental
bill (0); and in the case of a defendant, an order will
be made on motion that the new committe benamed
a uch in all future proceeding (p).
154
the essaton o nterest
ceptons
to the ue.
ecutor
actng b
mstake.
ommttee o
unatc.
pes to cases where a decree has been obtaned. ut
the case o uggns . The Tork udngs om-
pan m seems to e tend the rue to a cases -whe-
ther a decree has been obtaned or not.
The rue seems to be the same where a person has
acted as e ecutor under a mstake and the true e e-
cutor succeeds hra n the admnstraton o the estate.
Thus where a part ed a b as e ecutor under a
w and obtaned a decree and a subse uent w was
dsco ered appontng another part e ecutor who aso
camed as a de see under such subse uent w and
the atter part ed an orgna b n the nature o
a b o re or to ha e the bene t o the ormer de-
cree ord Manners sad s a decree on the
wrong u e ecutor s b n a our o the de endants
woud ha e a aed them aganst the present pant
as ar as he was e ecutor to the same e tent on the
other hand he must be entted to re e. s
ordshp howe er aowed that there was no pr t
between the ase and the true e ecutor as to what the
atter sought as de see and dsmssed the rest o the
b n .
here the commttee o a unatc des and a new
commttee s apponted such new commttee cams
ndependent o the rst commttee. e ertheess
the partes are not put to the troube o an orgna
b but t appears that n the case o a pant the
rst commttee s sut ma be contnued b the new
commttee b mere puttng n ssue hs successon
to the rst commttee s stuaton b suppementa
b o and n the case o a de endant an order w
be made on moton that the new commttee be named
as such n a uture proceedngs p .
m 1740 2 . a. b. 3. o 1 Dan. h. Pr. G.
n Go h . atotche 1 19 p on . Mercer 1 23 1
2 Mo. 40 . ed de2 .56G. . . 35 .
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Oriqrnal from
C igltlzed by
also Mendham v. Robin~on, 1 33,
1My!.&K. 217.
(s) Vide Anon. 1739, 1 tk.8.
In this case, which was previous to
the above Acts of Parliament, the
assignees were plaintiffs. But it
i apprehended that if the a signees
were allowed to proceed by upple.
mental bill only, a plaintiffs, a
fortiori they might have been pro-
ceeded again t a defendant, bv
that method. '
(q) 1822, 1 S, & S. 100. Vide
etiam Askew v. Peddle, 1838, 2
J urist, 884; where the next friend
of infant plaintiffs died.
(r) 6 G. 4, c. 16, s. 67, and 7
G. 4, c. 57, s. 26. I thas been
decided that these Acts apply only
to the ca e of a signees plaintiffs,
and not of assignees defendants,
Bainbridge v. Blair, 1 32, Young
Ex. Eq. 3 6, overruling Gilchrist
v, Renten, 1 32, ibid. 387, n. ee
Where a feme cocerte sues by her next friend in reo Exception
pect of her separate property, and he die, it appear ~
that he may nominate a new next friend without Next friend.
filing any new bill. In Barlee v. Barlee (q) it wa
ordered that the feme coverte should name a new next
friend wi thin two months, or that the bill should be
dismi ed with co t to be paid out of the fund in
Court.
'Vhere the as ignee of a bankrupt or in 01vent A ignees of
d b 1
di . d mew assi bankrupt or
e tor cue pen mg a SUIt, an new assIgnees are ap- in olvent
pointed, uch new as ignees claim independently of debtor.
the former assignees. Yet it is not neces ary for a
new suit to be commenced by 01' again. t uch new a. -
iguee. If they are plaintiffs, no fresh bill of any
ort i wanted, but it i only neces al'y to sub titute
their name for the names of the former a signee in
the ub equent proceedings (1'); whilst, if they are de-
fendant, 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 benoticed the peculiar case of asole Sole plaintiff
lai :/F' . . b 1 If f hi If d h in a creditor'
p aintij} instituting a SUIton erat 0 1l11Se an t esuit where hi
rest of a class of persons, a creditors or legatees, and representative
1
, d I f 1 hi . d 1" decline to
on 11 eat 1 a tel' cecree IS representative ec mmg proceed with it
to proceed in it. In this case it i almost a matter of on hi death.
course to permit another per on, reported by the
1 r'
upon the Death of a Party.
here a eme co erte sues b er ne t rend n re- ceptons
spect o her separate propert and he des t appears
that she ma nomnate a new ne t rend wthout e t rend
ng- an new b. n aree . aree t was
ordered that the eme co erte shoud name a new ne t
rend wthn two months or tut the b shoud be
dsmssed wth costs to be pad out o the und n
ourt.
here the assgnees o a bankrupt or nso ent ssgnees o
1 . . . 1 . bankrupt or
debtor de pendng a sut and new assgnees are ap- nso ent
ponted such new assgnees cam ndependent o debtor
the ormer assgnees. et t s not necessar or a
new sut to be commenced b or aganst such new as-
sgnees. the are pant s no resh b o an
sort s wanted but t s on necessar to substtute
ther names or the names o the ormer assgnees n
the subse uent proceedngs r whst the are de-
endants a new b ndeed s re ured but on a
suppementa b puttng n ssue ther appontment
n the pace o the ormer assgnees s .
n ths pace ma be notced the pecuar case o aso/e oe pant
pant nsttutng a sut on beha o hmse and the g - ere hs
rest o a cass o persons as credtors or egatees and representat e
on hs death a ter decree hs representat e decnng proceed wth t
to proceed n t. n ths case t s amost a matter o on hs death.
course to permt another person reported b the
/ 1 22 1 . . 100. de aso Mendham . oMmon 1 33
etam skew . Pedde 1 3 2 M . . 217.
urst 4 where the ne t rend de non. 1739 1 tk. .
o n ant pant s ded. n ths case whch was pre ous to
r G G. 4 c. 16 s. 67 and 7 the abo e cts o Parament the
G. 4 c. 57 s. 26. t has been assgnees were pant n. ut t
decded that these cts app on s apprehended that the assgnees
to the case o assgnees pant s were aowed to proceed b suppe-
and not o assgnees de endants menta b on as pant s a
anhrdge . ar 1 32 oung ortor the mght ha e been pro-
. . 3 6 o errung Gchrst ceeded aganst as de endants b
. en ten 1 32 bd. 3 n. ee that method.
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I N T E R N E T A R C H I V E U N I V E R S I T Y O F C A L I F O R N I A
(t) Houlditch v. Donegall, 1823, (x) Houlditcb v. Donepall, ubi
1S. &S. 491. supra.
(u) Dixon v. lyatt, 1819, 4 (y) Ibid.
Madd.392.
Exceptions Master to be one of that class, to take up the proceed-
~ ings (t); 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. "J n this case;" says
Sir John Leach, V. C., "the plaintiffs having been
permitted to file the supplemental bill on behalf of
themse 1ves 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 plaintiff
would have been entitled to, if they had proceeded by
bill of revivor."
I tmust 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-
plemen tal bill if the representati ve 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 111ust do so by opposing the motion, and
not by answer, plea, or demurrer, to the supplemental
bill (y).
After a creditor has been admitted by order to come
Of the Cessation of Interest 156
ceptons Master to be one o that cass to take up the proceed-
to the ue. gg . and t appears that athough the new pan-
t was not e en a part to the ormer b much
ess a successor to the ormer pant s nterest he
st need not commence de no o b orgna b ac-
cordng to the genera rue abo e g en but need on
put n ssue the suppementa matter shewng that he
s one o the cass n ueston. n ths case sa s
r ohn each . the pant s ha ng been
permtted to e the suppementa b on beha o
themse es and a other persons o the same cass
appear to me to be necessar entted to the same
decree to ha e the bene t o the proceedngs n the
sut as the representat es o the orgna pant
woud ha e been entted to the had proceeded b
b o re or.
t must be obser ed howe er that as the repre-
sentat e o the deceased credtor has an nterest n
the prosecuton o the sut n respect o the costs
aread ncurred n t no other credtor can e the
suppementa b wthout notce to such representa-
t e. The proper course s or the credtor desrng
to prosecute the sut to mo e or bert to e a sup-
pementa b the representat e o the deceased
pant do not re e wthn a mted tme and to
ser e such order on the representat e u and aso
t appears on the de endants . nd an part
wshes to make an ob ecton to such process t ap-
pears that he must do so b opposng the moton and
not b answer pea or demurrer to the suppementa
b .
ter a credtor has been admtted b order to come
0 oudtch . one a 23 oudch . Donega uh
1 . 491. supra.
u Duron . /at 1 19 4 bd.
Madd. 392.
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Onglnal fr' m
DI gI tI zed by
(a) Davies v. Williams, 1826,
1Sim. 5.
(0) Murray v. Elibank, 1804,
10Yes. 84.
(z) Pittv.Richmond's Creditors,
1702, 1E. Ca. Ab. 3. Vide Ld.
Red. ed. 4, p. 79, and Finch v.
Winchelsea, 1727, 1E. Ca. Ab. 2.
in before the Ma tel', and prove his debt and pay his Exceptions
contribution, it appears that he is entitled to revive ~
the uit if it abates (z), on the principle, it is appre-
hended, that be 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 (a).
In this place may be also mentioned the case of aWife and clill-
reference to the Master to approve of a settlement on ~;:e~::~~\o
awife and her children. In this case if the wife dies the Master to
b
I ' 1 M h d hi I hild approve of a
erore t re aster as rna e IS report, t ie c 1 ren, settlement.
al though not previou. ly parties to the suit, have, it
appear, a right to continue the wife's suit by supple-
mental hill, instead of being driven to commence de
novo by an original bill in the nature of asupplemen-
tal bill (b).
Similar to the case of the death of a corporation Death of a
sole is t.he death of a tenant for life to whom no TL~~antfor
L L e.
arrears are due. There is however thi difference "-..-'
between the cases, that in the former the successor is
to be brought before the Court by a new proce s,
having been previou ly 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 ca e 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-
157 vpon the Death of a Party.
pon the Death o a Part . 157
n be ore the Master and pro e hs debt and pa hs ceptons
. . . 1 . 1 to the ue.
contrbuton t appears that he s entted to re e .
the sut t abates on the prncpe t s appre-
hended that he has thereb become a part to and an
actor n the sut. nd a ter decree the present
practce o the ourt s to aow an credtor to pro-
secute the decree b petton mere . ut ths does
not render the suppementa b abo e-mentoned
rreguar the credtor pre ers t o .
n ths pace ma be aso mentoned the case o a e and c -
re erence to the Master to appro e o a settement on e re ncrto
a w e and her chdren. n ths case the w e des the Master to
be ore the Master has made hs report the chdren set tement.
athough not pre ous partes to the sut ha e t
appears a rght to contnue the w e s sut b suppe-
menta b nstead o beng dr en to commence de
no o b an orgna b n the nature o a suppemen-
ta b b .
mar to the case o the death o a corporaton Death o a
soe s the death o a tenant or e to whom no
arrears are due. There s howe er ths d erence
between the cases that n the ormer the successor s
to be brought be ore the ourt b a new process
ha ng been pre ous unascertaned whst n the
atter the remander-man s aread be ore the ourt
ha ng n genera been a necessar part to the sut
rom the begnnng.
cept there ore n the case o hs beng a soe
pant or soe de endant n the ormer o whch
cases the remander-man wshng to prosecute the
same matter ma obtan the bene t o the proceed-
Ptt . chmond s redtors a Da es . T ans 1 26
1702 1 . a. b. 3. de d. 1 m. 5.
ed. ed. 4 p. 79 and nch . b Murra . bank 1 04
nchesea 1727 1 . a. b. 2. 10 es. 4.
Tenant or
e.
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n n I
I tze b
supplemental bill, the benefit of
certain preliminary inquiries under
the Ninth Order of May, 1839.
For the form of the decree in this
cause, see the Appendix, No, XV.
Cd) Vide Fttllowes v. William-
son, 1805,11 Yes. 306,309; Boddy
v. Kent, 1 16, 1 Mer. 361, 364.
Of course this does not apply to the
death of a tenant in common, such
persons having interests perfectly
di tinct from one another, except
in the case of a tenant in common
for life. Vide Askew v. Peddle,
1 3 ,2 J uri t, .84.
(c) Osborne v. Usher, 1721, 6
Bro. P. C. Toml. 20. Itappears
that on the death of a sole plaintiff
whose interest determines with bis
death, a defendant may, before
decree, in some cases obtain the
benefit of the proceedings by an
original bill in the nature of a sup-
plemental bill; this bill being in
fact the commencement of a new
uit, and not a continuation of the
former uit. Vide Upjolm v. Up-
john, 1841, 4 Beav. 246; where a
defendant obtained by such a bill,
called by mistake in the report a
ings (c) in the ame way as asucces or on the 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 litiqandi being gone,)-the death of
the tenant for life will cause 110 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-
ary 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 (d), unless such party was a de
fendant personally liable to the plaintiff's demand.
I t appear, however, that in order to enable the
other parties to proceed with the suit as before, on
the death (whether a legal or a natural one) taking
place, it is necessary that the original bill should have
hewn that the interest in question wa determinabl
upon such death; otherwise the suit will be consi-
The bill must
hew that the
interest was
determinable.
Death of a
Tenant for
Life.
'-.,__.!
15
Death o a
Tenant or
e.
Te b must
shew that the
nterest was
determnabe.
no-s c n the same wa as a successor on te death o
a corporaton soe who was a soe pant and n the
atter o whch cases the sut s e tngushed or want
o ue the causa tgand beng gone the death o
the tenant or e w cause no nterrupton whate er
to the sut whch w proceed as be ore wth respect
to the other partes as such deceased part had
ne er e sted and wthout an new step beng neces-
sar n conse uence o such death. or as the re-
manng partes ha e st amongst them the whoe
nterest n the matter tgated as wth the deceased
part the had be ore and are st competent to
ca upon the ourt or a decree the act o the oss
o nterest o the deceased part s not a matera act
necessar to be brought be ore the ourt. The same
ma be sad o the death o a co-trustee co-e ecutor
or other ont tenant uness such part was a de
endant persona abe to the pant s demand.
t appears howe er that n order to enabe the
other partes to proceed wth the sut as be ore on
the death whether a ega or a natura one takng
pace t s necessar that the orgna b shoud ha e
shewn that the nterest n ueston was determnabe
upon such death otherwse the sut w be cons-
c sborne . sher 1721 6
ro. P. . Tom. 20. t appears
that on the death o a soe pant
whose nterest determnes wth hs
death a de endant ma be ore
decree n some cases obtan the
bene t o the proceedngs b an
orgna b n the nature o a sup-
pementa b ths b beng n
act the commencement o a new
sut and not a contnuaton o the
ormer sut. de p ohn . p-
ohn 1 11 4 ea . 246 where a
de endant obtaned b such a b
caed b mstake n the report a
suppementa b the bene t o
certan premnar n ures under
the nth rder o Ma 1 39.
or the orm o the decree n ths
cause see the ppend o. .
de ao es . am-
on 1 0.5 11 es. G 309 add
. ent 1 1 1 Mer. 301 364.
course ths does not app to the
death o a tenant n common such
persons ha ng nterests per ect
dstnct rom one another e cept
n the case o a tenant n common
or e. de ske . Pedde
1 3 2 urst 4.
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Original from
Digitized by
(f) Lloyd v Johnes, 1 03, 9
Yes. 37, 55,
(e) Hampden v. Breice 1666,
1 Ch. Ca. 77.
dered to have mer ly abated, and not wholly termi- Death of a
nated, with r pect to the decea ed party, and con- TL~~antfor
lie.
equently to tand in need of revivor. Thus where a '-v----I
testator appointed hi widow and a per on of th
name of Hampden hi executors, and dec1ar d that
the widow's executorship should cease on bel' econd
marriage, and the widow and Hampden filed a bill
re peeting the property, but not stating that the
widow' executorship was conditional, and afterward
the widow married, it was held that Ham] den could
not proceed with the suit without bringing the wi-
dow' econd hu band before the Court by a bill of
revivor (e).
Ve may here mention the peculiar ca e of a tenant Death of a
, Z ] , hour j d I . First Tenant in
en. tai .L J 1I 1' WItrout 1 ue, an t ae property g0ll1g Tail without
over to a tenant in tail in remainder. If in thi case the Issue.
Court adhered to its usual rule of requiring all per- '-v----I
on interes ted to be parties to the suit, the remainder-
man in tail would have been a party in the lifetime of
the fir t tenant in tail, and the case would exactly
re emble that already stated of a tenant for life dying.
In consequence however of the anomalous practice of
dispensing with the presence of any person intere ted
in remainder after the first tenant in tail (I), on the
ground that uch tenant in tail, having the powe), of
acquiring the fee imple, may properly be con idere 1
a repre enting the whole inheritance, the death of
the fir t tenant in tail without i ue, and without
havin . acquired th fee simple, leaves the suit in a
condition rather re embling that occasioned by the
death of a bi hop or rector already noticed.
Whichever resemblance mav be considered the
"
clo e t, it would e m to follow that the death of a
159 upon the Death of a Pmty.
erec to ha e mere abated and not who terra - Death o a
nated wth respect to the deceased part and con-
se uent to stand n need o re or. Thus where a
testator apponted hs wdow and a person o the
name o ampden hs e ecutors and decared that
the wdow s e ecutorshp shoud cease on her second
marrage and the wdo and ampden ed a b
respectng- the propert but not statng that the
wdow s e ecutorshp was condtona and a terwards
the wdow marred t was hed that ampden coud
not proceed wth the sut wthout brngng the w-
dow s second husband be ore the ourt b a b o
re or e .
e ma here menton the pecuar case o a tenant Death o a
r . . rst Tenant n
n ta d ng wthout ssue and the propert gong Ta wthout
o er to a tenant n ta n remander. n ths case the sue
ourt adhered to ts usua rue o re urng a per-
sons nterested to be partes to the sut the remander-
man n ta woud ha e been a part n the etme o
the rst tenant n ta and the case woud e act
resembe that aread stated o a tenant or e d ng.
n conse uence howe er o the anomaous practce o
dspensng wth the presence o an person nterested
n remander a ter the rst tenant n ta / on the
ground that such tenant n ta ha ng the power o
ac urng the ee smpe ma proper be consdered
as representng the whoe nhertance the death o
the rst tenant n ta wthout ssue and wthout
ha ng ac ured the ee smpe ea es the sut n a
condton rather resembng that occasoned b the
death o a bshop or rector aread notced.
hche er resembance ma be consdered the
cosest t woud seem to oow that the death o a
e ampden . rewer 1666 / o d . ohnes 1 03 9
1 h. a. 77. es. 37 55.
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7
(g) 1803, 9Yes. 37, 58.
Death of a tenant in tail without issue, being a. sole plaintiff or
First Tenant in ..
Tail without soledefendant, wholly determined the SUIt,andthat the
Issue. benefit of it could only be obtained by or against the
next remainder-man by an original bill in the nature
of a supplemental bill; for such, wehave seen, is the
case both on the death of a tenant for life, being a
sole plaintiff, and on that of a bishop or rector. But
the analogy does not hold; for, as a consequence
of the arbitrary rule already noticed, which treats a
tenant in tail as representing the whole inheritance, a
Court of Equity considers a remainder-man in tail as
in some degree succeeding to the interest of his pre-
decessor, and therefore allows the suit to be con-
tinued by or against him by supplemental bill.
This at least is true as regards the death of a tenant
in tail without issue, being' a defendant. In the above
case of Lloyd v. Johnes (g) Lord Eldon says, " I fthe
bill claims a charge upon the whole inheritance, and
created by the author of all the gifts, comprising the
inheritance, an estate for life with remainders to the
first and other sons in tail; and the first tenant in
tail in being is made a party, and he dies without
issue; according to the con tant practice all the pro-
ceedings are had against the second son, as if he had
been originally a party; and (if I am not misled by
the authority of Lord Redesdale, provoked, I may say,
to accuracy upon this subject) tho eproceedings would
be carried on by a bill, not stating the fact in the
original bill, but stating that the original bill had
represented the facts as there represented; and prac-
tice will sanction the declaration that this formwould
sustain the suit against the second on, as a due mode
of putting in issue the fact that had been put in i sue
again t the elde t."
160
Death o a tenant n ta wthout ssue beng a soe pant or
t1 1 wTtTout soe de endant who determned the sut and that the
ssue. bene t o t coud on be obtaned b or aganst the
ne t remander-man b an orgna b n the nature
o a suppementa b or such we ha e seen s the
case both on the death o a tenant or e beng a
soe pant and on that o a bshop or rector. ut
the anaog does not hod or as a conse uence
o the arbtrar rue aread notced whch treats a
tenant n ta as representng the whoe nhertance a
ourt o ut consders a remander-man n ta as
n some degree succeedng to the nterest o hs pre-
decessor and there ore aows the sut to be con-
tnued b or aganst hm b suppementa b.
Ths at east s true as regards the death o a tenant
n ta wthout ssue beng a de endant. n the abo e
case o o d . oh es g ord don sa s the
b cams a charge upon the whoe nhertance and
created b the author o a the g ts comprsng the
nhertance an estate or e wth remanders to the
rst and other sons n ta and the rst tenant n
ta n beng s made a part and he des wthout
ssue accordng to the constant practce a the pro-
ceedngs are had aganst the second son as he had
been orgna a part and am not msed b
the authort o ord edesdae pro oked ma sa
to accurac upon ths sub ect those proceedngs woud
be carred on b a b not statng the acts n the
orgna b but statng that the orgna b had
represented the acts as there represented and prac-
tce w sancton the decaraton that ths orm woud
sustan the sut aganst the second son as a due mode
o puttng n ssue the acts that had been put n ssue
aganst the edest.
g 1 03 9 es. 37 5 .
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161
Original from
Drgitized by
(h) 3 Dan. Ch. Pro165. vivor: for he t kes by de cent, lik
(i) But quare whether an heir any other heir, and no by p tr-
in tail would not bring a bill of re- cha e.
1\1
And it appear to 1 eneral ly con id r d in t11 Death of a
Book of Practice that the rul i~the am wh re the TFi~lt~ethnanttin
at wi ou
t nant in tail who eli wa: a plaintiff; and that hi Issue,
remainder-man in tail may continue the uit by .~up- ~
plemental bill. In the In t work on thi . ubject it i
aid (lz), "The rule which requires a bill in the nature
of a upplemental 1ill, an 1not a mere upplemental
bill, to b filed in a ca e where the interest of a 01
plaintiff i deterrnin cl and tran mitred to another
pendente lite, applie only to case in which the party
ha become entitled to the int re t of the oriz inal
plaintiff by a eparatc independent title: it doe not
apply wh r the n w party come in by the am title
a the ori inal plaintiff, a in the cas of a tenant in
tail ucc ling to a title to ue in equity upon tI1C
death of a preceding tenant in tail, in which ca e he
may proceed by supplemental bill by" ay of continua-
tion of the original suit: nor doe it appear to make
any diff renee, provided he comes in under the arne
title, that he comes in by force of a new ]imitation
in remainder, upon the determination of a prececlin '
estate tail: he will in such case be entitled to con-
tinue the suit in the arne manner a a tenant in tail
coming in by ucces ion a is ue in tail (i)." For thi
the above mentioned ca e of Lloyd v. Jaimes is citerl
as an authority; and it appear, upon the whole, that
it bear out the propo ition; but the judgment of
Lord Elelon i more remarkable for its depth than for
its clearne s, and there are some passages in it which
appear to militate again t the decision to which he
ultimately comes, 01' the inference which i. com-
monly drawn from that deci ion.
upon the Death of a Pw'ty.
po the Death o a Part . 161
nd t appears to be genera consdered n the Death o a
ooks o Practce that the rue s the same where the .
tenant n ta wo des was a amt nd that hs ssue.
renander-nnm n ta ma contnue the sut b sup-
pementa b. n the ast work on ths sub ect t s
sad / The rue whch re ures a b n te nature
o a suppementa b and not a mere suppementa
b to be ed n a case where the nterest o a soe
pant s determned and transmtted to another
pendente te appes on to cases n whch the art
has become entted to the nterest o the orgna
pant a separate ndependent tte : t does not
app where the new part comes n the same tte
as the orgna pant as n tc case o a tenant u
ta succeedng to a tte to sue n e ut upon the
death o a precedng tenant n ta n whch case he
ma proceed b suppementa b b wa o contnua-
ton o the orgna sut : nor does t appear to make
an d erence pro ded he comes n under the same
tte that he comes n b orce o a new mtaton
n remander upon the determnaton o a precedng
estate ta : he w n such case be entted to con-
tnue the sut n the same manner as a tenant n ta
comng n b successon as ssue n ta . or ths
the abo e mentoned case o o d . ohnes s cted
as an authort and t appears upon the whoe that
t bears out the proposton but the udgment o
ord don s more remarkabe or ts depth than or
ts cearness and there are some passages n t whch
appear to mtate aganst the decson to whch he
utmate comes or the n erence whch s com-
mon drawn rom that decson.
h 3 Dan. h. Pr. 1G5. or .- or be takes b7 descent ke
/ ut ucere wheter an er an other her and not b r.
n ta woud not brn a b o re- chase.
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Oriqinal f m
C I rnzed by
Death of a The case of Lloyd v. Johnes was one in which a
Fir.st'1;'enantin tenant in tail plaintiff died without issue after the
Tall without '
Issue. answers had come in and been replied to, but before
"-,----J'any witnesses had been examined; and the tenant in
Case of Lloyd
v. J ohnes. 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
factsthemselves, and therefore the defendants insisted
that the plaintiff could not proceed to prove an issue
which he had never tendered to them.
Consideration Lord Eldon decided that the facts were sufficiently
?fLordEldon's put in issue and therefore upheld the plaintiff's bill
J udgment. '
in that particular case: but whether he did so on the
ground that a supplemental bill was 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
cour e of proceedings to any such point that this
162
Death o a
rst Tenant n
Ta wthout
ssue.

ase o o d
. ohnes.
onsderaton
o ord don s
udgment.
The case o o d . ohnes was one n whch a
tenant n ta pant ded wthout ssue a ter the
answers had come n and been reped to but be ore
an wtnesses had been e amned and the tenant n
ta n remander ed a suppementa b aganst the
same de endants to whch the put n short answers
re errng to ther ormer answers. The new pant
then entered nto e dence as to the acts stated n the
orgna b. hen the cause came on to be heard
the de endants ob ected to ths e dence beng read
on the ground that the acts whch t proposed to
estabsh had ne er been a erred or put n ssue b
the new pant s b that b mere statng that
another b had been ed aegng those acts whch
ng the de endants dd not den t dd not ca
on the de endants to admt or den the truth o the
acts themse es and there ore the de endants nssted
that the pant coud not proceed to pro e an ssue
whch he had ne er tendered to them.
ord don decded that the acts were su cent
put n ssue and there ore uphed the pant s b
n that partcuar case : but whether he dd so on the
ground that a suppementa b as the rght pro-
ceedng or on the ground that athough the suppe-
menta b was a wrong proceedng et the de en-
dants had b puttng n ther answers wa ed an
ob ecton to t s a pont not eas to be ascertaned.
n page 49 s ordshp ntmates that acts
shoud ne er be put so n ssue agan on account o
the ha ard attendng t.
gan n page 53 s ordshp sa s The genera
ueston s whether ths b can be taken to be a
contnuance o the sut and the rst consderaton
upon that s whether ewes s sut had gone n the
course o proceedngs to an such pont that ths
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Original from
Digitized by
1\ : 12
plaintiff, whoseright was saved byaccident, (but acci- Death of a
dent out of which title arises, not that sort upon ~~iltw1~:~::in
which relief i given under the head of accident,) wa Issue.
to start fromthe conclu ionof the former proceedings '-.--J
instead of beginning de novo; secondly, if he chose to
do so instead of filing an original bill, inwhat 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,
there is not much in practice, and nothing is to be
found injudgment, as authority for it; and therefore
I luuie considerable doubt in saying that the bill can
be sustained in this form; but upon the whole Ithink
it may." And a little further on-" I t 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 apply to the case that
happens morefrequently, and not to that which some-
times mayhappen; and there may bequestion whether
the sameprinciple, 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 pa sages
eems to be that the bill ought to have been an origi-
nal bill in the nature of asupplemental bill.
Again in page 61.-" The bill therefore may be
ustained ; andif it is familiar in pleading, as against
a new tenant in tail corning in, to file a bill stating
that you made such arepresentation in the former bill,
instead of representing the facts in the second bil1,
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 in tance. They
have answered as if the facts were put in issue, and
163 upon the Death of a Party.
pant whose rght was sa ed b accdent but acc- Death o a
dent out o whch tte arses not that sort pon
whch ree s g en under the head o accdent was ssue
to start rom the concuson o the ormer proceedngs
nstead o begnnng de no o second he chose to
do so nstead o ng an orgna b n what manner
he was to e hs b. e has taken a course the
most d cut to sustan upon the orms o the ourt
or uness wth re erence to some partcuar cases
t re s not much n practce and nothng s to be
ound n udgnent as authort or t and there ore
ha e consderabe doubt n sa ng that the b can
be sustaned n ths orm but upon the choe thnk
t ma nd a tte urther on t s to be
obser ed that the ueston where a tenant n ta
succeeds another arses much more re uent where
the tenant n ta s a de endant and not a pant
and there ore a the dcta a Dp to the case that
happens more re uent and not to that w hch some-
tmes ma happen and there ma be ueston whether
the same prncpe app ng to the death o the tenant
n ta de endant appes to hs death when pant
be ore the sut s determned.
The n erence to be drawn rom these passages
seems to be that the b ought to ha e been an org-
na b n the nature o a suppementa b.
gan n page 61. The b there ore ma be
sustaned and t s amar n peadng as aganst
a new tenant n ta comng n to e a b statng
that ou made such a representaton n the ormer b
nstead o representng the acts n the second b
that w do n ths case aganst a the de endants
who made no ob ecton and who are adut and com-
petent. There s no surprse n ths nstance. The
ha e answered as the acts were put n ssue and
m2
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Origin Ifrom
Digitized by
see the note on this pa sage in 3
Dan. ell. Pro 16~.
Ck) "stating (as the fact is)
that &c."
(l) Ld. Red. ed. 4, p. i2. But
Death of a there is no disadvantage to them from this mode of
First Tenant in . . .
Tail without allegl11gthe facts. If there were any surprlse, Ina
I~ case new of its kind, 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(k) 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 fact sufficiently in issuewas taken too late. The
defendants, he says, are adult and competent ;-they
make no objection ;-they have answered as if the
factswere 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
prior tenant under the same settlement, the suit can-
not becontinued by bill of rex ivor, nor can its defects
be supplied bya 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)."
164
Death o a there s no dsad antage to tem rom ths mode o
rst Tenant n n t n
Ta wthout aegng the tacts. t there were an surprse m a
ssue. pr gg g g nd t woud be better to g e them
the opportunt o puttng n other answers but as
the ha e sustaned no dsad antage not ha ng con-
tended wth other weapons than one or two words
more were contaned n the b ths ob ecton s
not su cent to repe the cam o the pant . rom
ths passage t woud appear that ord don aowed
the b mere because the ob ecton to ts not puttng
the acts su cent n ssue was taken too ate. The
de endants he sa s are adut and competent the
make no ob ecton the ha e answered as the
acts were put n ssue the sustan no dsad antage.
t must sure be n erred that the de endants had
been n ants or beng aduts the had taken the
ob ecton earer. s ordshp s decson woud ha e
been d erent.
Ths ew o the sub ect s supported b the autho-
rt o ord edesdae who sa s e press that
the nterest o a pant or de endant sung or de-
endng n hs own rght who determnes and the
same propert becomes ested n another person not
camng under hm as n the case o an eccesastca
person succeedng to a bene ce or a remander-man n
a settement becomng entted upon the death o a
ror tenant under the sane settement the sut can-
not be contnued b b o re or nor can ts de ects
be supped b a suppementa b. ut n
genera b an orgna b n the nature o a suppe-
menta b the bene t o the ormer proceedngs can
be obtaned
k statng as the act s see the note on ths passage a 3
that c. Dan. h. Pr. 169.
d. ed. ed. 4 p. 72. ut
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Original from
Digiti zed by
n the other hand there are other pas age. in Lord Death of a
Eldon's judgment which eem to hew that it i a Fil:st~enantin
, Tall without
natural and proper con,'equence of the rule of 1leading Is lie.
which treats a tenant in tail as absolute own r, that '-v-----I
the next tenant in tail should be considered as so far
standing in his place as to be entitled to continue the
suit by supplemental bill ;-especially as it i admitted
that this consequence follows where he i a defendant,
and that be succeeds to all the disadvantage of a suit
instituted against his predecessor.
It must be observed, however, that Lord Eldon,
throughout hi judgment, treats as distinct the two
question, fir t, whether the remainder-nan i entitled
to tbe 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 uit which shall draw to it the benefi t of the for-
mer one. The first question he clearly decides in the
affirmative : ' The justice of the Court furnishes 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 the inhe-
ritance shall in thi Court have the benefit, and the dis-
advantage, of a proceeding by him em)." 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, whether anything passed in the former cause of
which thi plaintiff can have the benefit; secondly, if
so, whether he ha framed his bill in this cau ein such
a way, tLat he may have the same benefit as he could
have had if his bill bad been framed upon any other
plan. In can idering that, I illust state it to be the
ca e 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
em) 9Yes. 58.
upon tile Deatli oj a Party.

n the other hand there are other passages n ord Death o a
don s udgment wch seem to shew that t s a h t
natura and proper conse uence o the rue o peadng ssue.
hch treats a tenant n ta as absoute owner that
the ne t tenant n ta shoud be consde-ed as so ar
standng n hs pace as to be entted to contnue the
sut b suppementa b especa as t s admtted
that ths conse uence oows where he s a de endant
and that he succeeds to a the dsad antages o a sut
nsttuted aganst hs predecessor.
t must be obser ed howe er that ord don
throughout hs udgment treats as dstnct the two
uestons rst whether the remander-man s entted
to the bene t o the ormer proceedngs and second
he s whether he can obtan that bene t b con-
tnung the e stng sut or must nsttute a new or-
gna sut whch sha draw to t the bene t o the or-
mer one. The rst ueston he cear decdes n the
a rmat e : The ustce o the ourt urnses ths
as a prncpe that t s o absoute necesst when
once t s sad that the tenant n ta sha represent
the nhertance that those who are entted to te nhe-
rtance sha n ths ourt ha e the bene t and the ds-
ad antage o a proceedng b hm w . s opnon
on the second pont s b no means so cear. n page
56 he sa s n ths case take the uestons to be
rst ether an thng passed n te ormer cause o
whch ths panttt can ha e the bene t second
so whether he has ramed hs b n ths cause n suc
a wa that he ma ha e the same bene t as he coud
ha e had hs b had been ramed upon an other
pan. n consderng that must state t to be the
case o a tenant n ta succeedng to a tte to sue n
e ut upon the death o a precedng tenant n ta
and to sue n e ut as a pant camng b orce o
n 9 es. 6 .
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nqm If
DI_ltlzed b
Death of a a new limitation and not by succession. I admit the
~~tJ i~~~~: in difference; but Iamnot satisfied it is so considerable
Issue. that if such a suit could be maintained by the issue in
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.
Italso 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, inpage 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 adifferent
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, which, so stated, I think right, that
the difference between the issuein tail, heir, or devisee,
and aremainder-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 fromthe tenant
in tail taking up the cause, he will have a right to say
that hi interest was represented; and he will con-
tinue it. Itsaves expense, and may be of advantage
to both ;-to the plaintiff, as giving him the benefit of
Death o a a new mtaton and not b successon. admt the
rst Tenant n d erence: but am not sats ed t s so consderabe
Ta wthout 1 1 1
ssue. that such a sut coud be mamtaned b the ssue m
ta upon the prncpes adopted b ths ourt or the
con enence o ustce t sha not be retaned b the
remander-man. Ths seems to hod that the re-
mander-man s n the same stuaton as the ssue not
on wth respect to the rght to bene t b the or-
mer proceedngs but aso wth respect to the rame
o the sut b whch that rght s to be asserted.
t aso seems to hod that an her n ta woud pro-
ceed b a suppementa b and not b a common
b o re or though t s not eas to see the reason
wh .
gan n page 60 a ter sa ng that depostons taken
be ore an ntermedate remander-man comes nto esse
are good as aganst such remander-man he adds
Ths sort o prncpe arsng out o what the ourt
does or the con enence o ustce must be apped
both or and aganst the tenant n ta sub ect awa s
to ths that where the tenant n ta takes a d erent
nterest or rather a smar nterest not a ected b
the same crcumstances t s competent both or and
aganst hm to brng orward the e utes beongng to
those d erent crcumstances as contra- dstngushng
hs case and that s the resut o the passage n ord
edesdae s book wdch so stated thnk rght that
the d erence between the ssue n ta her or de see
and a remander-man camng- b orce o a new m-
taton s that n the atter case the part s not bound
b the shape o the de ence. gan t oows
there ore that an ad antage arses rom the tenant
n ta takng up the cause he w ha e a rght to sa
that s nterest was represented and he w con-
tnue t. t sa es e pense and ma be o ad antage
to both to the pant as g ng hm the bene t o
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Original from
Digitized by
admi ion;-to the defendant, as giving him the ad- Death of a
vantage of any statement in the hill. If the plaintiffsues ~~t;;~:~~; in
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 Lloyd v. Johnes is that whether the tenant in tai~
" proceeds or IS
tenant in tail who dies without issue be a plaintiff or aproceeded
d
1.' d h it b . d b . h against by a
eren ant, t e SUI may e continue y or agamst t esimple supple-
second tenant in tail by supplemental 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 bankrupt.
The new party does not claim under the old one; hut
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 I:mr- peal against
, the decree.
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 (n).
I tneed 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. Hart, 1804, 1 Sch. & Lefroy, 386.
167
upon the Deatli of a Party.
u2 on the Death o a Part . 167
admsson to the de endant as g ng hm the ad- Death o a
antage o an statement n the b. the pant sues out
as b a contnuaton o the sut there s no n ustce ssue.
n pressng aganst hm the ad antage o the state-
ment n a b whch he adopts. ut nether pant
nor de endant s shut out rom statng partcuar cr-
cumstances attachng upon hs case. These passages
seem to pont at a suppementa b and to treat t as
a proper proceedng.
n the whoe t s submtted that the n erence to The second
be drawn rom o d . ohnes s that whether the p oceed s
tenant n ta who des wthout ssue be a pant or a proceeded
de endant the sut ma be contnued b or aganst the suppe-
second tenant n ta b sup ementa b and that menta b
the e amnatons o wtnesses whether de bene esse or
n che and a other proceedngs b or aganst the
rst part w be good n a our o or aganst the
second part . The prncpe s smar to that whch
pre as n the case o new assgnees o bankrupts.
The new part does not cam under the od one but
there s such an dentt o nterest as authorses a
contnuaton o the sut sub ect howe er to ths con-
dton that the new part has the ad antage and the
dsad antage o statng n hs own a our or o ha ng
stated aganst hm an speca crcumstances whch ma
dstngush hs case rom that o the ormer part .
o a remander-man n ta ma appea rom a dend ma ap-
cree aganst the rst tenant n ta and or ths pur- d
pose he must make hmse a part to the sut n the
manner mentoned abo e and pra or the bene t o
the proceedngs or the purpose o appeang .
t need hard be remarked that a sut nsttuted b
or aganst a rst tenant n ta can on be contnued
b or aganst the second tenant n ta when the causa
n G ord . ort 1 04 1 ch. e ro 3 G.
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Oriqlnal f r
C I mzed b
(9) Ld. R d. d. 4, p. 9.
(r) An01., Hi.O, 2 Vern. 197.
(0) 9 Y . 57.
(]) Znon., ) 750, 3 Atk. 726.
Of tlie Cessation of Interest
Where he i
I I plaintiff.
Death of a
Husband
Party in right
of his Wife.
"-..,---J
16
Death of a litiqandi is derived from the party under whom tlley
~~~~t~~~~~: in both claim. If it is derived from some act of the first
~ tenant in tail, the econd tenant in tail, claiming by
independen t title, can never be incorporated into the
suit Ly supplemental bill. "I distinguish," says
Lord Eldon, .c between cases where the suit is
founded upon contract by the tenant in tail, and a
suit to bind the land in re pect of charges created by
the author of the gift, and imposing them therefore
upon all who take performam, doni (0)."
In the case of the death of the husband of afeme
covert, where the husband and wife were parties in
her right, there is this peculiarity, that although his
interest wholly determines with his death, Jet his
death has also the effect of emancipating his wife
from his control, and giving her a new capacity of
. uing oj' being sued. If therefore such husband and
wife were plaintiffs, 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 d cline. to prosecute it he is neither liable to
the co t of it (fj), nor bound by the former pro-
ceedings.
Thus where a 1usband and wife filed a bill in right
of the wife, and the defendants answered, and wit-
nes es were examined, and publication passed, but the
husband died before the hearing, and the wife married
again, and the econd hu band and wife filed a new
bill for the same matter, they were not restrained from
xamining witnesses examined in the former cause,
because the wife was held not to be bound by the pro-
c eding in the former cause ('1').
Jf however the surviv ing wif does pro ecute the
Death o a t anc s der ed rom the part under whom the
Ta wthou oth cam. t s der ed rom some act o the rst
ssue. tenant n ta the second tenant n ta camng b
nde endent tte can ne er be ncorporated nto the
sut b suppementa b. dstngush sa s
ord don between cases where the sut s
ounded upon contract b the tenant n ta and a
sut to bnd the and n respect o charges created b
the author o the g t and mposng them there ore
upon a who tae er or mam don o .
Death o a the case o the death o the husband o a eme
usband co crte where the husband and w e were partes n
Part m rght
o hs e. er rght there s ths pecuart that athough hs
nterest who determnes wth s death et hs
death has aso the e ect o emancpatng hs w e
rom hs contro and g ng her a new capact o
here he s sune or beng: sued. there ore such husband and
1 t
an 1 . rere pant ts and he des athough the w e
ma go on wth the sut as be ore wthout takng an
new step p et she s not bound to do so and
she decnes to prosecute t she s nether abe to
the costs o t 7 nor bound b the ormer pro-
ceedngs.
Thus . here a husband and w e ed a b n rght
o the w e and the de endants answered and wt-
nesses were e amned and pubcaton passed but the
husband ded be ore the hearng and the w e marred
agan and the second husband and w e ed a new
b or the same matter the were not restraned rom
e amnng wtnesses e amned n the ormer cause
1 ecause the w e was hed not to be bound b the pro-
ceedngs n the ormer cause r .
howe er the sur ng w e does prosecute the
o 9 es. 57. d. ed. ed. 4 p. 59.
r.on. 1750 3 tk. 726. r ncn. 2 ern. 197.
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Original from
DI gitized by
(u) 3 Dan. Ch. Pro 211 ; Gilb.
For. Rom. 175; vide eliam Prac.
Reg. 92 and Totb. 12.
(8) Ld. Red. ed. 4, p. 60.
(t) Shelberry v. Briggs, 1691, 2
Vern. 249; sed vide Eylon v. Ey-
ton, 1700, Pree. cs. 116.
uit, he is liable to the entire co t .and bound by the Death of a
former proceedings (s). Husba!ld .
. . .. . Party m right
If the husband 0 dying 1. a defendant, a di: tinction of his Wife.
is made betwe n cases where the uit re p.ct: the W~h he i
. ere e IS
wife's interest I n the character of an executrix 01' ad- a defendant.
ministratrix, and case "here it re I ects he!' inheri-
tance. In the former ca e the wife is bound by the
an wer put in under the authority of her husband,
and therefore his death cau e no imperfection in the
suit; but in the latter cases he is not bound hy such
answer, and consequently, a ... orne new step 111U t be
taken in the cause by the plaintiff to enable her to put
in a new answer, the husband'. death cau es an imp r-
fection in the nit (t). The language of :\Ir. Daniell
however, and of Lord Chief Baron Gilbert eem to
allow no uch listinction, the former aying generall '
that the "rife 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 (u). It
i conceived that the apparent contradiction must be
reconciled by the distinction above made.
In thi latter case, viz. the husband being a defen-
dant, if on the husband's death a new interest arises in
the wife, of cour e she mu t have an opportunity given
her of putting in a new defence in re pect of such new
interest. In thi . ca etherefore an imperfection arise
in the ~nit, but this imperfection i not cau ed by the
death of the husband, but rather 1y the new interest
which accrue to the wife. Thus where a husband
and wife were lefendant as having a term veted in
them in right of the wife, an administratrix, and on
169 upon the Death of a Partu,
sut se s abe to the entre costs and bound b c Death o a
ormer proceedngs 5 . Part trght
the husband so d ng s a de endant a dstncton o s e.
s made between cases where the sut respects the . .
. here he s
w e s nterest n the character o an e ecutr or ad- a de endant.
mnhtratr and cases where t respects er nher-
tance. n the ormer cases the w e s bound b the
answer put n under the authort o her husband
and there ore hs death causes no mper ecton n the
sut but n the atter cases she s not bound b such
answer and conse uent as some new step must be
taken n the cause b the pant to enabe her to ut
n a new answer the husband s deat causes an mper-
ecton n the sut 0- The anguage o Mr. Dane
howe er and o ord he aron Gbert seems to
aow no such dstncton the ormer sa ng genera
that the w e s bound b the answer and the atter
that she s not bound but that a b o re or must
be ed to enabe her to put n a new answer 0- t
s conce ed that the apparent contradcton must be
reconced b the dstncton abo e made.
n ths atter case . the husband beng a de en-
dant on the husband s death a new nterest arses n
the w e o course she must ha e an opportunt g en
her o puttng n a new de ence n respect o such new
nterest. n ths case there ore an mper ecton arses
n the sut but ths mper ecton s not caused b the
death o the husband but rather b the new nterest
whch accrues to the w e. Thus where a husband
and w e were de endants as ha ng a term ested n
them n rght o the w e an admnstratr and on
4 d. ed. ed. 4 p. . n 3 Dan. h. Pr. 211 Gb.
t heberr . r gs 1091 2 or. om. 175 de etan Prac
ern. 249 sed rde ton . - eg. 92 and Toth. 12.
ton 17 0 ree. h. 110.
G
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Original f om
C I rnzed by
(x) Mole v. Smith, 1820,1J.& (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.
Of the Cessation of Interest, &,c.
Death of a
Relator or
Plaintiff in
Interpleader.
"-v---I
Death of a
Husband
Party in right
of his Wife.
170
the husband's death she became entitled to dower out
of the same property, a supplemental bill was held
nece 'ary (x).
If however it is the wife that dies, and her interest
The death of .
the wife causes does not determme but goes over to her husband as
imperfection. her 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
aid 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 ofjure mar-iti'(y).
Where one of several relators in an Information
dies, the suit may proceed without any new step being
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 a}pointed (z).
And in an interpleader uit, after the cau e 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).
170 the essaton o nterest c.
Death o a the usband s death she became entted to dower out
usband same propert a suppementa b was hed
o hs e. necessar .
howe er t s the o e that des and her nterest
the w e causes does not determne but goes o er to her husband as
mper ecton gp admnstrator and not as her sur or her death
o course causes an mper ecton whch must be re-
meded n the ordnar wa . The remed howe er s
sad to be on necessar n respect o estate an
whch the husband becomes possessed o as such
admnstrator and not n respect o that whch he
became possessed ob ure mart .
Death o a here one o se era reators n an n ormaton
eator or des the sut ma proceed wthout an new step benor
Pant n . . . - .
nterpeader necessar . here howe er there s on one reator
t s true that hs death causes an mper ecton n the
sut because there must be some part answerabe
or the costs n case o a decree aganst the com-
panants but the mper ecton s so sght as mere
to ha e the e ect o suspendng the sut unt a new
reator has been apponted .
nd n an nterpeader sut a ter the cause has
been heard and a tra at aw has been drected to
sette the rght between the de endants there s an
end o the sut as to the pant so that he a ter-
wards des the cause proceeds as be ore and there s
no mper ecton each de endant beng n the nature
o a pant a .
Moe . mth 1 20 1 . d. ed. ed. 4 p. 100.
. 665. ut see ac.495. a non. 16 5 1 ern. 351
ackson . awns 1690 2 d. ed. ed. 4 p. 60. .
ern. 194.
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Original from
Digitized b'
WE now come to that part of our subject which re- Effects
d
.('. " f hi 1 a: of Assignment.
gar s imperfections ansmg r0111events w IC1 affect, '---..,--'
not the existence of the person representin . an in-
tere t, but the condition of the interest represented.
The e occur, as we have een in the fourth chapter,
where all the parties to the suit retain their exi tence,
both natural and civil, but cease to represent among
them all the interests necessary to be brought before
the Court.
I thas, in the arne 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
in olvent, or sells or mortgages the property in ques-
tion :-secondly, from the rise of a new intere t, as
where a child is born who is entitled under awill or
ettlement :-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 hi Iiv ing.
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 sowith effect until something wanting to the uit
has been supplied. The su pen ion i only of the
utility of the uit, and not of its vitality.
OF ASSIGNMENT OF INTEREST.
CHAPTER XI.
171
171
PT .
G M T T T.
e now come to that part o our sub ect whch re- ects
. . . p 1 1 n o ssgnment.
gards mper ectons arsng trom e ents wc attect .
not the e stence o the person representng an n-
terest but the condton o the nterest represented.
These occur as we ha e seen n the ourth chapter
where a the partes to the sut retan ther e stence
both natura and c but cease to represent among
them a the nterests necessar to be brought be ore
the ourt.
t has n the same chapter been stated that ths
ma happen n three d erent wa s : rst rom the
assgnment n act or n aw o an e stng nterest
as where a part to the sut becomes bankrupt or
nso ent or ses or mortgages the propert n ues-
ton : second rom the rse o a new nterest as
where a chd s born who s entted under a w or
settement : and thrd rom the cessaton o an
nterest durng the e o the part en o ng t as
where a tenant s ease e pres n hs etme or a
rector resgns hs ng.
n a these cases t must be obser ed that though
de ect arses the sut becomes nether abated nor e -
tnct. The od tgant partes are st ng and
capabe o nterpeadng though the can no onger
do so wth e ect unt somethng wantng to the sut
has been supped. The suspenson s on o the
utt o the sut and not o ts tat .
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rI InI fro
DI_ltlzed b
IN T E ~N E T A R C H IV E
(a) Earles v. Harris, 1 42,1 Y." ColI. C. C. 230.
Effects "\Ve will first consider the defect arising from the
~. Assignment of an exist.ing interest.
The assignment of an existing interest pendente lite
does not in all cases cause defect, becau e where the
assignment is an (.ssignrnent in deed, and not in law,
and where it passes an equitable interest only, and not
alegal 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 11a,eany effect to the preju-
dice of the snit. The assignee may indeed, asweshall
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-plaintiff executed a deed of assign-
merit, 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
snit frombeing 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 pendente lite is an assign-
ment in law, as abankruptcy, or where 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
parties. And this incompleteness exists equally, al-
though the as ignment has been made to a person
who was already a party to the suit in some other
capaci ty; because, al though in t-hatcase the assignee
1 before the Court, yet he is 0on aground perfectly
Of Assignment of Interest. 17:2
72 ssgnmtnt o nterest.
ects e w rst consder te de ect arsng rom te
o ssgnment ss nmet o an e stng nterest.
The assgnment o an e stng nterest pendente te
does not n a cases cause de ect because where the
assgnment s an assgnment n deed and not n aw
and where t passes an e utabe nterest on and not
a ega estate t has no adt e cept n a ourt o
ut and that ourt ha ng the soe cognsance
o t w not aow t to ha e an e ect to the pre u-
dce o the sut. The assgnee ma ndeed as we sha
present see nter ene he thnks proper but
unt he does so t s open to the other partes to treat
the assgnment as who nugator and to consder
the assgnor as st the person representng the n-
terest n ueston.
Thus where a co-pantt e ecuted a deed o assgn-
ment or the bene t o hs credtors o hs e utabe
nterest on n the sub ect matter t was hed that
such an assgnment pendente te dd not pre ent the
sut rom beng heard but that t mght be heard as
there had been no such assgnment and that those
who camed under t must take such course to en-
orce ther rghts as the mght be ad sed a .
ut where the assgnment penc ewe te s an assgn-
ment n aw as a bankruptc or here t a ects the
ega estate n the premses a ourt o ut must
acknowedge that the assgnor has ost hs nterest
or a part o t as the case ma be and that the sut
has become ether cosed or ncompete or want o
artes. nd ths ncompeteness e sts e ua a-
though the assgnment has been made to a person
who was aread a part to the sut n some other
capact because athough n t at case the assgnee
s be ore the ourt et he s so on a ground per ect
a ades . arrs 1 42 1 . o. . . 230.
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Original from
DI gitized by
distinct from that which now render him a nece ary Effects
of Assignment.
party. '--...--'
In the elatter case of assignment, therefore, the suit
cannot proceed to any useful purpo e until the defect
occasioned has been supplied. And we have now to
con ider the proper mode of effecting this.
The remedy for a defect occasioned by the as ign-
ment of an interest varies according as the party who
wi hes 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, a a total assignment by a ole plain-
tiff j or of making it incomplete only, as a di sputed or
a partial assignment by a sole plaintiff, or an assign-
ment by a co-plaintiff or defendant; and again, in the
latter ca es, according as the party conducting the suit
takes notice of the assignment or leaves the assignee
to his own remedies.
I .Where the assiznment is such as to put an end I: Total As-
, O. 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 hi 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 al l 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 per'on who can proceed with the suit i
the assignee himself; and this he cannot do by a mere
173 Of Assignment of Interest.
ssgnment o nterest. 173
dstnct rom that whch now renders hm a necessar ects
o ssgnment
part .
n these atter cases o assgnment there ore the sut
cannot proceed to an use u purpose unt the de ect
occasoned has been supped. nd we ha e now to
consder the proper mode o e ectng ths.
The remed or a de ect occasoned b the assgn-
ment o an nterest ares accordng as the part who
wshes to make the sut per ect s one o the orgna
partes to the sut or the assgnee who s a stranger
to t : and t s proposed to consder our sub ect ac-
cordng as the assgnment has the e ect o puttng an
end to the sut as a tota assgnment b a soe pan-
t or o makng t ncompete on as a dsputed or
a parta assgnment b a soe pant or an assgn-
ment b a co-pant or de endant and agan n the
atter cases accordng as the part conductng the sut
takes notce o the assgnment or ea es the assgnee
to hs own remedes.
. here the assgnment s such as to ut an end
. sgnment b
to the whoe sut as a tota assgnment b a soe oe Pant .
pant .
here a soe pant knowng and ntentona
assgns a hs nterest n the matter tgated to an-
other person and has no rauduent desgn o de-
eatng or dsputng hs own act or where an assgn-
ment n aw takes pace and the pant does not
dspute the ega e ects o the e ent t s ob ous that
the pant has ost a mot e or proceedng wth
the sut and there ore though nether abated nor
e tnct et uness taken up b some other person
t s n e ect na cosed. e ore decree a de en-
dant cannot make h.nse an actng part and there-
ore the on person who can proceed wth the sut s
the assgnee hmse and ths he cannot do b a mere
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Original from
01gI t I zed by
(c) Ld. Red. ed. 4, p. 99. (b) For a precedent of this sort
of bill seethe Appendix, No. XVI.
1. Total As-
signmentby
SolePlaintiff.
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
~~s~~~~~a~les issue, repeating the statements in the original bill, and
bill in the then stating the filingof that bill, and the proceedings,
nature of a
supplemental and the assignment under which he claims: and he
bill. 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(b).
The reason why the original casemust again be put
in issue, has already been noticed as arising fromthe
doctrine of maintenance. It is not enough for the
new plaintiff tostate that his assignor instituted a suit,
and assigned to himthe 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 inthe case
of the original bill in the nature of a supplemental bill
mentioned in the preceding chapter.
Motion by Although an original bill in the nature of a supple-
~f:~~~:~h~~e mental bill is, to use the language of Lord Redes-
soleplaintiff dale(c), not a continuation of the former suit, but a
becomesbank- hi h d . If h d t f th
rupt. new SU1tw IC raws to itse tea van ages 0 e
Of Assignment of Interest. 174
174
ssgnment o nterest.
. Tota s-
sgnment b
oe Pant .
_
ssgnee es
an orgna
b n the
nature o a
suppementa
b.
Moton b
de endant to
dsmss where
soe pant
becomes bank-
rupt.
suppementa b but must e a new orgna b
though n the nature o a suppementa one.
ths b the assgnee w put the whoe case n
ssue repeatng the statements n the orgna b and
then statng the ng o that b and the proceedngs
and te assgnment under whch he cams : and he
w charge that n conse uence o such assgnment
he aone s entted to the nterest n ueston and
has a rght to prosecute the matter and he w pra
that he ma ha e the bene t o the ormer proceed-
ngs and that or that purpose hs b ma be taken
as suppementa to the ormer b. an case or
speca ree arses out o the crcumstances o the
assgnment he w add a pra er or such speca
ree 5 .
The reason wh the orgna case must agan be put
n ssue has aread been notced as arsng rom the
doctrne o mantenance. t s not enough or the
new pant to state that hs assgnor nsttuted a sut
and assgned to hm the bene t o t he must shew
that hs assgnor had the propert n respect o whch
the sut was nsttuted and that that propert has been
assgned and carres wth t the rght to sue.
The proceedngs upon the new b and the degree
to whch the new pant w be aowed the bene t
o the ormer sut as we as the mode o a ang
hmse o such bene t w be the same as n the case
o the orgna b n the nature o a suppementa b
mentoned n the precedng chapter.
though an orgna b n the nature o a suppe-
menta b s to use the anguage o ord edes-
dae c not a contnuaton o the ormer sut but a
new sut whch draws to tse the ad antages o the
or a precedent o ths sort
o b see the ppend o. .
c d. ed. ed. 4 p. 99.
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175
Original from
Digirized by
to determine whether they would
file a supplemental bill or not, it
refused, under the circum tances,
to extend the time. Hunting-
tower v. Douglas, 1842,7 J urist, 8.
(e) Shcrp , Hullett, ubi supra.
(d) French v. Barber, 1781, 3
Beav. 295,n.; Porter v. Cox, 1820,
5 Madd. 0; Sharp v. Hullett,
1826, 2 S. & S. 496; Hunting-
tower v. Sherburne, Rolls, Nov.
19, 1842. Where the Court had
granted a month to the assignees
former suit, yet for somepurposes it seems to be con- I .Total As-
sidered as acontinuation only. Thus, if a sole plain- ~~~m;l:~n~ff.
tiff becomes bankrupt, and the regular time for dis- ~
missal for want of prosecution arrives, the defendant
does not make the u ual motion to dismiss for want of
prosecution, but moves specially, upon notice, that the
bill be dismissed without costs unless the assignees
filea supplemental bill within acertain timeCd).
The reason for this special motion is thus given by
Sir J ohn Leach: " If when theplaintiff becomes bank-
rupt, it were permitted to the defendant to dismiss
the bill for want of prosecution, it would necessarily
subject the bankrupt to the payment of costs when he
has no mean , which is against the general rule of this I
Court as to bankrupts; and it might beattended with
this further inconvenience, that the bill might bedis-
missed without the assignees knowing the fact that
such a bill was filed, and without any opportunity of
judging on their part whether it would or would not
be beneficial to the bankrupt's estate that the suit
should be prosecuted. An order that the bill should
be dismissed without costs within a limited time, if
the assignees do not think fit to filea supplemental
bill, obviates both these objections, provided the notice
of motion is served on the assignees (e).
It appears that the limited time allowed to the as-
signees ought to be at least as long as the time which
the original plaintiff would have been allowed for pro-
secuting hisown suit. " I tis hardly reasonable," says
Of Assignment of Interest.
ormer sut et or some purposes t seems to be con- 1. Tota s-
sdered as a contnuaton on . Tus a soe pan- sd pa t
t becomes bankrupt and the reguar tme or ds-
mssa or want o prosecuton arr es the de endant
does not make the usua moton to dsmss or want o
prosecuton but mo es speca upon notce that the
b be dsmssed otot costs uness the assgnees
e a suppementa b wthn a certan tme .
The reason or ths speca moton s thus g en b
r ohn each : when the pant becomes bank-
rupt t were permtted to the de endant to dsmss
the b or want o prosecuton t woud necessar
sub ect the bankrupt to the pa ment o costs when he
has no means whch s aganst the genera rue o ths
ourt as to bankrupts and t mght be attended wth
ths urther ncon enence that the b mght be ds-
mssed wthout the assgnees knowng the act that
such a b was ed and wthout an opportunt o
udgng on ther part whether t woud or woud not
be bene ca to the bankrupt s estate that the sut
shoud be prosecuted. n order that the b shoud
be dsmssed wthout costs wthn a mted tme
the assgnees do not thnk t to e a suppementa
b ob ates both these ob ectons pro ded the notce
o moton s ser ed on the assgnees e .
t appears that the mted tme aowed to the as-
sgnees ought to be at east as ong as the tme whch
the orgna pant woud ha e been aowed or pro-
secutng hs own sut. t s hard reasonabe sa s
d rench . arber 17 1 3 to determne whether the woud
ea . 295 n. Porter . o 1 20 e a suppementa b or not t
5 Madd. 0 harp . u ett re used under the crcumstances
1 26 2 . . 496 untng- to e tend the tme. untng-
tower . herhrne os o . /ot er . o /a 1 42 7 urst .
19 1 42. here the ourt had e harps. uett ub supra.
granted a month to the assgnees
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Original from
Digitizedby
(h) 1811, 18 Yes. 424,427. (/) Ld. Red. ed. 4, p. 65.
(g) 1 Hare, 621, 622.
1. Total As-
signment by
Sole Plaintiff.
Sir J ohn Leach, V. C., in the same case, "that a bill
should be dismissed for want of prosecution as against
- --' assignees at an ear1ier period than it could, according
to the course of the Court, have been dismissed for
want of prosecution if the plaintiff had not become
bankrupt. For that would betodeny to the assignees,
who stand ill the place of the bankrupt, the same time
for being advised as to the propriety of continuing the
suit, as was afforded to the bankrupt, although the
assignees cannot equally be informed as to the subject
of the suit."
By supplemental bill (the term used in the above
cases) it is apprehended that oriqlnal bill in nature of a
supplemental bill must have been meant, because the
assignees of a bankru pt sole plaintiff can file no other
sort of bill (f). And, if so, it certainly seemsprima
facie an anomaly to say that the dismissal of one suit
shall depend upon the institution or non-institution of
another suit. In these cases, however, says Sir J ames
Wigram, V. C. (g), "when the Court makes an order
that the bill be dismissed (but always without costs)
unless the assignees file a S 11pplemental bill within a
limited time, the Court makes no order aqainst tlte as-
signees. I tmerely gives the assignees the benefit of a
notice that the bankrupt's defective suit will be dis-
missed as against him unless the assignees take pro-
ceedings to sustain the original suit. It is an indul-
gent act towards the assignees, &c. The language
of Lord Eldon in Randall v. Mumford (ll), shews that
formerly the Court actecl against the bankrupt only, in
these cases, obliging him to procure his assignees to
act, and to file a supplemental bill, at the peril of
Of Assignment of Interest, 176
1 76 ssgnment o nterest.
. Tota s. r on eac . n te same case that a b
oeTanu oud be dsmssed or want o prosecuton as aganst
assgnees at an earer perod than t coud accordng
to the course o the ourt ha e been dsmssed or
want o prosecuton the pant had not become
bankrupt. or that woud be to den to the assgnees
who stand n the pace o the bankrupt the same tme
or beng ad sed as to the propret o contnung the
sut as was a orded to the bankrupt athough the
assgnees cannot e ua be n ormed as to the sub ect
o the sut.
suppementa b the term used n te abo e
cases t s apprehended that orgna h n nature o a
suppe ne ta h mu t ha e been meant because the
assgnees o a bankrupt soe pant can e no other
sort o b / . nd so t certan seems pr/rwa
ace an anoma to sa that the dsmssa o one sut
sha depend upon the nsttuton or non-nsttuton o
another sut. n these cases howe er sa s r ames
gram . . g when the ourt makes an order
that the b be dsmssed but awa s w thout costs
uness the assgnees e a suppementa b wthn a
mted tme the ourt makes no order aganst the as-
sgnees. t mere g es the assgnees the bene t o a
notce tat the bankrupt s de ect e sut w be ds-
mssed as aganst hm uness the assgnees take pro-
ceedngs to sustan the orgna sut. t s an ndu-
gent act towards the assgnees c. The anguage
o ord don n anda Mum ord h shews that
ormer t e ourt acted aganst the bankrupt on n
these cases obgng hm to procure hs assgnees to
act and to e a suppementa b at the per o
/ d. ed. ed. 4 p. 65. h 1311 1 es. 424 427.
s 1 are 621 622.
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p
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Original from
U N I V E R S I T Y 0 F C A U F O R N I I I .
O i gitized by
N
cree to be paid to the plaintiff, and
he became bank rupt, he and his as.
signee" applied by petition to have
it paid to the a signees; which was
granted, the SUIll being very small.
Setcole v. Healy, 17 8, 2 Bro. C.
C.322.
(n) Ld. R ed. eil. 4, p. 9;) ; where
he ays, that a bill of thi denomi-
nation may be filed by the a ign e
of a party to the decree.
(i) 1818, 4 Madd. 17l. Vide
etiam Bromley v. Gregol'Y, 1812,
and .. s au v. Fry, 18]6, 3 Beav.
296, 297, n.
(k) Caddick v. Mas s on, 1827,
1 Sim, 501; Latham v. Kenrick,
1827, 1 im. 502j Kilmins ter v.
Pmtt, 1842, 1 Hare, 6;$2; 6 J u-
ri t, 1081.
(l) Ld. R ed. ed. 4, p. 73.
(m) O noneoccasion.where money
bad been ordered by the former de-
177 Of As s ignment of Interes t.
having his bill di missed if he failed to do . o. TVltee- I . Total As.
signment by
ler v. Malins (i) i to the same effect." Sole Plaintiff.
I tmu t be observed however that the above-men- "-.----I
tioned practice i not adopted in the case of the bank-
rupt being a co-plaintiff. In that case, as the other
co-plaintiffs are capable of pro ecuting the suit, if
they please, the motion to dismiss for "rant of prosecu-
tion must be made in the ordinary way (1/').
If the as 'ignee brings his original bill in the nature How far the
of a supplemental bill after a decree has been made ~;l~~~! ~!c~.ee
in the first suit he cannot claim the benefit of that canbeobtained ,
decree as a matter of course, for the laws of main-
tenance forbid the as ignment of a decree a much as
the a ignment of any other right of litigation. "The
decree," says Lord R ede dale, "i of no further u e
than as it may induce the Court to make a similar
decree (l)." The benefit of the decree, therefore, if
obtained at all, can only be obtained by a decree to
that effect in the second suit (m). In this case the new
bill is sometimes called a bill to carry a decree into
execution (n). And it is strictly necessary that an The assignee
. ho bri 1 I b'll' 1 f must shew that
assignee w 10 l'lngs J118ol'lgll1a 1 III t ie nature 0 a the first decree
supplemental bill to have the benefit of a former de- was a proper
1 I
one.
cree, should shew t rat t rat decree was a proper one;
for the Court wil l not carry a former decree into execu-
tion, without fir t examining that decree, and sati'fying
ssgnmen o nterest. 177
ha ng hs b dsmssed he aed to do so. hee- - Tota s-
er . Ma/s s to the same e ect. oe pant t .
t must be obser ed howe er that the abo e-men-
toned practce s not adopted n the case o the bank-
rupt beng a co-pant . n that case as the other
co-pant s are capabe o prosecutng te sut
the pease the moton to dsmss or want o prosecu-
ton must be made n the ordnar wa / .
the assgnee brngs hs orgna b n the nature ow ar the
o a suppementa b a ter a decree has been made ome dea-ee
n the rst sut he cannot cam the bene t o that canbeobtaned
decree as a matter o course or the aws o man-
tenance orbd te assgnment o a decree as much as
the assgnment o an other rght o tgaton. The
decree sa s ord edesdae s o no urther use
than as t ma nduce the ourt to make a smar
decree . The bene t o the decree there ore
obtaned at a can on be obtaned b a decree to
that e ect n the second sut w . n ts case te new
b s sometmes caed a b to carr a decree nto
e ecuton m - nd t s strct necessar tat an The assgnee
assgnee wo brngs s orgna b n the nature o a ur rttTem
suppementa b to ha e the bene t o a ormer de- as a proper
cree shoud shew that that decree was a proper one
or the ourt w not carr a ormer decree nto e ecu-
ton wthout rst e amnng that decree and sats ng
1 1 4 Madd. 171. de cree to be pad to the pant and
etarn rome . Gregor 1 12 he became bankrupt he and hs as-
and Ms . r 1 16 o ea . sgnces apped b e////o to ha e
296 297 n. t pad to the assgnees hc was
k addck . Masson 1 27 granted the sum beng er sna.
1 m. 501 atham . nrck et coe . ea 17 2 ro. .
1 27 1 m. 502 mmter . . 322.
Pratt 1 12 1 are G .2 6 u- d. ed. ed. 4 p. 95 where
rst 10 1. he sa s that a b o ths denom-
/ d. ed. ed. 4 p. 7 . naton ma be ed b the assgnee
7w noneoccason weremone o a part to the decree.
had been ordered b the ormer de-
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p
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Original from
Digitized by .
AU. Gen. v. Day, 1749,1 Ves. sen.
218; and West V. Skip, 1749, 1
Ves. sen. 239.
(p) 1834, 12 Law J. Ch. 112.
(0) Hamiltonv. Houghton, 1820,
2 Bli. 170; vide etiam Johnson v.
Northey, 1700, Pro Ch. 134; 2
Vern. 407; Werden v. Gerard,
] 718, cited Ld. Red. ed. 4t p. 96, n. ;
itself that it was a correct one; and if it finds that any
error exists in the decree, it will decline adopting it(0),
and the assignee will be obliged to commence de novo
and ask for a new decree.
If therefore the assignment should have taken place
before the decree, the assignee can obtain no benefit
from such decree, because it will beconsidered tohave
been an erroneous decree for want of a proper party to
it, namely, theassignee. Thelatter must therefore not
only make out an independent case for himself by his
original bill in the nature of a supplemental bill, but
also carryon his suit to an entirely new decree just as
if no other decree had ever been made.
Thus in Clunn v. Crofts (p), a married woman filed
abill by her next friend, stating her title to a share of
the personal property of an intestate, as oneof his next
of kin; and also stating a separation deed which gave
her power over such share, and praying the usual
accounts of the intestate's estate. Afterwards she as-
signed the share which she expected to be decreed to
her to trustees in trust for certain persons; and yet
proceeded with her suit notwithstanding, and obtained
a decree in her favour. Afterwards the cestui que
trusts filed a simple supplemental bill, praying that
they might have the benefit of the decree as if they
had been parties to the original suit, and for leave to
prosecute it; and on an objection being taken that the
decree was erroneous for want of parties, and that
therefore the new plaintiffs could not have the benefit
of it, Sir John Leach, M. R., said; "The frame of the
present bill is wrong, because it only recites the se-
I. Total As-
signment by
Sole Plaintiff.
~
178
17 ssgnment o nterest.
. Tota s- tse that t was a correct one and t nds that an
oTpant sts n the decree t w decne adoptng t o
/ and the assgnee w be obged to commence de no o
and ask or a new decree.
there ore the assgnment shoud ha e taken pace
be ore the decree the assgnee can obtan no bene t
rom such decree because t w be consdered to ha e
been an erroneous decree or want o a proper part to
t name the assgnee. The atter must there ore not
on make out an ndependent case or hmse b hs
orgna b n the nature o a suppementa b but
aso carr on hs sut to an entre new decree ust as
no other decree had e er been made.
Thus n hnn . ro ts p a marred woman ed
a b b her ne t rend statng her tte to a share o
the persona propert o an ntestate as one o hs ne t
o kn and aso statng a separaton deed whch ga e
her power o er such share and pra ng the usua
accounts o the ntestate s estate. terwards she as-
sgned the share whch she e pected to be decreed to
her to trustees n trust or certan persons and et
proceeded wth her sut notwthstandng and obtaned
a decree n her a our. terwards the cestu ue
trusts ed a smpe suppementa b pra ng that
the mght ha e the bene t o the decree as the
had been partes to the orgna sut and or ea e to
prosecute t and on an ob ecton beng taken that the
decree was erroneous or want o partes and that
there ore the new pant s coud not ha e the bene t
o t r ohn each M. . sad The rame o the
present b s wrong because t on rectes the se-
o amton . oughton 1 20 tt. Gen. . Da 1749 1 es. sen.
2 . 170 de etam ohnson . 21 and est . kp 1749 1
orthe 1700 Pr. h. 134 2 es. sen. 239.
ern. 407- erden . Gerard p 1 34 12 aw . h. 112.
171 cted d. ed.ed. 4 p. 96 n
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p
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Original from
[)I ~itl zed by
(q) Hamiltonv.Houghton, 1820, 232.
2Eli. 169. (8) Bl'OW1~ v. Clark, 1787, 3
(r) Shepherd v, Titley, 1742, Woodeson's Lectures, 378, n.
2 Atk. 348; vide etiam Robinson (t) Wartnabyv. Wartnaby, 1821,
v. Robinson, 1750, 2Yes. sen. 225, J ac.377.
N 2
veral proceedings under the former bill, and does not I .Total As-
prove the separation deed and other matters material ~~~m;l~rn~&.
to establish the plaintiffs' right to a decree. The bill "-..--'
should not have prayed the benefit of the former de-
cree, but it should have prayed for anewdecree. The
supplemental bill should have gone into evidence, and
should have made out the same case as was made out
by the original bill. The decision of the House of
Lord (q) isaccording to this principle. I can make a
new decree to the same effect as the former decree on
a proper case being made out, but not in a supple-
mental suit."
I t need hardly be observed that it is only the de-
fendant to the new bill, who can call in que tion the
former decree; the party who seeks for the benefit of
it cannot controvert any part of it. If the latter is
dissati fied with any part of the decree, he must im-
peach it by some other method (r).
In this place may be mentioned the case of a plain- Where a plain-
tiff becoming idiot or lunatic, and having acommittee tliffbt~CO~d~St
unaIC, I 10 ,
appointed. When this happens, it appears that the or imbecile.
committee continues the suit in the joint names of
himself and the idiot or lunatic, and. adds himself to
it by supplemental bill merely, without being necessi-
tated to commence de novo. And the supplemental
bill answers the same purpose as a bill of revivor in
obtaining the benefit of the former proceeding (s),
Where aplaintiff becomes imbecile during a suit, so
that it isnecessary to appoint a next friend to sue for
him, it appears that the proceedings are not stayed on
that account (t).
179 Of Assignment of Interest.
era proceedngs under the ormer b and does not . Tota s-
pro e the separaton deed and other matters matera 0
oe Pant t
to estabsh the pamtt s rght to a decree. The b
shoud not ha e pra ed the bene t o the ormer de-
cree but t shoud ha e pra ed or a new decree. The
suppementa b shoud ha e gone nto e dence and
shoud ha e made out the same case as as made out
b the orgna b. The decson o the ouse o
ords s accordng to ths prncpe. can make a
new decree to te same e ect as the ormer decree on
a proper case beng made out but not n a suppe-
menta sut.
t need hard be obser ed that t s on the de-
endant to the new b who can ca n ueston the
ormer decree the part who seeks or the bene t o
t cannot contro ert an part o t. the atter s
dssats ed wth an part o the decree he must m-
peach t b some other method r .
n ths pace ma be mentoned the case o a pan- here a pan-
t becomng dot or unatc and ha no a commttee
. . unatc dot
apponted. hen ths happens t appears that the or mbece
commttee contnues the sut n the ont names o
hmse and the dot or unatc and adds hmse to
t b suppementa b mere wthout beng necess-
tated to commence de no o. nd the suppementa
b answers the same purpose as a b o re or n
obtanng the bene t o the ormer proceedngs s .
here a pant becomes mbece durng a sut so
that t s necessar to appont a ne t rend to sue or
hm t appears that the proceedngs are not sta ed on
that account 0
amton . oughton 2 232.
2 . 169. s rown . ark 1/ 7 3
r hepherd . Tte 1742 oodeson s ectures 37 n.
2 tk. 34 de etam obnson t artnab / . arnab/ 2
. obnson 1750 2 es. sen. 225 ac. 377.
2
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#
p
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n In I
I rtize b
II. Where the II. 'Ve will now consider the cases where the as, ign-
t
PhlaiAnti~adds ment merely renders the suit incomplete for want of
e ssignee
to the Suit. parties, and the party conducting the suit is desirous
...._,,____, of remedying such defect. .
Where the as- . It sometimes happens that either from the dis-
sign~ent is honesty of the assignor or from its being' really doubt-
questionable. ' .
"ful whether the transaction amounted to an assign-
ment or not, the fact of assignment is a question in
dispute between the assignor and assignee. Here, of
course, the plaintiff has no intention of abandoning his ~
suit; and he will, according as he thinks best, either
continue the suit as if nothing had happened, treating
the 'pretended assignment as a nullity, or else make
the new claimant a party in respect of his claims. If
he chooses to bring the pretended' assignee before the
Court, he must do so by that species of bin which 'we
already know under the name of asupplemental bill ;
110trestating his case de novo, because the assignee, if
he be one, must of course take subject to all the liti-
gation in which the interest' he has acquired is in-
volved; but merely mentioning the original bill and
the proceedings under it, and then stating the event on
which the assignee builds his claim, and the claim so
founded upon it, and charging ,that such event did not
amount to an assignment, and that the defendant has
in fact no interest in the matter, but that on account
of his claims he is a necessary party to the suit. To
such a bill the pretended assignee will be the only
necessary defendant, unless there is anything' in the
statements which affects the interests of .the former
defendants. And the proceedings on this bill will be
similar to those already mentioned with regard to the
supplemental bills which form the subject of the se-
cond chapter.
A plaintiff Conformably to what lias been said, a ole plaintiff
1 0 ss nment o nterest.
. here the . e 110 w consder the eases where the assgn-
Pant adds g mere renders te sut ncompete or want o
the ssgnee ...
to the ut. partes and the part conductng- the sut s desrous
o remed ng such de ect.
here the as- t sometmes happens that ether rom the ds-
sgnment honest o the asso nor or rom ts beno- rea doubt-
uestonabe. . .
u whether the transacton amounted to an assgn-
ment or not the act o assgnment s a ueston n
dspute between the assgnor and assgnee. ere o
course the pant has no ntenton o abandonng hs
sut and he w accordng as he thnks best ether
contnue the sut as nothng had happened treatng
the pretended assgnment as a nut or ese make
the new camant a part n respect o hs cams.
he chooses to brng the pretended assgnee be ore the
ourt he must do so b that speces o b hch we
aread know under the name o a suppementa b
not restatng hs case de no o because the assgnee
he be one must o course take sub ect to a the t-
gaton n whch the nterest he has ac ured s n-
o ed but mere mentonng the orgna b and
the proceedngs under t and then statng the e ent on
whch the assgnee buds hs cam and the cam so
ounded upon t and chargng that such e ent dd not
amount to an assgnment and that the de endant has
n act no nterest n the matter but that on account
o hs cams he s a necessar part to the sut. To
such a b the pretended assgnee w be the on
necessar de endant uness there s an thng n the
statements whch a ects the nterests o the ormer
de endants. nd the proceedngs on ths b w be
smar to those aread mentoned wth regard to the
suppementa bs whch orm the sub ect o the se-
cond chapter.
-at T on ormab to what has been sad a soe pant
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p
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Original from
DI gitized by
{ o X ) Ld. Rd. ed. 4, p. 67.
(y) Ibid.
(u) Lo wndes v. Taylo r, 1816,
1 Madd. 423; Semple v. L. 8j B.
Rail1cay c, 183 ,9 im.209.
becomin . bankruj t may him e1f proceed with his uit, II. "I ere the
if he el i putes the val idity of the commission' 01' if Pl ainti~ add
. . . ..'. ' the As ignee
whil e he al l ows the val idity of the cormm ion, I I I to the uit.
as ignee do not think fit to pro ecute the uit , and ~;--'
I :>
he conceives that it is for his advantage to pro ecute bankruptmay
. . I h proceed with
I t(u); under those CIrcumstances 10'WC\'er e must hIS own suit.
bring the assignees before the Court by suppl emental
bil l , as in the former case the fact of his 'bankruptcy,
though he may dispute the val idity of it, is too noto-
rious and material a fact to be passed o ver in sil ence;
and in the l atter case, any benefit which may be ue-
rived from the suit must be subject to the demands of
the as ignees (x). If however he is continuing the
suit, as he may do, merel y for his personal protection
against a demand not proved under the corn mi sion,
the assignees wil l not be necessary parties (y).
If a ol e pl aintiff makes a partial assignment onl y, Partial a sign-
uch a a l ease. or a mortgage of the whol e, or an ab- ~:~~tfJ . a ol e
ol ute conveyance o a part, of the premises in ques-
tion, this circumstance wil l not, as in the case of a
total assignment, precl ude ~the pl aintiff from con-
tinuing hi suit. He wil l stil l have a motive for pro-
ceeding; and if he does so, he ought to make his
assignee a party to the suit. This he may do by fil ing
a suppl emental bil l against him, as in tl re case al ready
noticed of a person cl aiming under an al l eged total
a ignment. He cannot, it i apprehended, make hi.
a '31'nee a co-pl aintiff with himsel f, except by fil ing an
original bil l , for which expense there woul d be 110
motive.
Where a co -plaintiff as igns pendente lite, the ca. e A ignment by
j 11 arl y . imil ar to that of a ol e pl aintiff making a a co-pl aintiff,
1 : ) 1 Of A ...ignment o f Interest.
ssgnment o nterest. 1 1
becomng bankrupt ma use roceed wt s sut . here the
he dsputes the adt o the commsson or P - dds
we he aows the adt o the commsson hs to the ut.
assgnees do not thnk t to prosecute the sut and

he conce es that t s or hs ad antage to prosecute bankrupt ma
. . proceed wth
t M nnder those crcumstances howe er e must g 5
brng the assgnees be ore the ourt b suppementa
b as n the ormer case the act o hs bankruptc
though he ma ds ute the adt o t s too noto-
rous and matera a act to be passed o er n sence
and n the atter case an bene t whch ma be de-
r ed rom the sut must be sub ect to the demands o
the assgnees .r . howe er he s contnung the
sut as he ma do mere o hs persona p otecton
aganst a demand not pro ed under the commsson
the assgnees w not be necessar partes .
a soe pant makes a parta assgnment on Parta assgn-
such as a ease or a mortgage o the whoe or an ab- a n
soute con e ance o a part o the premses n ues-
ton ths crcumstance w not as n the case o a
tota assgnment precude the pant rom con-
tnung hs sut. e w st ha e a mot e or pro-
ceedng and he does so he ought to make hs
assgnee a part to the sut. Ths he ma do b ng
a suppementa b aganst hm as n the case aread
notced o a person camng under an aeged tota
assgnment. e cannot t s apprehended make hs
assgnee a co-pant wth hmse e cept b ng an
orgna b or whch e pense there woud be no
mot e.
here a co-pant assgns pendente te the case ssgnment b
s near smar to that o a soe pant makng P
- o
: m owndes . Ta or 1 16 d. d. ed. 4. p. 67.
1 Madd. 423 enpe . . . t/ bd.
r.awa o. 1 3 9 m. 209.
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Original from
01ginzed by
(c) Manson v. Burton, 1842, 1
Y. & ColI. C. C. 626.
(z) 1787, 2Bro. C. C. 186.
(a) 1794,2 Anst. 458.
(0) 1804, 9Yes. 615.
Where defend-
ant assigns be-
fore appear-
ance.
II. Where the partial assignment or an incumbrance; and it will be
Plaintiff adds I
the Assignee guided by the same TU es, mutatis mutandis, as have
to the Suit. been already given in respect of the latter case.
"'-.,--- If a defendant makes an assianrnent or incum-
Assignment by o...J
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 abill
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
~~!:re~~~es plaintiff need not go on with the suit by filing a sup-
pla~ntiff may plernental bill against the assignees, but he may dis-
gOlD under the . hi bill d . d I b k I
bankruptcy. mISS IS 1 an go III un er tre an ruptcy. t seems
doubtful whether the bill will be dismissed inthis case
without costs. In the somewhat analogous case of
Knox v. Brown (z), where the defendant yielded to the
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 Monteith
v. Taylor(b) 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 bedismissed, if at all,
in the ordinary way for want of prosecution (c).
If adefendant assigns his interest before appearance
to the bill, it cannot be called an assignment pendente
lite, because a suit does not exist against aparty until
1 2 ssgnmen t o nterest.
. here the parta assgnment or an ncumbrance and t w be
thrssg nee guded b the same rues mutats mutands as ha e
to the ut been aread g en n respect o the atter case.
. . a de endant makes an assgnment or ncum-
ssgnment b _ _
a de endant brance and the assgnee or ncumbrancer s to be
brought be ore the ourt t s not necessar to com-
mence de no o aganst hm b orgna b because
he cams under the orgna part . The pant ma
contnue hs own sut aganst the new part b a b
re errng to the orgna b and mere puttng n
ssue the assgnment or ncumbrance n other words
b a suppementa b.
here de end- a de endant becomes bankrupt pendente te the
bankru pr pant need not go on wth the sut b ng a sup-
pant ma pementa b aganst the assgnees but he ma ds-
bankruptc . under the bankruptc . t seems
doubt u whether the b w be dsmssed n ths case
wthout costs. n the somewhat anaogous case o
no . rown where the de endant eded to te
demands o the pant a ter the b was ed ord
Thurow permtted t sa ng that t was b the act o
the de endant hmse that the ob ect o the sut was
gone but n uther ord . Mer a and n Moneth
. Ta or h the ourt re used to dsmss the b
wthout costs. howe er the pant pre ers pro-
secutng the sut the bankrupt de endant cannot com-
pe hm to brng hs assgnees be ore the ourt n a
g en tme. The b can on be dsmssed at a
n the ordnar wa or want o prosecuton c .
here de end- a de endant assgns hs nterest be ore ap earance
oreT Tr- cannot be caed an assgnment enc ew e
ance. te because a sut does not e st aganst a part unt
17 7 2 ro. . . 1 6. c Manson . urton 1 42 1
a 1794 2 nst. 45 . . o. . 626.
b 1 04 9 es. 615.
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Original from
Digiti zed by
(e) Barrow v. Hobhollse, 1835,
13 Law J. 218.
(d) Alt. Gen. v. Foster, 1 42,
6Jurist, 1032; vide etiam S. C.
2 Hare, 81.
he has entered an appearance. In this case, therefore, II. Where the
. . h d d h t 1 d J :! d '11 Plaintiff adds
It 1 appre en eta sue 1 eren ant must str ap- the Assignee
pear and answer the bill, and that, upon his stating to the Suit.
the assignment in his answer, the plaintiff mu t add '--.---I
the assignee to the suit by supplemental bill.
Where an information was filed against the trustees Case of new
f C
d f h di d d trustees of a
o a harity, an some 0 t em Ie ,an new trustee Charity ap-
were appointed and conveyances made to them by the pointed in the
. . . place of former
survlvmg trustees before the heanng, and after the trustees de-
hearing and decree they were brought before the Court fendants.
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 ituation 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 upplemental information, and not by a supple-
mental information merely C d ).
It appears that one supplemental bill will not sup- One supple-
I 1 d
J :!' 1 . Th mental bill will
P Y t re elect Inmore t ran one suit. us where two not supply a
suit were instituted for the administration of an estate defect in two
, it
I I
,. d 1'" I SlU s.
name y a egatees suit an a crec itors suit, ane 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
again t the purchaser, Corral}, who accordingly paid
183 Of Assignment of Interest,
he has entered an appearance. n ths case there ore . here the
t s apprehended that such de endant must st ap- 2
pear and answer the b and that upon hs statng to the ut.
the assgnment n hs answer the pant must add
the assgnee to the sut b suppementa b.
here an n ormaton was ed aganst the trustees ase o new
o a hart and some o them ded and new trustees char a -
were apponted and con e ances made to them b the ponted u the
sur ng trustees be ore the hearng and a ter the -ustees de-
hearng and decree the were brought be ore the ourt Pendants
b a suppementa n ormaton pra ng the same ree
aganst them as was pra ed b the orgna n orma-
ton aganst ther predecessors the were hed to be
not n the same stuaton as purchasers pendente te
but as camng b ndependent tte and there ore
not bound b the answers o the ormer trustees a-
though not entre una ected b them. n ths case
there ore t seems that the new trustees ought to ha e
been brought b orgna n ormaton n the nature
o a suppementa n ormaton and not b a suppe-
menta n ormaton mere d .
t appears that one suppementa b w not sup- ne suppe-
p the de ect n more than one sut. Thus where two oTsupp T
suts were nsttuted or the admnstraton o an estate e ect n two
name a egatees sut and a credtors sut and one
decree was taken b consent n both suts and then
both suts became de ect e t was hed that a separate
suppementa b must be ed n each sut and that
one order mght then be made n both suts e .
o where a endor atte obtaned a decree or
spec c per ormance o a contract or sae o an estate
aganst the purchaser orra who accordng pad
d t. Gen. . oster 1 42 e arrow . obhouse 1 35
6 urst 1032 de etam . . 13 aw . 21 .
2 are 1.
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Oriqinal from
DI itized by
(g) 1837, 9 Sim. 72. (f) Cattell v. Correll, 1841,
1Hare, 216.
Form of the
upplernental
bill.
II. Where the the purchase money into Court to the credit of the
Plaintiff adds
the Assignee cause; and afterwards a second suit V\ as instituted by
to the Suit. Rowlatt azainst Cattell and Corrall inak inz a claim
"-v---I 0 ';:,
to the purchase money; .and Cattell having become
insolvent and an assignee being appointed, RowIatt
brought the assignee before the Court by a supple-
mental bill to his own original bill; on a motion
by Corral l to have the purchase money refunded to
him on Cattell's having refused to execute a proper
conveyance tendered to him by Corrall , Sir J ames
Wigrarn, 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 snit 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
RowIatt 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 cau e of Cattell v. Corrall,
in which he is not a party. I must assume it to be pos-
sible that at the hearing of the cau e in which Row-
latt is plaintiff his bills may he dismissed; and in that
case the cause of Cattell v. Corrall will remain defec-
tive, as it was before the supplemental bill of RowIatt
wa filed, and as it till is(f)."
As to the fOI'111 of the supplemental bill ;--in this, as
in other cases, it ought to state only so much of the
former proceedings as is nece:sary to make an intel-
ligible story and hew that the plaintiff has an equity.
Thus in Viqers v. A udley (g), where an inj unction was
.ranted against the directors of a Company, and after-
Of Assiflnment of Interest.
184
1 4 ssgnnent o nterest.
. here the te purchase mone nto ourt to te credt o the
e s g ne e ause and a terwards a second sut was nsttuted b
to the ut. owhtt aganst atte and orra makno- a cam
to the purchase mone and atte ha ng become
nso ent and an assgnee beng apponted o att
brought the assgnee be ore the ourt b a suppe-
menta b to hs own orgna b on a moton
b orra to ha e the purchase mone re unded to
hm on atte s ha ng re used to e ecute a proper
con e ance tendered to hm b orra r ames
gram . sad The ob ect o the moton s
to dea wth unds whch stand to the credt o the
cause n whch atte s the pant . There s at
present no proceedng b an part n the sut nst-
tuted b atte or b the assgnee o atte to
remed the de ect occasoned b hs nso enc . am
n ormed and t s not n act dened that the tte o
owatt s dsputed and cannot there ore be ore
an decree s made n hs cause estabshng that tte
consder or treat hm as a person whose sut has re-
meded the de ect n the cause o atte . orra
n wch he s not a part . must assume t to be pos-
sbe that at the hearng o the causes n whch ow-
att s pant hs bs ma be dsmssed and n that
case the cause o atte . orra w reman de ec-
t e as t was be ore the suppementa b o owatt
was ed and as t st s / .
orm o the s to the om o the suppementa b n ths as
suppementa . - . 1 .
ormer proceedngs as s necessar to make an nte-
gbe stor and shew that the pant has an e ut .
Thus n /ers . me g where an n uncton was
granted aganst the drectors o a ompan and a ter-
/ atte . orra 1 41 1 37 9 m. 72.
1 are 21 .
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Original from
Digiti zed by
ward a new director was appointed \ ho attern pted to II. \, here the
infr in 'e the injunction and the plaintiff filed a 'Ul)- Plainti~ add
o . .,' .. the A ignee
plemental bil l agam t him, commencll1g hi statement: to the Suit.
with the granting of the injunction, Sir L. Shadwell, '--v----I
V. C., held thi statement to be quite sufficient, ol -
sen ing that" it is not necessary for a plaintiff, when
he file a supplemen tal bill, to state in it all the cir-
cumstances of the case at length. All that is requisite
i ,that he should state so much of the case as shew
that there was an equity; and as the plaintiffs in this
ca e have stated that the J udges of the Court have
granted injunctions in the prior tages of the cau e, they
have stated sufficient to shew that there was an equity."
After stating' the subsequent proceedings, and the
a signment, the bill will pray for the same relief against
the a signee, as might have been had against the as-
signor if he had not assigned (It).
The rule as to the parties to the supplemental bill Parties.
seem to be the same as hs s 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
mu t be parties to it, but if it is to bring the assignee
of a defendant, the original defendants seem not to be
neces ary parties.
Thus where, in a suit against trustees and executors
for an account, aco-plaintiff mortgaged his intere t and
became in olvent pending the uit, and asupplemental
bill wa flied by the other co-plaintiffs against the
mortgag e and the pro, i ional a ignee alone, Lord
(h) For a precedent of this sort of bill, seethe Appendix, No, XVII.
] 8~
OJ Assignment of Interest.
wards a new drector was apponted who attempted to . here the
n rno-e te n uncton and the pant ed a .s- t adds
c _ 1 the ssgnee
pcmenta b a anst hm conmencnp hs statements to the ut.
wth the grantng o the n uncton r . hadwe
hed ths statement to be ute su cent ob-
ser ng that t s not necessar or a pant when
he es a suppementa b to state n t a the cr-
cumstances o the case at ength. that s re uste
s that he shoud state so much o the case as shews
that there was an e ut and as the pant s n ths
case ha e stated that the udges o the ourt ha e
granted n unctons n the pror stages o the cause the
ha e stated su cent to shew that there was an e ut .
ter statng the subse uent proceedngs and the
assgnment the b w pra or the same ree aganst
the assgnee as mght ha e been had aganst the as-
sgnor he had not assgned h .
The rue as to the partes to the suppementa b Partes
seems to be the same as has been aread g en wth
respect to the other speces o suppementa bs.
the orgna co-pant s must be made partes because
no co-pant ought to take an step n the sut wth-
out g ng the others an opportunt o dssentng rom
t and as to the orgna de endants the suppe-
menta b s ed to brng be ore the ourt the as-
sgnee o a co-pant a the orgna de endants
must be partes to t but t s to brng the assgnee
o a de endant the orgna de endants seem not to be
necessar partes.
Thus where n a sut aganst trustees and e ecutors
or an account a co-pant mortgaged hs nterest and
became nso ent pendng the sut and a suppementa
b was ed b the other co-pant s aganst the
mortgagee and the pro sona assgnee aone. ord
h or a precedent o ths sort o b see the ppend o. .
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Original from
DI _ itized by
(i) Peary v. Stephenson, 1838, 1Beav. 42.
II. Wherethe Langdale, M. R., allowed an objection that the origi-
t
PhlaiAntia: adds nal defendants were not made parties to the supple-
e ssignee
to theSuit. mental bill, saying; "An accounting party ought to
'-.,-' know who it is that calls upon him for an account.
The caseisjust as simpIeas this ;-a party calls for an
account, and the defendant, at the hearing, is ready to
account, and heis 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 yel'y 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 bead-
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-
elves should alone be stated and proved, and not the
OJ Assignment of Interest. 186
. here the angdae M. . aowed an ob ecton that the org-
Pant adds na de endants were not made partes to the suppe-
the ssgnee . . k . . a
to the ut. menta b sa ng n accountng part ought to
know who t s that cas upon hm or an account.
The case s ust as smpe as ths a part cas or an
account and the de endant at the hearng s read to
account and he s then or the rst tme n ormed that
some o the pant s ha e no rght to ca or such
account or that one o them has trans erred hs rght
to some one ese o whom the accountng part ne er
heard be ore. s t possbe to support a record n
such a state regret the e tra e pense to whch the
partes w be put b aowng the ob ecton but t
woud be much more to be regretted an accountng
part were to be gnorant to whom he s to account
up to the er tme o the hearng The case o a
de endant s nterest beng trans erred s er d erent
or the pant s reman the same to the end. n the
cases re erred to where the nterest o one o the
de endants was trans erred the on thng necessar
was that the pant shoud brng be ore the ourt a
proper substtute or such partes .
dence. s to the e dence necessar n the suppementa
sut t s ounded on the same rues as those respect-
ng the statements necessar n the suppementa b
or n the orgna b n the nature o a suppementa
b b whch the suppementa sut s nsttuted.
er matera act stated n ether b must be ad-
mtted or pro ed and the true ueston there ore on
ths pont s what are the acts matera to be stated
n the b ed b or aganst the assgnee. To the
e tent to whch the new part s bound b the pro-
ceedngs n the orgna sut the proceedngs them-
se es shoud aone be stated and pro ed and not the
ear . tephenson 1 3 1 ea . 42.
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Original from
Digitized by
2Moll. 361.
(n) 1741, Barnard. Ch. 450;
vide S. C., 2Atk. 174, where it is
called Garth v. Ward.
(k) 1Dan. Ch. Pro 255.
(l) Hitchens v. Congreve, 1831,
4 Sim. 420.
(m) Ormsby v. Palmer, 1 25,
original facts which were the foundation of those pro- II. Where the
ceedings. Plainti~ adds
. . . ilie~~~~
The assignee IS of course bound by the evidence to the Suit.
taken previously to the assignment; but not by any ~
which may have been taken after the assignment and assignee is
dd d 1
. T bound by the
before he has been a e to t re SUIt. bus where evidence.
the assignees of a bankrupt defendant are brought
before the Court by supplemental bill, evidence taken
in the original suit previously to the bankruptcy, may
be read at the bearing against the assignees (k); but
where it appeared tbat some of the witnesses had been
examined after the commission had issued, and before
the supplemental cau ewas at issue, the Court allowed
an objection to reading their depositions. So far,
however, a the objection extended to the depo itions
pre ious to the commission, it was overruled (l).
So the a ignees 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 (m).
Garth v. Crawford (n) 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, Peter, and
IVIrs.Turner filed a bill against Sarah Garth, to per-
petuate the testimony of witnesses and to prove the
will. In J une 1736 Crawford purcha ed the interest
187 Of Assignment of Interest,
orgna acts whch were the oundaton o those pro- . here the
opp np-s Pant adds
eeamg . ssgnee
The assgnee s o course bound b the e dence to the ut.
taken pre ous to the assgnment but not b an
whch ma ha e been taken a ter the assgnment and assgnee s
be ore he has been added to the sut. Thus were e dence.
the assgnees o a bankrupt de endant are brought
be ore the ourt b suppementa b e dence taken
n the orgna sut pre ous to the bankru tc ma
be read at the hearng aganst the assgnees but
where t appeared that some o the wtnesses had been
e amned a ter the commsson had ssued and be ore
the suppementa cause as at ssue the ourt aowed
an ob ecton to readng ther depostons. o ar
howe er as the ob ecton e tended to the depostons
pre ous to the commsson t was o errued / .
o the assgnees o a bankrupt de endant brought
be ore the ourt b suppementa b are bound b
the accounts taken be ore the bankruptc and cannot
go nto them agan. ut the are not bound b the
accounts taken a ter the de endant became bankrupt
and be ore the were made partes 0-
Garth . rao ordn s an mportant case on ths
pont. n that case a testatr had de sed her rea
estate to be sod and the proceeds to be d ded
between raw ord Peters and Mrs. Turner. he
ded n 1735 ea ng arah Garth her her at aw.
n pr 1736 Mrs. Turner mortgaged her e pectant
share to s. n Ma 1736 raw ord Peters and
Mrs. Turner ed a b aganst arah Garth to per-
petuate the testmon o wtnesses and to pro e the
w. n une 1736 raw ord purchased the nterest
1 Dan. h. Pr. 255. 2 Mo. 361.
0 tchens . ongre e 1 31 n 1741 arnard. h. 450
4 m. 420. de . 2 tk. 174 where t s
n rmsb . Pamer 1 25 caed Garth . ard.
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Oriqin I m
C , rnzed b
II. Where the of Peters under the will, and on the 3nl of J anuary
PhlainAti~adds 1737 Wil lis purchased _Mrs. Turner' equity of re-
te ssignee
to the Suit. demption. On the 8t!1 of J anuary 1737 Sarah Garth
'--:---v--' put in her answer, insisting that Peters and Mrs,
Turner were papists, and therefore incapable of taking
any thing under the will. Afterwards Sarah Garth
filed anew bill against Crawford, Peters, Mrs. Turner,
and Willis, to set aside the 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 the former cause
should be read at the hearing; but all objection was
taken by \Villis 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 M1'8. Turner before the filing of the first bill, and
his purchase .of 1\1J 'S. Turner's equity of redemption
had been made before Sarah Garth bad 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 respect 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-
gui h between the mortgage which was made to Willi,
and the purchase which was made by him of the
equity of redern ption; 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-
demption, which was made subsequently to the filing
of that bill, the depo: itions oug-ht to be read. For
Of Assiqnment of Interest. 188
.
1 ssh rment o nterest.
. here the o Peters nuce the w and on te 3r o annar
Pant adds 1737 s purcasec Mrs. Turner s cant o re-
the ssgnee - 1 /- 1
to the ut enpton. n the th 01 anuar 1737 arah Garth
put n her ans er nsstng that Peters and Mrs.
Turner were papsts and there ore ncapabe o takng
an thng under the w. terwards arah Garth
ed a new b aganst raw ord Peters Mrs. Turner
and s to set asde te w as to the g ts to
Peters and Mrs. Turner to whch the de endants
put n ther answers. n order was made n the
cause that the depostons taken n te ormer cause
shoud be read at the hearng but an ob ecton was
taken b s that the depostons coud not be read
aganst hm because he had ne er been a part to the
ormer sut and the mortgage had been made to hm
b Mrs. Turner be ore the ng o te rst b and
hs purchase o Mrs. Turner s e ut o redempton
ad been made be ore arah Garth had put n her
answer to that b.
ord ardwcke sad that hs opnon was that
these depostons ought to be read. That ths was a
ueston o er great conse uence n -espect o bs
whch were brought to perpetuate testmon and
he shoud dsaow the depostons to be read n the
present case t woud o erturn the whoe use o these
knd o bs. ut n sa ng ths he woud dstn-
gush between the mortgage whch was made to s
and the purchase whch was made b hm o the
e ut o redempton or as to the mortgage t was
stated to ha e been made be ore the ng o the rst
b and there ore none o the depostons whch were
taken n that cause coud an wa s be read to a ect t.
ut wth regard to the purchase o the e ut o re-
dem ton whch was made subse uent to the ng
o that b the depostons ought to be read. or
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Original from
Digitized by
the bill was brought in May 1836; -it wa: a bill II. Where the
. . . Plaintiff adds
brought by three devis ee 111order to perpetuate te tl- the A signee
mony, and to prove a will of real e tate, and that i. to the. uit.
the only method of proving a will of that sort in thi '---v---'
kingdom. The an wer of Sarah Garth came in on the
8th of Janual'y following. It has been aid that 011
the 3rd of J anuary the purchase of the equity of re-
demption was made, which was before the time wh n
the answer came in, and from thence it has been
urged t.hat the depositions which were afterwards
taken shall not affect this purchase. But though the
bill wa filed in May, and the answer diu not come in
ti11the 8th of J anuary following, yet that part of the
objection i no rea on again t allowing the depo itions
to be read ; for it Yery often happen, by the ordinary
indulgences which are given to the putting in of an-
swer , that an an wer does not come in to a bill till
that eli tance of time; nor will the other part of the
objection, namely, that the purchase was made before
the coming in of tlie answer, be material. .The que -
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 ha 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 wa not such a bill a could be brought
to a hearing, and therefore that it could not properly
create a lis pendens, 0a to affect a purchaser claim-
ing under one of the e parties after the filing of the
bill; but till it was such a suit that the proceedings
under it, when rio'htly carried on, lllU t affect those
who claim a purcha ers from one of the partie after
the filing of the bill. It i of great con equence that
bill of that kind hould be upported; but if these
189
the b was brouo-t n Ma 1 36 t was a b n. here the
1 . 1 . .. . . . Pant adds
brought b three de sees m order to perpetuate test- g ssgnee
mon and to pro e a w o rea estate and that s t o the ut.
the on method o pro n a w o that sort n ths
kns:dom. The answer o arah Garth came n on the
t o anuar oowng. t has been sad that on
the 3rd o anuar the purchase o the e ut o re-
dempton was made whch was be ore the tme weu
the answer came n and rom thence t has been
urged that the depostons whch were a terwards
taken sha not a ect ts purchase. ut thoug the
b was ed n Ma and the answer dd not come n
t the th o anuar oowng et that part o the
ob ecton s no reason aganst aowng the depostons
to be read or t er o ten happens b the ordnar
ndugences whch are g en to the puttng n o an-
swers that an answer does not come n to a b t
that dstance o tme nor w the other part o the
ob ecton name that the purchase was made be ore
the comng n o the answer be matera. The ues-
ton s whether the depostons n ths case ought not
to be read aganst a person who cams under one o
those who were pant s to that b. t has been
made an ob ecton that that was a b mere brought
to perpetuate testmon and to pro e the w and
that no ree was pra ed under t : and t s ndeed
true that that was not such a b as coud be brought
to a hearng and there ore that t coud not proper
create a s pendens so as to a ect a purchaser cam-
ng under one o these partes a ter the ng o the
b but st t was such a sut that the proceedngs
under t when rght carred on must a ect those
who cam as purchasers rom one o the partes a ter
the ng o the b. t s o great conse uence that
bs o that knd shoud be supported but these
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n In I
DI itized b
(0) For the form of adecreeon this sort of bill, see the Appendix,
No. XVIII.
II. Where the depositions are not to be read, it would be in the
Plaintiff adds f . 1 I' I" h .
the Assignee power 0 eit rer a cevisee, 01' a person c aimmg as ell'
to the Suit. at law, to prevent such a bill being of any effect.
'-v--I "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 isjust 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 abenefit 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 (0), with respect to this sort
of supplemental bill, seem to be the same as those
. here the depostons are not to be read t woud be n the
Pant adds o
the ssgnee power 01 ether a de see or a person camng as her
t o the ut. r 2 to pre ent such a b beng o an e ect.
w rst consder the case o an her at aw.
uppose an her gets nto possesson o an estate on
the death o hs ancestor and the de see that s out
o possesson brngs a b to perpetuate testmon
and to pro e the w. The her at aw makes a secret
con e ance to another person pendng that sut.
the depostons taken n that cause coud not be read
aganst the person who cams under the her at aw
t woud de eat the whoe bene t o the sut. The
case s ust the same n respect o ts conse uences
a de see gets nto possesson and brngs a b o ths
sort and a terwards makes a pr ate con e ance :
the her at aw coud not read the depostons whch
were taken n that cause aganst the part who cams
under the de see the brngng that b woud be o
no manner o e ect. The brngng a b o that
sort b a de see s a chaenge to the her at aw to
dspute the tte wth hm and he does dspute t
name b e amnng wtnesses o hs own the con-
se uence s that he oses hs costs because b e -
amnng such wtnesses he has a bene t o the sut as
we as the de see. These were the reasons upon
whch s ordshp s opnon was che ounded
that the depostons n the present case ought to be
read aganst s and the were read aganst hm
accordng .
The rues as to the proper manner o nttung
the e dence and aso as to the de ence settng down
or hearng and decree o wth respect to ths sort
o suppementa b seem to be the same as those
o or the orm o a decree on ths sort o b see the ppend
o. .
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Original from
Digitized b
already given in the second chapter of this treati e, II. Where the
, h h 1 1 bill d f' Plaintiff adds
WIt re pect to t e supp ementa 1 S treate 0 III the Assignee
that place. to the Suit.
'-v---I
After a decree the defendant, or any of them, may, A defendant
if they think proper, bring the assignee before the may bring for-
Court by a new bill. Thus where, after decree, a de- :s~~:nt:eeafter
fendant, CorraIl, 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
J ame WigTam, V. C., said; "I cannot permit Corrall
to make the in 01vencyof Cattell a reason for suspend-
ing indefinitely hi 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 him 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, aplaintiff 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 doesnot apply, be-
cause the party filing the new bill is not the assignee,
but a per on who has been made a defendant because
he sets up a claim. I tisalso apprehended that in this
ca e notice mu t be given to the original plaintiff, in
order to give him an opportunity of filing the upple-
mental bill him elf if he prefers it.
In the above ca e of Cattell v. Corrall, Hi Honor
appears to have thought that it would not be nece -
sary to wait until a decree had been made in the up-
(p) Cattell v. Corrall, 1841, 1Hare, 216.
191 Of A signment of Interest.
aread g en n the second chapter o ths treatse . here the
o 1 1 -11 1 Pant adds
wt respect to the suppementa bs treated ot n ssgnee
to the ut.
that pace .
ter a decree the de endants or an o them ma de endant
the thnk proper brng the assgnee be ore the ma brng or-
ourt b a new b. Thus where a ter decree a de- TsTgnee ter
endant orra had g en notce to the pant decree.
atte o an ntended moton and be ore the moton
was made atte became nso ent and an assgnee
o hs estate was apponted on atte s re urng that
the moton shoud be ether made or abandoned r
ames gram . sad cannot permt orra
to make the nso enc o atte a reason or suspend-
ng nde nte hs present moton and as he ma b
the practce o the ourt e a b to make the cause
o atte . orra per ect sha re ure hra to do
so orthwth or entertan the appcaton o the other
partes to be ree ed rom the pendenc o the no-
tce p . t s apprehended that such a b w be
a suppementa b mere ounded upon the decree
and not upon the merts o the case because as we
ha e seen pant ma contnue hs sut aganst an
assgnee b such a b and a ter decree a partes
are e ua actors and consdered as pant s. The
ob ecton arsng rom mantenance does not app be-
cause the part ng the new b s not the assgnee
but a person who has been made a de endant because
he sets up a cam. t s aso apprehended that n ths
case notce must be g en to the orgna pant n
order to g e hm an opportunt o ng the suppe-
menta b hmse he pre ers t.
n the abo e case o atte . orra s onor
appears to ha e thought that t woud not be neces-
sar to wat unt a decree had been made n the sup-
p atte . orra 1 41 1 are 216.
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n In I from
Digitized by
v. Hm'ris, 1842,1 Y. &ColI. C. C.
230.
(q) 1 Atk. 9.
(r) 1 20, 5 Madd. 91.
(s) 1 Atk. 89; vide etiam Eades
II. "here the plemental suit,. before the pending motion could be
Plaintiff adds
the Assignee entertained, but that the appearance of the assignee
to the Suit. would be sufficient for that purpose. He declined
'-v---Ihowever giving any positive opinion on that point.
Assignee It must be observed here that the new party to
comes in
pro bono et whom the interest of any party has been transmitted,
malo. stands in the same plight and condition pro bono et malo
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 (q)." Thus in }Vlzitcomb 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 t.hesupplemen-
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 upplemental
bill (s).
III. Where the III. Sometimes after decree a sole plaintiff enter'
Assiznee adds . fl' I . . d b f 1 1 h
hims~lf to the into some transaction 0 W HC 1 It IS ou t U WJ et er
uit, it is an assignment of hi interest or not; or he makes
'-v---Ionly a partial assignment of his interest, or a co-plain-
tiff or a defendant makes an assignment, and the party
conducting the suit being unwilling to notice uch
a signment, or having 110 occasion to do so, his right
not being affected thereby omits to make the a signee
192
. here the peenta sut be ore the pendng moton coud be
the ssgnee entertaned but that the appearance o the assgnee
t o the ut. woud be su cent or that purpose. e decned
owe er g ng an post e opnon on that pont.
ssgnee t must be obser ed here that the new part to
pro bono et wom the nterest o an part has been transmtted
- stands n the same pght and condton pro bono et maa
as the ormer part . e s bound b hs acts and n
the case at east o a bankrupt s assgnees s abe to
a the costs o hs predecessor as we as hs own
costs though the matter has been twent ears n
contro ers g . Thus n htcomh Mnchn r t
was sad that the assgnees o a bankrupt de endant
brought b suppementa b mght be abe to the
costs o the whoe sut the mproper ressted the
pant s demand but as t appeared n that case that
the pant had made no appcaton to them on the
sub ect o the sut pre ous to ng the suppemen-
ta b the costs were re used.
The abo e rue appears to app as much to an
assgnee who adopts the orgna sut b takng the be-
ne t o t n a suppementa sut as to an assgnee
who s added to the orgna sut b suppementa
b s .
. here the . ometmes a ter decree a soe pant enters
hmse to the some transacton o whch t s doubt u whether
- t s an assgnment o hs nterest or not or he makes
on a parta assgnment o hs nterest or a co-pan-
t or a de endant makes an assgnment and the part
conductng the sut beng unwng to notce such
assgnment or ha ng no occason to do so hs rghts
not beng a ected thereb omts to make the assgnee
1 tk. 9. . arrs 1 42 1 . o. . .
r 1 20 5 Madd. 91. 2 0.
. 1 tk. de etam ades
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Original from
U N I V E R S I T Y 0 F C A U F O R N I I I .
Digitized by
(u) Russell v. Sharp, 1 13, 1Y.
o B. 500.
(t) Toosey v. Burchell, 121,
J ac. 159. F or the order in thi
cause, see the Appendix, TO . XIX.
o
a party to his suit, although the latter may have an III. Where the
intere t ill being brought before the Court. In thi A,ssigneeadds
himself to the
ca e the a signee is not alway driven to file a bill, but Suit.
may sometimes secure his rights by other mean. H"-...---J
emay some-
Thus where there is a fund in Court, he may obtain, by times come in
P
etition an order commonly called a Stop O rder pro- witho~t filing
, ; 'any bill,
viding that the as ignor hall not take the fund out of
Court without notice to the petitioner. So if a pur-
chaoer wi hes to attend the Master under a decree" he
may obtain an order to do so, if the order is qualified
othat the plaintiff is not precluded from his remedie
again t the purchaser; the order being at the expense
of the purcha er (t).
I t is not always, however, that this indulgence i
granted. Thus where, after the usual decree for
account against executor, one of them became bank-
rupt, and the a signees petitioned for liberty to go
before the Master on taking the accounts, and to be
admitted on behalf of the bankrupt' creditor to up-
port hi discharge, the order wa refu ed, on the erro-
neous ground, however, of the bankruptcy having
cau ed an abatement (zz).
In cases, therefore, in which a petition doe not lie, O therwise he
the a ignee i under the nece ity of filinz a new bill files a ?~w bill,
. o. ' after glVlng
and as he cannot, from the doctrine of maintenance notice to the
already mentioned, literally continue the uit, he plaintiff.
mu t by hi new bill make out hi whole ca e for
relief and a k for the benefit of the former decree.
A however the granting of such a prayer would be
in effect giving him the conduct of another per'on
suit, while that other per on i till capable of pro e-
cuting it, and intend to do so, the as ignee mu t, pre-
193 OJ Assignment of Interest.
a part to hs sut athough the atter ma ha e an . here the
nterest n bener brouo:ht be ore the ourt. n ths .
o hmse to the
case the assgnee s not awa s dr en to e a b but ut.
ma sometmes secure hs r hts b other means.
nus where there s a unc m ourt he ma obtan b tmes come n
petton an order common caed a top rder pro-
dng- that the assgnor sha not take the und out o
ourt wthout notce to the pettoner. o a pur-
chaser wshes to attend the Master under a decree he
ma obtan an order to do so the order s ua ed
so that the pant s not precuded rom hs remedes
aganst the purchaser the order beng at the e pense
o the purchaser t .
t s not awa s howe er that ths ndugence s
granted. Thus where a ter the usua decree or
account aganst e ecutors one o them became bank-
rupt and the assgnees pettoned or bert to go
be ore the Master on takng the accounts and to be
admtted on beha o the bankrupt s credtors to sup-
port hs dscharge the order was re used on the erro-
neous ground howe er o the bankruptc ha ng
caused an abatement u .
n cases there ore n whch a petton does not e. therwse he
the asso-nee s under the necesst o ng a new b : pew b
o . er g ng
and as he cannot rom the doctrne o ma tenance notce to the
aread mentoned tera contnue the sut he P -
must b hs new b make out hs whoe case or
ree and ask or the bene t o the ormer decree.
s howe er the grantng o such a pra er woud be
n e ect g ng hm the conduct o another person s
sut whe that other person s st ca2 abe o prose-
cutng t and ntends to do so the assgnee must pre-
0 Toose/ . urche 1 21 m usse . harp .
ac. 159. or the order n ths . 500.
cause see the ppend o. .
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OrigI "I I f r II
C lgltlzed by
(y) 1833,7Sim.23l.
(z) 1837, 8Sim, 352.
(x) Philipps v. Clarke, 1833,
7 im. 231; vide etiam Foster v.
Deacon, 1821, 6Madd. 59.
III. Where the viously to filing his new bill, apply to the plaintiff in
~ssignee adds order tog'ivehimanopportunity of adding the assignee
himself to the
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 hi own suit ex). If the plaintiff, upon being served
with such notice, disregards it, the assignee will filehis
new bill, and will obtain the benefit of the proceedings
in the first suit, andliberty 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 fromthe plaintiff and giving
it to the assignee, saying; "I amof opinion that there
is a material distinction between a case like this, in
which a snpplemental bill is necessary, and a casein
which a common bill of revivor alone is necessary.
In the former case the cause must be prosecuted to a
hearing, and adecree must beobtained. Theassignee
should have applied to the plaintiff beforeheinstituted
his suit. He has brought the evil onhimself by omit-
ting to do so."
So in Booth v. Creswiche(z), where a bill had been
filed by J ones, a second mortgagee, praying to redeem
the fir t mortgagee, and to foreclose the mortgagor
OJ Assignment of Interest, 194

. here the ous to ng hs new b app to the pant n
ssgnee adds - gr to g e hm an opportunt o addng the assgnee
ut. to the rst sut b suppementa b. houd he
negect to make such an appcaton he w upon hs
beng added to the rst sut ha e to pa a the costs
o hs own sut .r . the pant upon beng ser ed
wth such notce dsregards t the assgnee w e hs
new b and w obtan the bene t o the proceedngs
n the rst sut and bert to prosecute t n the same
wa as the orgna pant mght ha e done.
Thus n Phpps . arke where a de endant
became nso ent a ter decree and hs assgnee wth-
out an pre ous appcaton to the pant ed a
b to get the bene t o the decree and a terwards
the pant brought the assgnee be ore the ourt b
suppementa b and thereupon the assgnee mo ed
that the pant s suppementa b mght be taken
o the e or rreguart r anceot hadwe
. aowed an ob ecton that ths woud be takng
the conduct o the cause rom the pant and g ng
t to the assgnee sa ng am o opnon that there
s a matera dstncton between a case ke ths n
whch a suppementa b s necessar and a case n
whch a common b o re or aone s necessar .
n the ormer case the cause must be prosecuted to a
hearng and a decree must be obtaned. The assgnee
shoud ha e apped to the pant be ore he nsttuted
hs sut. e has brought the e on hmse b omt-
tng to do so.
o n ooth . reswcke where a b had been
ed b ones a second mortgagee pra ng to redeem
the rst mortgagee and to orecose the mortgagor
.r Phpps . arke 1 33 1 33 7 m. 231.
7 m. 231 de etam osters. 1 37 m. 352.
eacon 1 21 6 Madd. 59.
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Original from
Digitized by
(b) 1813, 2Bli. 593. (a) Supra, in this chapter.
02
and ubsequent mortgagees; and after a decree had III. Where the
been made in the suit Creswicke one of the flube- ~ssignee adds
" himself to the
quent mortgagees, assigned his intere t in the mort- uit.
gaged premises to Booth, who thereupon filed a bill '-.,---J
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-
mis ed the second bill as against all the defendants
thereto except Creswicke, with costs; and ordered
that in defanlt of Creswicke's paying Booth his mort-
gage debt within a certain time, Creswicke should
stand foreclosed; -and in that ca e Booth was, as
again t Cre wicke, declared entitled, in right of his
mortgage security, to the benefit of the decree and
proceedings in the fir t suit, and to stand in the place
of and use the name of Creswick e in the further pro-
secution of the fir t suit, and inthe meantime to beat
liberty to attend the Master in taking the accounts in
that uit.
I tis apprehended that the disputed or partial assig- Howfar the
nee of asole plaintiff, or the assignee of aco-plaintiff ~~~i~~:ee~~t~f
or defendant, upon bringing his bill after decree to the former de-
have the benefit of that decree, must, as in the caseof cree.
the total assigneeofa soleplaintiff, beprepared to shew
that the decree was a correct one; and that conse-
quently if the as ignment took place before thedecree,
so that the decree was erroneous for want of parties,
the a signee, as in the above mentioned case of CZunn
v. Crofts(a), could obtain no benefit from that de-
cree. There is however a remarkable caseof Binks v.
Binks (b), which militates not only against this doc-
trine, but also again t the doctrine that the laws of
maintenance require an a ignee to make out his ca e
195
Of A ssignment of Interest.
and subse uent mortgagees and a ter a decree had . here the
been made n the sut reswcke one o the subse- s to the
uent mortgagees assgned hs nterest n the mort- ut.
gaged premses to ooth who thereupon ed a b
aganst a the partes to the ormer sut pra ng or
the bene t o the sut and to redeem the pror and
orecose the subse uent mortgagees the ourt ds-
mssed the second b as aganst a the de endants
thereto e cept reswcke wth costs and ordered
that n de aut o reswcke s pa ng ooth hs mort-
gage debt wthn a certan tme reswcke shoud
stand orecosed and n that case ooth was as
aganst reswcke decared entted n rght o hs
mortgage securt to the bene t o the decree and
proceedngs n the rst sut and to stand n the pace
o and use the name o reswcke n the urther pro-
secuton o the rst sut and n the meantme to be at
bert to attend the Master n takng the accounts n
that sut.
t s apprehended that the dsputed or parta assg- ow ar the
nee o a soe pant or the assgnee o a co-pant g g
or de endant upon brngng hs b a ter decree to the ormer de-
ha e the bene t o that decree must as n the case o
the tota assgnee o a soe pant be prepared to shew
that the decree was a correct one and that conse-
uent the assgnment took pace be ore the decree
so that the decree was erroneous or want o partes
the assgnee as n the abo e mentoned case o unn
. ro ts a coud obtan no bene t rom that de-
cree. There s howe er a remarkabe case o nks .
nks b whch mtates not on aganst ths doc-
trne but aso aganst the doctrne that the aws o
mantenance re ure an assgnee to make out hs case
a upra n ths chapter. 1 13 2 . 593.
o2
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Oriqrnal from
Digitizedby
C d) Ibid. 163. (c) 3Dan. C h. Pro 165.
III. Wheretheby an original bill in thenature of a supplemental bill,
~~ife~;~oa~~: instead of merely continuing the suit by simple sup-
Suit. plemental bill. In that case Thomas Binks, a ere-
'-.,-' 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 beforedecree
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 sa.leof 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 theoriginal bill, and not the facts of
the case, and acknowledging that the decree had been
obtained by mistake, but offering to confirm all the
former proceedings, and join in the conveyance to the
purchaser, and praying for the benefit of the decree
and other proceedings in the cause. An objection by
Lord Rokeby that the decree ought not to becarried
into execution because it was erroneous, was over-
ruled, and Richard Binks was allowed to carryon 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 haying reserved an interest in
the suI'}Ius. He says also that the assignee of a co-
plaintiff or defendant 111a) add himself to the suit by
supplemental bill Cd). He does not 11011eyergive any
explanation why a partial assignee of a sole plaintiff,
or the a signee of a co-plaintiff or defendant, is less
obnoxious in theory to the laws of maintenance than a
OJ Assignment of Interest. 196
. here the b an orgna b n the nature o a suppementa b
hms e to the stead o mere contnung the sut b smpe sup-
ut pementa b. n that case Thomas nks a cre-
dtor o ord okeb ed a b or the sae o cer-
tan estates whch had been assgned b ord okeb
to trustees or pa ment o hs debts and be ore decree
Thomas nks assgned hs nterest n the estates and
debt to chard nks and others n trust or the pa -
ment o hs Thomas nks s debts. decree was
a terwards made or sae o the estates accordng to
the pra er o the b whereupon chard nks and
hs co-trustees ed a smpe suppementa b statng
the ng on o the orgna b and not the acts o
the case and acknowedgng that the decree had been
obtaned b mstake but o erng to con rm a the
ormer proceedngs and on n the con e ance to the
purchaser and pra ng or te bene t o the decree
and other proceedngs n the cause. n ob ecton b
ord okeb that the decree ought not to be carred
nto e ecuton because t was erroneous was o er-
rued and chard nks was aowed to carr on and
prosecute the sut and ha e the bene t o the ormer
decree.
Mr. Dane sa s c that the reason wh chard
nks was aowed to proceed b a smpe suppemen-
ta b was because the assgnment to hm was on
parta Thomas nks ha ng reser ed an nterest n
the surpus. e sa s aso tat the assgnee o a co-
ant or de endant ma add hmse to the sut b
suppementa b d . e does not howe er g e an
e panaton wh a parta assgnee o a soe pant
or the assgnee o a co-pant or de endant s ess
obno ous n theor to the aws o mantenance than a
c 3 Dan. h. Pr. 165. d bd. 1 3.
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total as ignee of a sole I laintiff. The circumstance of III. Where the
the a signor being made a party to the assiariee's suit A _ signee adds
b him elf to the
in the ca e of a partial assignment might I erhap war- Suit.
rant a imple supplemental bill in that one case; but '-..,-----1
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 nit by the total assignee
of a sole plaintiff.
197
tota assgnee o a soe pant . The crcustance o . here the
the assgnor beng made a part to the assgnee s sut hms e to
n the case o a parta assgnment mght peraps war- ut.
rant a smpe suppementa b n tat one case but
ths reason woud not app n the cases o suts b
the assgnees o co-pant s or o de endants an
more than n the case o a sut b the tota assgnee
o a soe pant .
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DI itized by
Nature of WE now come to the second of the three classes of
the Remedy. d L' b d I h hi I .
'-v--' elect a ove enumerate ; name y, t at w ICI 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,
becausethere is a person interested who isnot 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 casenearly 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, asan 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 newinterest 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 doe it require a new suit
to be instituted, eeking the benefit of the former pro-
OF THE RISE OF A NEW INTEREST.
CHAPTER XII.
198
19
PT .
T T T.
ature o e now come to the second o the three casses o
t e erne . g g abo e enumerated name that whch arses
when a ter a sut has been nsttuted a new nterest
n the matter n tgaton arses n a new person.
Ths happens where a chd s born who becomes on
hs brth entted under some w or settement to an
estate n the propert whch s the sub ect o the sut.
rom that moment the sut ceases to be compete
because there s a person nterested who s not a part
to t and the de ect must be supped b brngng
the new part be ore the ourt.
n consderng the mode n whch ths ought to be
done we sha nd that the case near resembes that
consdered n the second chapter o ths treatse where
a person who s a necessar part at the tme o ng
the orgna b has been omtted to be made a part
to t. or the new-born chd nether cams an n-
terest der ed rom a ormer part as an assgnee does-
nor does he cam the propert b an ndependent tte
n the pace o a stranger whose nterest has deter-
mned as n the case o a bshop or rector : but he
cams an entre new nterest whch has ne er be ore
been represented n the sut. The de ect there ore
occasoned b hs brth s nether o that nature whch
re ures the sut to be contnued aganst hm b a
smpe suppementa b nor does t re ure a new sut
to be nsttuted seekng the bene t o the ormer pro-
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(a) For a precedent of this sort of bill, see the Appendix, No. XX.
ceedings; but it i a defect quasi inherent in the suit Nature of
fromthebeginning, and ought to be remedied by uch ~
a supplemental bill as has been treated of in the
econd chapter, in the case of an omission of aneces-
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 benefi t of proceedings previously had
in the original suit.
Where the child, born pendente lite, is a tenant in Where an in-
tail, the rule is somewhat different.-In the peculiar ttermetd~atetil
enan in a
case of a suit instituted against aprior tenant in tail, comes into esse.
wehave already seen that it is not necessary to bring
before the Court any tenant in tail in remainder, be-
cau e the first tenant in tail is upposed 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 caseof 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 i continued against himwithout his being called
upon to an ITer the original bill; he being bound by
the proceedings had against the remainder-man in
tail in consequence of their suppo ed identity of in-
199 Of the Rise of a New Interest.
the se o a ew nterest. 199
ceedngs but t s a de ect uas nherent n the sut ature o
rom the begnnng and ought to be remeded b such the emed .
a suppementa b as has been treated o n the
second chapter n the case o an omsson o a neces-
sar part and whch s n the nature o an amend-
ment o the orgna b and cas upon the de en-
dant to answer that b.
The rame a there ore o such a b and the pro-
ceedngs upon t w be such as ha e been aread
descrbed n the second chapter to whch we ma
aso re er or the mode o e tendng to the suppe-
menta sut the bene t o proceedngs pre ous had
n the orgna sut.
here the chd born pendente te s a tenant n where an a-
ta the rue s somewhat d erent. n the pecuar g n - t
case o a sut nsttuted aganst a pror tenant n ta comes nto esse.
we ha e aread seen that t s not necessar to brng
be ore the ourt an tenant n ta n remander be-
cause the rst tenant n ta s supposed to represent
the whoe nhertance and that conse uent the
pror tenant n ta des the sut s contnued aganst
the tenant n ta n remander b suppementa b
mere wth bert to the tenant n ta n remander
to state an speca crcumstances attachng to hs
case. n anaog to ths rue the same practce s
adopted n the re ersed case o a pror tenant n ta
comng nto esse durng a sut whch has been com-
menced aganst the remander-man n ta. The pror
tenant n ta s put n the pace o the remander-
man n ta b a smpe suppementa b and the
sut s contnued aganst hm wthout hs beng caed
upon to answer the orgna b he beng bound b
the proceedngs had aganst the remander-man n
ta n conse uence o ther supposed dentt o n-
a or a precedent o ths sort o b see the ppend o. .
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(0) 9Yes. 59, 60.
Nature of terest; with liberty however to state any special cir-
~ cumstances 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, 110 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, div ided into estates tail, against a remote remain-
der-man, those intermediate 110t being jet 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. I tis so said ;-I doubtit: and am of
opinion that whenever the case shall ari e, if the wit-
nes es 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 ort 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 ame circumstances, it is competent both for and
a -ainst him to bring forward the equitie belonging to
tho e different circumstances, as contra-distingui hing
his ca e(b)."
Of the Rise of a Ne Interest.
200
200 the se o a ew nterest.
ature o terest th bert howe er to state an speca cr-
the emed . custances attachng to hs case. n such a case t
s apprehended that the sut woud be dsmssed as
aganst the tenant n ta n remander as beng b
the rue abo e g en no onger a necessar part to
the sut.
The abo e rue s thus ad down b ord don :
n the er ordnar case where the b s ed or
the purpose o rasng a charge aganst the nhert-
ance d ded nto estates ta aganst a remote reman-
der-man those ntermedate not beng et n esse
the cause has proceeded a certan ength on an nter-
medate remander-man comng nto esse ou go on to
state the ormer proceedngs and that s hed aega-
ton su cent to put the acts n ssue wth regard to
that sort o de endant. ut admt the genera op-
non that n such a case wtnesses ha e been e a-
mned aganst the ormer de endant et upon the
other s comng nto e stence the pant must e -
amne agan. t s so sad / doubt t: and am o
opnon that whene er the case sha arse the wt-
nesses shoud de ths ourt upon ts own prncpes
ma hod the subse uent de endant entted to the
bene t o that testmon . o shoud aso sa that
ths sort o prncpe arsng out o what the ourt
does or the con enence o ustce must be apped
both or and aganst the tenant n ta sub ect awa s
to ths that where the tenant n ta takes a d erent
nterest or rather a smar nterest not a ected b
the same crcumstances t s competent both or and
aganst hm to brng orward the e utes beongng to
those d erent crcumstances as contra-dstngushng
hs case .
9 es. 59 G .
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THERE remains only the third species of defect above Nature of the
noticed : namely that which arises from the total ces- ~ew Proceed-
, , < : mgs.
ation of the interest of a party during his life. '-..___, .
We have seen that on the death of a party who e
interest does not devol ve on his heir, devisee, or per-
sonal repre entative, but cea es with his life, the uit,
as regard that party, does not abate, so as to be capa-
ble of revivor, but is wholly terminated; although the
1enefit of it, to some extent, may be obtained by or
against any person who succeeds to the property and
who is not already before the Court, by means of a bill
in the nature of a snpplemental bill. In like manner,
if, during the life of aparty, his intere t in the subject
matter of a suit whol1y terminates, and does not pass
to any as ignee or person claiming under him, the
suit, a regards such party, does not become defective
merely, but is wholly terminated. Here how ever
al 0 the benefit of the suit may be obtained by or
again t a ucces or to the property not already before
the Court, by mean of a bill in the nature of a sup-
plemental bill.
The result is, that it makes no difference, when an
intere t wholly cea es, whether the party entitled to
that intere t i living or dead. In both cases the suit
is wholly at an end a regard him :-in both ca es the
benefit of it may by anew uit beextended to or again t
hi succe or.
OF THE CESSATION OF INTEREST DURING LIFE.
CHAPTER XIII.
201
201
PT . :
T T T T D G .
There remans on the thrd speces o de ect abo e ature o the
notced name that whch arses rom the tota ces- oceed-
saton o the nterest o a part durng hs e. .
e ha e seen that on the death o a part whose
nterest does not de o e on hs her de see or per-
sona representat e hut ceases wth hs e the sut
as regards that part does not abate so as to be capa-
be o re or but s who termnated athough the
bene t o t to some e tent ma be obtaned b or
aganst an person who succeeds to the propert and
who s not aread be ore te ourt b means o a b
n the nature o a suppementa b. n ke manner
durng the e o a part hs nterest n the sub ect
matter o a sut who termnates and does not pass
to an assgnee or person camng under hm the
sut as regards such art does not become de ect e
mere but s who termnated. ere howe er
aso the bene t o the sut ma be obtaned b or
aganst a successor to the propert not aread be ore
the ourt b means o a b n the nature o a sup-
pementa b.
The resut s that t makes no d erence when an
nterest who ceases whether the art entted to
that nterest s ng or dead. n both cases the sut
s who at an end as regards hm : n both cases the
bene t o t ma b a new sut be e tended to or aganst
s successor.
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Oi gitlzed by
(b) 6 J urist, 1032; vide etiam
2 Hare, 81.
(a) 1842, 1843, 6 J urist, 1032,
and 7 J urist, 185.
Of the Cessation of
Nature of the In The Attorney General v. Foster (a), an informa-
~~:. Proceed- 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 asupplemental
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 J ames
Wigram, V. C. (b), on the ground that their appoint-
ment to the officeof 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 newdefence made by the newmaster
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 newhigh 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
202
202 the essaton o
ature o the 111 The ttorne Genera . oster a an n orma-
g ton had been ed aganst the trustees master and
usher o a schoo and be ore the sut came to a de-
cree three new trustees were apponted and a ter
decree upon the resgnaton o the master and usher
a new master and usher were apponted. The three
new trustees and the new master and usher were
thereupon brought be ore the ourt b a suppementa
n ormaton on and not b an orgna n ormaton
n the nature o a suppementa one puttng the org-
na acts n ssue and the three new trustees put n
a ont answer and the new master and usher put n
another ont answer b whch answers the a n-
ssted that the were not bound b the ormer suts
and made new de ences and camed the bene t o
the od de ences made b ther predecessors. cep-
tons to the new de ence made b the new trustees
were o errued b the Master and b r ames
gram . . 5 on the ground that ther appont-
ment to the o ce o trustees had been be ore the hear-
ng and date o the decree and that the had the same
rght now to answer and de end as the had been
made partes mmedate upon ther appontment but
e ceptons to the new de ence made b the new master
and usher ha ng been aowed b the Master on the
ground that the were apponted a ter the date o the
decree and were there ore bound b the de ence o
the then master and usher r anceot hadwe
. aowed e ceptons to the Master s cert cate
sa ng The new hgh master and usher came nto an
estate whch was the same as ther predecessors had
but not b reason o an pr t wth ther predeces-
sors. t seems to me to be the same case as aganst a
a 1 42 1 43 6 urst 1032 b 6 urst 1032 de etam
and 7 urst 1 5. 2 are 1.
G
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Oriqinal from
Digrtfzed by
bi hop or a parson. If a decree were made in a cause Nature of the
. hi h d {' d d h h d NewProceed.
I nW IC aparson "vasa eren ant, an t en, t e ecree ings.
being unexecuted, a change in the office should take "-.----J
place, and a supplemental bill, that is to sayan 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 mayor 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 rjght, 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 nbmitted 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 u her, before
the Court by an oriqinal information in the nature of
(c) Ld. Red. ed. 4, p. 72.
203 Interest durinq Life.
nterest durng e. 203
bshop or a parson. a decree were made n a cause ature o the
ew Proceed-
n whch a parson was a de endant and then the decree gg
beng une ecuted a change n the o ce shoud take
pace and a suppementa b that s to sa an org-
na b n the nature o a suppementa b shoud be
ed aganst the new parson t appears to me that the
er act o ng the b admts that the de endant
ma make a de ence and a that these gentemen as
understand t ha e done n ther answer s ths
the state some crcumstances whch ma or ma not
ha e the e ect o shewng that though the decree n
the orgna cause was rght whch the do not ds-
pute et that that decree ought not to be bndng
upon them that s a. nd can conce e m se
a great aret o crcumstances whch mght tend to
shew that admttng that the decree n the orgna
cause was cear rght because a decree s rght
wth re erence to the thngs aeged n the cause and
the thngs pro ed n the cause the decree s rght
st when an orgna b n the nature o a suppe-
menta b s ed aganst persons who come nto the
same estate but not b reason o pr t wth the
ormer hoders o the estate and the ueston s whe-
ther the decree sha be carred on aganst them the
ma shew man reasons speakng o t genera wh
that decree shoud not be carred nto e ect aganst
them.
t s submtted that a the d cut o the abo e
case woud ha e been a oded a hgher ground o
ob ecton had been taken b the de endants counse
and the ttorne Genera had been compeed as
accordng to ord edesdae c he ought to ha e been
to brng the new trustees master and usher be ore
the ourt b an orgna n ormaton n the nature o
c d. ed. ed. 4 p. 72.
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Oriqinal from
Digitizedby
(e) Vide supra, Chap. X. (d) Vide supra, Chap. X.
Nature of the a upplemental information, putting the whole case in
~::. Proceed. issue again, and pl'aying specific relief against them. In
'----.---' that casethe 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
by mere supplemental bill on account of their supposed
identity in representing the whole inheritance; and
110tin 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.
Exceptions To the doctrine which treats a suit as terminated by
to the Rule. the cessation of a party's interest, and obliges his sue-
"-v---I cessor to commence de novo by original bill, there are
the same exceptions in cases of persons suing in auter
droit, as have been formerly pointed out in treating of
_ dministrator the deaths of parties (e). Thus where an administra-
durante minori tion has been granted durante minori cetate and the
atate. . '
infant comes of age, and takes the administration 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 m order to carry out the ob-
Of the Cessation oJ 204
204
the essaton o
ature o the
ew Proceed-
ngs
a suppementa n ormaton puttng the whoe case n
ssue a an and pra ng spec c ree a anst them. n
that case the de ences put n to the second n ormaton
woud ha e been ute ndependent o the ormer de-
ences and no ueston coud ha e arsen respectng
them. Ths second n ormaton woud aso ha e been
carred on to a decree ndependent o the ormer de-
cree n the usua wa and such second decree woud
ha e been smar to the rst decree the crcum-
stances o the cases made out were smar and ds-
smar to the ormer decree the crcumstances were
dssmar. The rght to adopt aganst a successor a
decree aganst hs predecessor wth bert to the suc-
cessor to state speca crcumstances a ectng hs case
on arses n the pecuar case o tenants n ta d
aganst whom the orgna sut s proper contnued
h mere sup ementa h on account o ther supposed
dentt n representng the whoe nhertance and
not n the case o a bshop parson or other corpora-
ton soe these atter beng entted to ther new de-
ences on the hgher ground o per ect ndependenc
o tte.
To the doctrne whch treats a sut as termnated b
the cessaton o a part s nterest and obges hs suc-
cessor to commence de no o b orgna b there are
the same e ceptons n cases o persons sung n auter
drots as ha e been ormer ponted out n treatng o
dmnstrator the deaths o partes e . Thus where an admnstra-
durante mmor gg gg p ranted durante mnor estate and the
etate. ...
n ant comes o age and takes the admmstraton upon
hmse he cams not under but ndependent o the
rst admnstrator. Proper there ore an orgna
b n the nature o a suppementa b ought to be
ed b or aganst hm n order to carr out the ob-
ceptons
to the ue.
d de s pra hap. .
e de s pra hap. .
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Original from
I gltizedby
bert, 31, where the circum tance
i aid not to abate the bill; but
Stubbs v. Leigh, 17 4,1 Cox, 133,
ay that there is no way of avoid.
ing a supplemental bill.
(k) E tl. 4, p. G!,
( I ) upra hap. X.
(f) Ld. Red. ed. 4, p. G4; sed
vide Coke v. Hodges, 161, 1"'ern.
25.
( g) Jones v. Bassett, izoi, Pro
Ch. 174.
(k) Ld. Red. ed. 4, p. G4.
(i) Anon., 1602, Cary, by Lam.
Exceptions
to the Rule.
~
ject of the original uit. But here, in con equence
of the intere t of both admini trators being fiduciary
only, the Court regard such interest a transmitt d
from one to the other, and allows the suit to be con-
tinued by supplemental bill ( f) . It i true that there
is an old authority which hold that where there i~110
will, and the parties are simply administrators, and
not administrators cum testamento annexo, the general
rule applies, and a new suit must be commenced;
particularly where the original party has not proceeded
to a decree and an account (g); but Lord Rede dal
makes no distinction between ca e of admini tration
durante minori cetate, cum testamento annexo, and ca e
ine testamento annexo, but include all admini tration
durante minori aitate in the e .ception to the general
rule (h). And there is even a ca e(i) from which it
might be inferred that no new t P whatever wa
necessary to be taken by the infant, but this inference
i corrected by later authoritie .
Lord Rede dale al 0 includes in the exception Admini trator
h 1
1]
f
drnini pendente lite
to t e genera I 'U e t re case 0 an a mnnstration pen- .
dente lite determining durinz the uit (h).
New assignees in bankruptcy and insolvency, and ~ew assignee
. f 1 . idi '.1 I nbankruptcy
new committee 0 unatic or 1 iots, appolll ted on and insolvency.
the removal of the former a ignee and committe ,
are brouaht before the Court by the arne proce a.
tho e appointed on the death of the former a ignees
and committee, which has been con iderecl in a pre-
viou chapter (l).
If the party on whom the intere t devolve i alread v
205 I nterest during Life.
ccts o the orgna sut. ut here n conse uence ceptons
o the nterest o both admnstrators beng ducar tothe ue.
on the ourt regards such nterest as transmtted
rom one to te other and aows te sut to be con-
tnued b suppementa b / . t s true that there
s an od authort whch hods that where there s no
w and the partes are smp admnstrators and
not admnstrators cum testamento anne o te genera
rue appes and a new sut must be commenced
partcuar where the orgna part has not proceeded
to a decree and an account but ord edesdae
makes no dstncton between cases o admnstraton
durante mnor cetate cum testamento anne o and cases
sne testamento anne o but ncudes a admnstraton
durante mnor cctate n the e cepton to the genera
rue . nd there s e en a case e rom whch t
mght be n erred that no new step whate er was
necessar to be taken b the n ant but ths n erence
s corrected b ater authortes.
ord edesdae aso ncudes n the e ceptons dmnstrator
to the genera rue the case o an admnstraton e -
dente te determnng durng the sut /0.
ew assgnees n bankruptc and nso enc and ew assgnees
new commttees o unatcs or dots apponted on and nso enc .
the remo a o the ormer assgnees and commttees
are brought be ore the ourt b the same process as
those apponted on the deaths o the ormer assgnees
and commttees ch has been consdered n a pre-
ous chapter / .
the part on whom the nterest de o es s aread
/ d. ed. ed. p. G4 sed bert 31 where the crcumstance
de oke . odges 1 ern. s sad not to abate the b but
25. hhbs . egh 17 4 1 o 133
g ones . asset 1701 Pr. sa s that there s no wa o a od-
h. 174. ng a suppementa b.
d. ed. ed. 4 p. G4. d. 4 p. 64.
7wn. 1602 Gar b am- / upra hap. .
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Oriqmal from
DI itized by
(m) 1833, 1 C. P. Cooper, temp. Brougham, 27.
Exceptions before the Court, it is apprehended that the cessation
to the Rule. of the 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
put intheplace I" b . d I . 1
ofa wrongful party c annmg y an I I I epencent tit e, to commence
heir. de novo, isfound inthe peculiar caseof 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. Eboral (m), where a re-
ference had been directed to the 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-
son were discovered to be the heirs at law ex parte
paterna of Samuel Oldham, and they accordingly filed
a bill against Eboral and the other parties on the
OJ the Cessation of 206
206 the essaton o
ceptons be ore the ourt t s apprehended that the cessaton
to the ue. p other part s nterest w cause no de ect n
the sut but that as n the case o the death o a
tenant or e not beng a soe pant or soe de-
endant the sut w proceed as be ore wthout ur-
ther d erence than the omsson o such part s name
n the subse uent proceedngs.
ght u her nother e cepton to the rue whch re ures a
o a wron m P t camng b an ndependent tte to commence
her. de no o s ound n the pecuar case o a person ha ng
been made a part to a sut under a character whch
he had no rght to assume whe the part rea en-
tted to that character has been e cuded rom the
sut. n such a case t appears that the sut has
proceeded to a decree the part rea entted he
desres to prosecute the matter s not obged to com-
mence de no o as woud at rst sght appear to be
necessar but ma e a b ounded not upon the
acts o the case but upon the decree aread obtaned
and pra ng that he ma ha e the bene t o that
decree and that t ma be re ersed so ar on as to
pace hm n e er respect n the stuaton o the
part b whom the character has been wrong u
assumed. Thus n dham . hora m where a re-
erence had been drected to te Master to nd the
her at aw o amue dham and he reported that
there was no her e parte paterna but that bora
was the her e parte materna and bora was ac-
cordng brought be ore the ourt b suppementa
b and the possesson o a reehod estate decreed to
hm and a terwards a Mrs. dham and other per-
sons were dsco ered to be the hers at 2s e parte
paterna o amue dham and the accordng ed
a b aganst bora and the other partes on the
m 1 33 1 . P. ooper temp. rougham 27.
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Original from
U N I V E R S I T Y OF C A U F OR N I I I .
Di gitized by
record to the former suit, praying for the benefit of Exceptions
h 1
h fi '. d h t t! to the Rule.
t e proceecmgs In t e ormer SU It,an t a ne same '-v----'
might be reversed so far as the title of Eboral was
thereby set up in opposition to themintheir 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.
207 Interest during Life.
record to the ormer sut pra ng or the bene t o ceptons
the proceedngs n the ormer sut and that the same
mght be re ersed so ar as the tte o bora was
tereb set up n opposton to them n ther character
o hers at aw ord rougham made the decree
sought or b the b.
The orms o proceedngs upon the suppementa
bs and orgna bs n the nature o suppementa
bs mentoned n ths chapter correspond wth those
descrbed concernng the bs o the same names
mentoned n ormer chapters.
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Orr mal from
DI itized by
Nature of THERE are several events which may occur in the
the Remedy. f' a suit i d hi 1 b b I
~ course 0 a SUItIn equity, an W lIC1 must e roug It
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 lllay be intro-
duced into the original bill by way of amendment.
An executor proving a will, 01' a person taking out
administration after the institution of the suit, being
the plaintiff, may state those facts to the Court by
amendment of the original bill.
Thus in Humphreys v. Humphrefs (a), where a plain-
tiff filed her bill as next of kin of an intestate with a
right 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
takin . out administration wa sub eqnent to the ori-
(a) 1734, 3P. W. 350.
OF EVENTS WHICH DO NOT ALTER THE PARTIES.
CHAPTER XIV.
208
20
PT .
T D T T T P T .
ature o T are e era e ents whch ma occur n the
te erne . . pgg sut n e ut and whch must be brought
be ore the ourt be ore the u e ect o the sut can
be obtaned but at the same tme do not ar the n-
terest o an person n the matter so as to make an
ateraton necessar n the partes to the sut. Thus
where a pant has an nchoate rght at the tme o
ng hs orgna b he ma a terwards compete
that rght b some act. The sut then becomes de ec-
t e or want o such act beng stated to the ourt
and t w be necessar or the pant to brng t
be ore the ourt n the manner mentoned herea ter.
mendment. n some ew nstances such an e ent ma be ntro-
duced nto the orgna b b wa o amendment.
n e ecutor pro ng a w or a person takng out
admnstraton a ter the nsttuton o the sut beng
the pant ma state those cts to the ourt b
amendment o the orgna b.
Thus n hmphre s . umphre s a where a pan-
t ed her b as ne t o kn o an ntestate wth a
rsht to admnster to hm and a demurrer thereto
was aowed wth bert to amend and thereupon the
pant took out etters o admnstraton to the n-
testate and charged the same b wa o amendment
ord hanceor Tabot o errued a pea that the
takng out admnstraton was subse uent to the or-
a 1734 3 P. . 350.
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Original from
Nature of
the Remedy.
"--v------I
209
Digitized by
'ina] bill, and therefore ought to haveL enl rousht be-
fore the Court by supplemental bill and not by amend-
ment; ob erving that the admini tration when taken
out related back to the time of the death of the inte: tate.
From the language of this decision it is apprehended
that the fact of a defendant's proving a will or takinsr
out administration after the institution of the suit may
equally be introduced b) the plaintiff into the orisinal
bill by 'lay of amendment.
o it appears that matter occurring between the bill
and an wer, and tated by 'way of defence in the an-
wer, may sometimes be introd uced into the original
bill b r amendment.
The ca e of Kniqlu. v. JJattltews(c) give us an i11-
tance of uch a proceeding. In that case the defend-
ant Matthew had commenced an action again t Knight,
the plaintiff, to recover back a certain deposit, being
part of the purcha e money of a house, and Knight
had Bled a bill to compel Matthews to complete the
purcha e. After the bill was Bled the action was
tried, and the verdict was in favour of Matthew ; who
thereupon sent back the key of the house to Knight's
olicitor , and stated these facts in his answer to the
bill. Thereupon Knight amended his bill by stating the
verdict and the sending of the key, and by charging
that the verdict had given only nominal damages,
and that t1 e solicitors had refu ed to take the key;
and it was held that these amendments were good;
"For," aid Sir Thomas Plumer, V. C., "The plain-
tiff, when he Bled hi bill, [011 the 27th of J uly, 1 15,J
stated the matter as they then stood. The an wer
wa put in on the 14th of November, 1815. In the
interval many circum tance might have occurred;
and the defendant, when he puts in hi answer, mu t
(c) 1816, 1 Madd. 566.
p
OJ E'Vents uiliich. do not alta tile Par ties.
ents whch do not ater the Partes. 209
-n b and there ore ouoht to ha e been brought be- ature o
1 M 1 1 1 the emed .
ore the ourt b suppementa b and not b amend-
ment obser ng- th t the admnstraton wen taken
out reated back to the tme o the death o the ntestate.
rom the anguage o ths decson t s apprehended
that the tct o a de endant s pro ng a w or takng-
out admnstraton a ter the nsttuton o te sut ma
e ua be ntroduced b the pant nto the orgna
b b wa o amendment.
o t appears that matter occurrng between the b
and answer and stated b /a o de ence n the an-
swer ma sometmes be ntroduced nto the orgna
b b amendment.
The case o nght . Matthews c g es us an n-
stance o such a proceedng. n that case the de end-
ant Matthews had commenced an acton aganst nght
the pant to reco er back a certan de ost beng-
part o the purchase mone o a house and nght
had ed a b to compe Matthews to compete the
purchase. ter the b was ed the acton was
tred and the erdct was n a our o Matthews who
thereupon sent back the ke o the house to nght s
soctors and stated these acts n hs answer to the
h. Thereupon nght amended s b b statng the
erdct and the sendng o the ke and b chargng
that the erdct had g en on nomna damages
and that the soctors had re used to take the ke
and t was hed that these amendments were good
or sad r Thomas Pumer . The pan-
t when he ed hs b on the 27th o u 1 15
stated the matters as the then stood. The answer
was put n on the 14t o o ember 1 15. n the
nter a man crcumstances mght ha e occurred
and the de endant when he puts n hs answer must
c 1 1G 1 Madd. 56G.
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Original from
Digitized by
(d) 1811, G. Cooper, 43,
upplemental
bill.
Nature of state the facts as they then are; and if circumstances
theRemedy. . I d' h hi I d b
"--.--J are mtroc uce into t e answer, w IC1 occurre su-
sequently to the filing of the bill, theplaintiff must be
allowed to make amendments to the bil1, soas to shew
that such newcircumstances 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 ?-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."
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
uit 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 isnot every event which may occur subsequently
Supplemental 1'" f ' h '11.[' d
Matter. to t re institution 0 a suit, t at WI rorm a goo
'-..----Iground for asupplemental bill; even without having
regard to the fewinstances above-mentioned of the in-
troduction of such events by way of amendment. The
supplemental matter may besuch ascannot bebrought
forward in the same suit at all.
Bill will not lie Thus where the title of the plaintiff is absolutely
~~J ~rt1~.rta bad at the time of filing the original bill, he cannot
upport itby bringing forward anewevent bywhich he
acquires agood title after the filing of theoriginal bill.
Thus in Tonkin v. Lethbridge Cd), 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
Of Eoents which do not alter the Parties. 210
210 ents whch do not ater the Partes.
ature o state the acts as the then are and crcumstances
are ntroduced nto the answer whch occurred sub-
se uent to the ng o the b the pant must be
aowed to make amendments to the b so as to shew
that such new crcumstances are not o the coour the
de endant represents them and so as to obtan a com-
pete answer as to such crcumstances. There must be
some mode o meetng the de ence. t s sad t can
on be done b suppementa b. oud not that
occason bs wthout end 1 or then a acts occur-
rng between the b and answer must be stated b
suppementa b and thus resh acts occurrng
man such bs mght be necessar .
uppementa ut as a genera rue and e en n cases smar to
the abo e when the proceedngs are too ar ad anced
to aow o amendment the part conductng the
sut must e a suppementa b statng the new
matter necessar to be brought be ore the ourt and
pra ng the ree conse uent upon such new matter.
ature o the t s not e er e ent whch ma occur subse uent
Mat r to the nsttuton o a sut that w orm a good
ground or a suppementa b e en wthout ha ng
regard to the ew nstances abo e-mentoned o the n-
troducton o such e ents b wa o amendment. The
suppementa matter ma be such as cannot be brought
orward n the same sut at a.
w not e Thus where the tte o the pant s absoute
bad t e. o ng the orgna b he cannot
support t b brngng orward a new e ent b whch he
ac ures a good tte a ter the ng o the orgna b.
Thus n Tonkn . ethhrdge d a person camng
as her o a mortgagor ed hs b or redempton o
the mortgage. The de endant dened the hershp o
the pant whereupon the pant amended hs b
d 1 11 G. ooper 43.
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211
Original from
Digiti zed by
sub tituted for ODeanother in the
books. tory's Eq. Pl. 27 .
(f) Pritchard v. Draper, 1830
1R. c M. 191.
(e) I t is apprehended that this
should beOriginal Bill in the nature
of a upplemental Bill. But :'III'.
J u tice tory remark, very truly,
that the two terms are continually
p2
by tating that he had purchased the interest of the Nature of the
real heir since the institution of the suit, but called ~~t~~~~ental
for no further answer. At the hearing an issue was "-v-J
directed to try whether the plaintiff was the real heir,
and he was found not to beso; whereupon he filed a
supplemental bill stating aconfirmation of the, ale 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 1resent case the title nowrelied on
was ufficiently stated in the original bill, that isgood
ground for arehearinq of the cause; if it is not, then
any third person as well as the plaintiff might filea
supplemental bill. If two original bills had been filed
to redeem, oneby the pre. ent plaintiff, and theother by
Kekewich (the real heir), and then the issue at law iVa
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 plaintiff's.'
The bill however was dismis ed without prejudice to
the plaintiff' right to file a new original bill.
So where a solicitor instituted a suit for payment of
co ts due to him froma client, and it appeared from
the answer that he had not delivered a signed bill con-
formably with the Act of Parliament, and a bill duly
signed was ubsequently delivered, and that fact slated
by a upplemental bill; it was held that the title was
not cured thereby, and that the supplemental bill
would not lie(f).
OJ.Events which do not alter the Parties.
ents c ch do not ater the Partes. 211
b statng that he uu purchased the nterest o the ature o the
rea her snce the nsttuton o the sut but caed Matter
or no urther answer. t the hearng an ssue was .
drected to tr whether the pant was the rea her
and he was ound not to be so whereupon he ed a
suppementa b statng a con rmaton o the sae b
the rea her. n demurrer or that the new matter
was not matter o suppement. ord don sad To
entte a pant b suppementa b to the bene t
o the ormer proceedngs t must be n respect o the
same tte n the same person as stated n the orgna
b. n the present case the tte now reed on
was su cent stated n the orgna b that s good
ground or a rehearng o the cause t s not then
an thrd person as we as the aant mght e a
suppementa b. two orgna bs had been ed
to redeem one b the present pant and the other b
ekewch the rea her and then the ssue at aw was
ound n a our o ekewch whereupon the pan-
t had bought ekewch s tte t s cear that the
purchase shoud be stated b suppementa b e n
ekewch s sut and not n the present pant s.
The b howe er was dsmssed wthout pre udce to
the pant s rght to e a new orgna b.
o where a soctor nsttuted a sut or pa ment o
costs due to hm rom a cent and t appeared rom
the au werthat he had not de ered a sgned b con-
ormab wth the ct o Parament and a b du
sgned was subse uent de ered and that act sated
b a suppementa b t was hed that the tte was
not cured thereb and that the suppementa b
woud not e / .
e t s apprehended that ths substtuted or one anoter n the
shoud be rgna n the nature books. tor s . P 27 .
o a uppementa . ut Mr. / Prtckard . Draper 1 30
ustce tor remarks er tru 1 . M. 191.
that the two terms are contnua
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Orl In I from
Digitizedby
(g) King v. Tullock, 1829, 2 Lawson, 189.
im. 469; vide etiam Davidson v. (h) Mutter v. Chouuel, )828, 5
Foley, 1791,3 Bro. C. C. 598 ; and Ru . 42.
Byrne v. Byrne, 1842, 1 Conn. &
The newevent
must be ma-
terial.
Nature of the And where a defendant in answer to abill by the
Supplemental '
Matter. assignees of a bankrupt, alleged that the plaintiffs had
"-,--J 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 that 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 byhis father had byhis father's
will, and a cert.ain 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
110texecuted until after the bill was filed, the Court
could not enter into the consideration of the plaintiff's
claim, because, 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 at that time. However, as great expense had
been incurred, Sir J ohn 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 relea e fromhis sisters (It).
Itappears that the new event cannot be brought
before the Court by supplemental bill, unless it is ab-
solutely necessary to put it in is uefor the purposes
Of Events wlzich do not alter the Parties.
212
ents whch do not ater the Partes.
s u m nta where a de endant n answer to a b b the
Matter. assgnees o a bankrupt aeged that the pant s had
not obtaned the necessar consent to the nsttuton
o the sut whereupon the pant s ed a suppemen-
ta b statng that snce the ng o the orgna b
the had obtaned the necessar consent a demurrer
was aowed g .
owe er t appears tat under pecuar crcum-
stances the ourt w depart rom the strct etter o
ths rue. Thus where a pant camed as ha ng
been nomnated b hs ather to a church and ed
hs b or an account o the pro ts he a terwards
amended hs b b statng that the e utabe rght
o nomnaton camed b hs ather had b hs ather s
w and a certan deed o reease rom hs ssters be-
come ested n the pant . t appeared that the
pant s tte coud not ha e been sustaned under
the nstrument e ecuted b hs ather and that the
deed o reease rom hs ssters ormed an essenta
part o hs tte but t was hed that as that deed was
not e ecuted unt a ter the b was ed the ourt
coud not enter nto the consderaton o the pant s
cam becau e as the record then stood a decree
a rmng the pant s tte must ha e re erence to
the date o the b and woud a rm the tte n the
pant that tme. owe er as great e pense had
been ncurred. r ohn each M. . drected the
cause to stand o er n order that the pant mght
e a suppementa b or the purpose o reguar
ntroducng- the reease rom hs ssters // .
Thenewe ent t appears tat the new e ent cannot be brought
tera. be ore the ourt b suppementa b uness t s ab-
soute necessar to put t n ssue or the purposes
n . Tuock 1 29 2 awson 1 9.
m. 409 de etam Da dson . h Mutter . hau e 1 2 5
o/e 1791 3 ro. . . 59 and uss. 42.
me . rne 1 42 1 onn.
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Oriqinal from
Digrtfzed by
(k) Eq. PI. 274.
(l) 1 10, 17 es. 14
(i) 0' Connor v , Spaight, 1 04,
1Scb. & Lef. 305.
of tl e nit. Thus, in a nit in Ireland, where a tenant Nature of the
filed a bill again t hi landlord for a certain account Supplemental
, Matter.
and for an injunction to re train an action of eject- "-v---J
ment, and on default by the t nant in complying with
a certain order, the inj unction was dissolved, where-
upon the landlord executed his habere; an objec-
tion wa made at the hearing that as the po ession
had been changed pending' the suit, by the execution
of the habere, and a it was no part of the prayer of
the original bill to have the possession restored, the
plaintiff ought to have filed a upplernental bill to
put that matter in i ue, and pray that specific relief.
But Lord Rede. dale said that it was not the practice
in England to file a supplemental bill where there was
a mere change of po session on dissol ving an inj unc-
tion, and 'ITherethere were no accompanying circum-
stance, so that the only object of the supplemental
bill woull be to tate that"fact ;-because it wa afact
within the view of the Court (i).
The new event must be material and beneficial to I t must be
the merits of the orisinal cau e and not merely uch mat~rial to the
b' merits and not
as bears as evidence upon the facts in issue in the to the evidence.
original cause, Such, sa) Mr. Justice Story (k),
seem to be the re ul t of Lord Eldon's rea oning in
Milner v. Harewood (l). In that case the plaintiff
filed a supplemental bill stating new facts which
happened after publication in the original cau e, and
which he contended would be material and u eful in
evidence upon the hearing of the original cau e. But
Lord Eldon aid," there isno recollection of a supple-
mental bill of this kind; and if a new practice is to
be ettled, my opinion is that T I hen a ca e ari e where
either a conver ation or an admis ion of a defendant
become material after an wer or replication, or, a in
213 Of Events which do not alter the Parties.
ents chch do not ater the Partes. 213
o t e sut. Thus n a sut n reand were a tenant ature o the
ed a b aganst hs andord or a certan account Ma er
and or an n uncton to restran an acton o e ect- /
ment and on de aut b the tenant n comp ng wth
a certan order the n uncton was dsso ed where-
upon the andord e ecuted hs habere an ob ec-
ton was made at the hearng that as the possesson
had been changed pendng the sut b the e ecuton
o the habere and as t was no part o the pra er o
the orgna b to ha e the possesson restored the
pant ought to ha e ed a suppementa b to
put that matter n ssue and pra that spec c ree .
ut ord edesdae sad that t was not the practce
n ngand to e a suppementa b where there was
a mere change o possesson on dsso ng an n unc-
ton and where there were no accompan ng crcum-
stances so that the on ob ect o the suppementa
b woud be to state that act because t uas a act
wthn the ew o the ourt .
The new e ent must be matera and bene ca to t must be
the merts o the orgna cause and not mere such matera to the
o ... merts and not
as bears as e dence upon the acts n ssue n the to the e/r e ce.
orgna cause. uch sa s Mr. ustce tor
seems to be the resut o ord don s reasonng n
Mner . arewood . n that case the pant
ed a suppementa b statng new acts whch
happened a ter pubcaton n the orgna cause and
whch he contended woud be matera and use u n
e dence u on the hearng o the orgna cause. ut
ord don sad there s no recoecton o a suppe-
menta b o ths knd and a ne practce s to
be setted m opnon s that when a case arses where
ether a con ersaton or an admsson o a de endant
becomes matera a ter answer or repcaton or as n
onnor pa M 1 04 k . P . 274.
1 ch. e . 305. / 1 10 17 es. 14 .
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Original from
C I ;J ltlzedby
(0) o &7W. 4, c. 71. (m) 1816,2Madd. 53.
(n) 1842,6Jurist, 547.
Natureof the this case, after examination of witnes es in the origi-
~!t1!;~ental nal cause, or if a new fact happens after publication
"-.--I 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 isrequired,
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 tothe abovecaseof Milner v. 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 isnot
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
beopposed to the abovedoctrine. In that caseabill
wasfiled by arector for an account of tithes, and the
occupier set up amodus asadefence, and died, where-
upon the suit was revived against his representatives.
Afterwards the Tithe Commutation Act (0) 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 haying
thereupon brought an action against thelandlord and
obtained averdict against the modus; it wa heldthat
Of Events which do not alter the Parties. 214
ature o the ths case a ter e amnaton o wtnesses n the org-
tter na cause or a new act happens a ter pubcaton
/ whch t s matera to ha e be ore the ourt n e -
dence when the orgna cause s heard t s much
better that the e amnaton o wtnesses re ured
shoud be obtaned on a speca appcaton or the
opportunt o e amnng and or ha ng the depos-
tons read at the hearng or dsco er s re ured
that the part shoud e a b or that purpose
mere and ree s re ured that the answer
comprehendng the dsco er shoud be read at the
hearng o the orgna cause.
n dams . Dowdng m r Thos. Pumer .
a ter re errng to the abo e case o Mher . arewood
sad that where there s no ateraton n the nterest
o the partes nor an partcuar crcumstance re-
urng urther dsco er but where on a act has
occurred whch mght be pro ed on takng the ac-
count pra ed b the orgna b and the ree s not
ared b the suppementa matter but the pant
mght under the orgna b ha e the ree pra ed
b the suppementa b n such a case a suppe-
menta b s mproper.
The case o Morrs . s n howe er seems to
be opposed to the abo e doctrne. n that case a b
was ed b a rector or an account o tthes and the
occuper set up a modus as a de ence and ded where-
upon the sut was re ed aganst hs representat es.
terwards the Tthe ommutaton ct o ha ng
passed and the commssoner apponted thereunder
ha ng decded n a our o the modus as between the
rector and the then occuper and the rector ha ng
thereupon brought an acton aganst the andord and
obtaned a erdct aganst the modus t was hed that
m 1 1G 2 Madd. 53. o G 7 . 4 c. 71.
m 1 42 6 urst 547.
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Original from
Digitized by
the materiality of the new matter
could only be ascertained by such
reference.
(q) Barned v. Laing, 1843, 7
J uri t, :3 3.
(r) 1840, 11Sim. 50.
(P) Usbo"ne v. Baker, 1817, 2
Madd. 379. In this casethe Court
held on a demurrer for want of ma-
teriality in the new matter, that it
had a right to look into the original
bill and answer, although not dis-
tinctly referred to them j because
the e subsequent facts were properly introduced in aNature of the
supplemental bill, as matter of evidence again t th ~~t~~~~ental
representatix e of the decea ed occupier. '-v----'
But where the new matter i such as will confirm
the plaintiff's case, and is 110tmerely 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 avendor,
who refused to complete the contract on account of
the price being inadequate, and after issuejoined and
witnesses examined, but before publication, the vendor
contracted to sell the estate to a third person at aIe
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'
ca e(p).
If a plaintiff wi hes to obtain a writ of ne exeat Not necessary
. d c. d I 1 1 in order to ob-
regno agamst a e1e11ant, re must, as a genera I 'U e, tain a ne exeat
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 thefil ing of the bill, he may obtain the writ
upon an affidavit of the fact of such intention, without
being obliged tostate that fact inasupplemental bill (q).
I tis true that in Sharp v. TaylO1' (r), Sir Lancelot
Shadwell, V. C., aid that a supplemental bill mu t
befiled for that purpose; but in that caseit appeared
that there had been sufficient ground for praying the
writ, at the filing of the original bill, and that addi-
215 Of Events uihich. do not alter tile Parties.
these subse uent acts were proper ntroduced n a ature o the
suppementa b as matter o e dence aganst the M t r
representat es o the deceased occuper. .
ut where the new matter s such as w con ru
the pant s case and s not mere good as e dence
n the cause a suppementa b w e or dsco er
o such matter. Thus where a purchaser o an estate
ed a b or spec c per ormance aganst a endor
who re used to compete the contract on account o
the prce beng nade uate and a ter ssue oned and
wtnesses e amned but be ore pubcaton the endor
contracted to se the estate to a thrd person at a ess
prce than the prce agreed upon n the ormer con-
tract t was hed on demurrer that a suppementa
b b the pant or dsco er o certan corres-
pondence reat e to the second contract was good
nasmuch as t was use u n support o the pant s
case p .
a pant wshes to obtan a wrt o ne e.re ot necessar
1 p 1 1 1 1 n order to ob-
regno agamst a detendant ne must as a genera rue g
pra or the wrt b hs b but the de endant s regno.
ntenton to go abroad comes to the pant s know-
edge a ter the ng o the b he ma obtan the wrt
upon an a da t o the act o such ntenton wthout
beng obged to state that act n a suppementa h .
t s true that n harp . Ta or r . r anceot
hadwe . sad that a suppementa b must
be ed or that purpose but n that case t appeared
that there had been su cent ground or pra ng the
wrt at the ng o the orgna b and that add-
sborne . aker 1 17 2 the materat o the new matter
Madd. 379. n ths case the ourt coud on be ascertaned b such
hed on a demurrer or want o ma- re erence.
terat n the new matter that t amed . ang 1 43 7
had a rght to ook nto the orgna urst 3 3.
b and answer athough not ds- 1 40 11 m. 50.
tnct re erred to them because
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Original from
01gI t I zed by
(t) 1839, 2 Beav. 239. (s) 7J uri t, 3 3.
tional circumstances had afterwards come to the know-
ledge of the plaintiff. "That case therefore," said
Lord Lyndhurst, C., "stands by itself(s)."
A supplemental 1ill may be Bled for the purpose of
stating an alteration which has taken place ill 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 v. Bridges(t) the plain-
tiff, Nelson, Bled a bill for specific performance of a
contract by one of the defendants, Bridges, to allow
the plaintiff 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 Wood ward entered and
commenced working; and a decree for specific pel'-
formaucc was made in Nelson's suit. Upon this Nel-
son Bled a supplemental bill against both defendants,
praying for a reference to the Ma ter to ascertain the
damages sustained by the plaintiff by Woodward 's
entry and working, and that the amount might be
1aid by the defendants ; and upon an objection being
taken to the supplemental bill, for that the plaintiff
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; " I t has already beeu
declared that the plaintiff is entitled to a pecific per-
formance of the agreement; but, pending the proceed-
ing , the very subject of the agreement to which the
plaintiff has by the decree been declared entitled, has
been abstracted. * * * * * If that circum-
Of Events which do not alter the Parties,
Where the
subject matter
of the suit has
become al-
tered.
Nature of the
Supplemental
Matter.
"-.,-'
2] 6
216
ents whch do not ater the Partes.
ature o the
uppementa
Matter.
here the
sub ect matter
o the sut has
become a-
tered.
toa crcumstances had a terwards come to te know-
edge o the pant . That case there ore sad
ord ndhurst stands b tse 5 .
suppementa b ma be ed or the purpose o
statng an ateraton whch has taken pace n the
actua sub ect matter o the sut snce the nsttuton
o the sut such ateraton has the e ect o ar ng
the ree pra ed or o a ectng a decree aread made
n the sut. Thus n eson . rdges t the pan-
t eson ed a b or spec c per ormemce o a
contract b one o the de endants rdges to aow
the pant t to rase stone under a certan pece o
and the pant ha ng aread entered and com-
menced workng but rdges ha ng n the mean
tme et the uarr to the other de endant oodward.
terwards rdges reco ered possesson n an acton o
e ectment aganst eson and oodward entered and
commenced workng and a decree or spec c per-
ormance was made n eson s sut. pon ths e-
son ed a suppementa b aganst both de endants
pra ng or a re erence to the Master to ascertan the
damages sustaned b the pant b oodward s
entr and workng and that the amount mght be
pad b the de endants and upon an ob ecton beng
taken to the suppementa b or that the pant t
ought to ha e proceeded under the decree or spec c
per ormance to get hs cence antedated and then to
ha e proceeded or hs damages b an acton at aw
ord angdae M. . sad t has aread been
decared that the pant s entted to a spec c per-
ormance o the agreement but pendng the proceed-
ngs the er sub ect o the agreement to whch the
pant has b the decree been decared entted has
been abstracted. - - that crcum-
a 7 urst 3 3.
0 1 39 2 ea .239.
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Original from
Digitized by
stance had been known at the fir, t hearing, I cannot Nature of the
have th , least doubt but that the Court would in the Supplemental
, Matter.
exerci e of its juri diction, have put in a due COllI' e of ~
inve ti 'ation the question of the amount of c01l1pen-
sation 'which ought to be made to the plaintiff; but it
was not brought to the attention of the Court at that
time, and a upplemental bill is now filed for the pur-
pose of obtaining compensation. I tis said that such
compen ation might originally have heen 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 ha once entertained jurisdiction in a case, to
resort to that circuitous mode of giving relief." His
Lord hip then declared that the plaintiff was entitled
to relief, and that the amount ought to be ascertained
1y 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 ca e 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
uch fact as were nece sary, and to allow the plaintiff
to bring an action to ascertain quantum damnificatus.
A npplemental bill of interpleader will lie respect- Where the
inz an addition fo the original subject matter. Thus subject D?-atter
;:, of the SUIt ha
where after the institution of an interpleader suit become aug-
respecting a sum of 496, a further sum of 6 was mented.
received by the plaintiffs, and a claim was then made
bv the c1efendant for interest on the 496 whil t in
"
the hand of the plaintiff ; and the plaintiff filed a
supplemental bill of interpleader respecting the 6
and the interest on the 496; it was held that the
217 "f Ecents wIdell do not alter the Parties.
cents chch do not ater the Partes. 217
stance had been known at the rst hearng- cannot ature o the
ha e the east dou t but that the ourt woud n the Mauer
e ercse o ts ursdcton ha e put n a due course o .
n estgaton the ueston o the amount o con en-
saton whch ought to be made to the pantt but t
was not brought to the attenton o the ourt at that
tme and a suppementa b s now ed or the pur-
pose o obtanng- compensaton. t s sad that such
compensaton mght orgna ha e been had at aw
or not that at east t mght ha e been obtaned at
aw b per ectng the decree or the spec c per orm-
ance o the agreement n some partcuar orm but
am o opnon that t s not necessar or ths ourt
when t has once entertaned ursdcton n a case to
resort to that crcutous mode o g ng ree . s
ordshp then decared that the pant was entted
to ree and that the amount ought to be ascertaned
b an acton at aw because the pro t made b the
de endant was not the measure o the damages done
to the pant the uarr not ha ng been worked
n a wa to make the most o t and there ore t was
a case o damages and not o account and he added
that the proper mode o assessng the amount o the
damage woud be to re ure the de endants to admt
such acts as were necessar and to aow the pant
to brng an acton to ascertan uantum damn catus.
suppementa b o nterpeader w e respect- here the
ns: an addton to the orgna sub ect matter. Thus sub ect matter
where a ter the nsttuton o an nterpeader sut become aug-
respectng a sum o 496 a urther sum o G as
rece ed b the pant s and a cam was then made
b the de endants or nterest on the 496 whst n
the hands o the pant s and the pant s ed a
suppementa b o nterpeader respectng the 6
and the nterest on the 496 t was hed that the
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Original from
Digitized b
(u) Crawford v. Fis1ler, 1842, 1Hare, 436.
Natureof the supplemental suit was not irregular as to the 6,
Supplemental because it had been received after the institution of
Matter.
'-v---Jthe 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 wa
therefore proper subject for amendment (u).
To alter the A supplemental bill will lie for the purpose of
relief w.henthe altering the relief prayed by the original bill when
first relief has '
becomeimpos- that relief has become impossible from subsequent
sible. proceedings. Thus where 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 he 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 proceeded
with, and judgment obtained, and that the plaintiff
had paid the damages and costs recovered against
him; 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-
nece ary; and thence it is inferred that it ought
not to have been filed at all, and that the general
deuurrer ought to be allowed. I donot eethe force
Of .Events which do not alter the Parties. 21
ature o the suppementa sut was not rreguar as to the 6
urpementa gcause t had been rece ed a ter the nsttuton o
Matter.
the orgna sut but that t was rreguar as to the
nterest on the 496 because that was due at the
tme o the nsttuton o the orgna sut and was
there ore proper sub ect or amendment w .
To ater the suppementa b w e or the purpose o
rehe when the aterng the ree pra ed b the orgna b when
become mpos- that ree has become mpossbe rom subse uent
proceedngs. Thus were a b was ed aganst
Peters arro and amburger to ha e certan bs
o e change obtaned b Peters and ndorsed b hm
to arro and b arro to amburger de ered
up to be canceed and or an n uncton to restran
an acton commenced b amburger aganst the
pant and or urther ree the n uncton was
re used. terwards Peters ha ng ed to merca
the pant ed a suppementa b aganst am-
burger aone statng that n conse uence o the re-
usa o the n uncton the acton had been roceeded
wth and udgment obtaned and that the pant
had pad the damages and costs reco ered aganst
m and aegng that there had been arous ad-
mssons and correspondence contanng admssons
o the truth o the statements n the b and pra ng
repa ment o the damages and costs. n a genera
demurrer to the suppementa b or want o e ut
and or that arro was not made a part ord
angdae M. . sad The case or the demurrer
has been argued n the on wa n whch t coud
be argued name that a suppementa b was un-
necessar and thence t s n erred that t ought
not to ha e been ed at a and that the genera
denurrer ought to be aowed. do not see the orce
w raw ord . sher 1 42 1 are 43G.
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Original from
Digitized by
(a:) Pinkus Y. Peters, 1842, GJ uri t, 431.
of that inference. A new fact i introduced, and Natureof the
new circumstances are stated to have taken place, in MSuPtptlemental
a ere
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 deli, ered
up, he asks for repayment of the money. I t is clear,
if t.he 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 hetween 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 specific relief
ought to be granted in consequence of a new fact
baving 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 profit, For an.account
such account may now be taken up to the time of~~~e;~~~~~.
taking it, and i not confined to an account U I to the
219 OJ Events uihich. do not alter the Parties.
o that n erence. new act s ntroduced and ature o the
new crcumstances are stated to ha e taken pace n Ma t ter
conse uence o whch the pant cannot ha e the .
spec c ree pra ed b the orgna b. ut n
conse uence o the crcumstances stated n the sup-
pementa b the pant cams to be entted to
other ree and nstead o ha ng the b de ered
up he asks or repa ment o the mone . t s cear
the sut were carred to a hearng the ourt coud
not grant the ree pra ed b the suppementa b
wthout the ntroducton o the new acts. ut t
s sad that that mght be done b petton and a -
da t and there was nether a suppementa b
nor petton and a da t the new act mght be n-
troduced b admssons between the partes and
the partes re used to make such admssons and the
probabt o such a case appears here the ourt w
n the absence o other means re er t to the Master
to n ure. the ourt can pan see and cases o
that descrpton ha e occurred what s ec c ree
ought to be granted n conse uence o a new act
ha ng occurred t w grant that ree at the hear-
ng. ut has not the pant a rght to antcpate a
the d cutes whch ma arse at the hearng The
ueston here appears to be whether the pant has
such a rght or not and thnk ookng at the
peadngs the pant has a rght to brng the new
matter orward b suppementa b. s ordshp
howe er sad that arro was a necessar part to
the suppementa b and aowed the demurrer on
that ground .
n a sut or an account o recepts and pro ts or an account
such account ma now be taken up to the tme o
takng t and s not con ned to an account up to the
.r Pn cus . Peters 1 42 urst 431.
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Original f r
C I rnzed b
(z) Barfield Y. Kelly, ubi supra. (y). So said in Barfield v. Kelly,
1828, 4 Russ. 355.
Will not lie to
alter adecree
already made.
Nature of the filing of the original bill, although it appear:; that
Supplemental l' I
Matter. rorrner y the contrary practice 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 acertain work, and
obtained an injunction against him; and the defen-
dant by that bill l'ecei red 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
dissol ved 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).
A supplemental bill on matter arisen subsequent to
the filing of the original bill will not lie for the pur-
pose of altering a decree already made in the cause.
Thus where after adecree directing incumbrance' tobe
paid according to priority, the plaintiff, a creditor, ob-
OJ Events iohich. do not alter the Parties. 220
ature o the ng o the rgna b athough t appears that
Ma er ormer the contrar : ractce pre aed and that a
. new sut was necessar n respect o recepts and pro-
ts subse uent thereto. The same s now the prac-
tce wth respect to bs or tthes athough ormer
t was otherwse . ut where the account arses n
conse uence o the sut there the account cannot be
taken wthout ng a suppementa b or the pur-
pose.
Thus where a bookseer ed a b aganst another
bookseer or prac n pubshng a certan work and
obtaned an n uncton aganst hm and the de en-
dant b that b rece ed notce or the rst tme that
hs author was under a co enant wth the pant not
to wrte such a work and upon ha ng the n uncton
dsso ed undertook to keep an account o hs pro ts
unt a ter the tra o an acton at aw to be brought
b the pant to tr the prac t was hed that as
a pant must estabsh a tte to ree at the tme o
ng hs b and as the pant n ths case had no
such tte to ree at the tme o ng hs b the
de endant ha ng on rece ed notce b that b o
the co enant abo e mentoned an account o the re-
cepts and pro ts subse uent to the ng o the b
coud not be decreed wthout the pant s ng a
suppementa b aegng that the de endant had
contnued to pubsh the work a ter the ng o the
orgna b .
not e to uppementa b on matter arsen subse uent to
read mace. rgna b w not e or the pur-
pose o aterng a decree aread made n the cause.
Thus where a ter a decree drectng ncumbrances to be
pad accordng to prort the pant a credtor ob-
o sad n ar ch . e r ar ed . e n supra.
1 2 4 uss. 355.
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Original from
Digitized b
(a) Coop. Eq. PI. 217; Wort. 811; S. C. 2 Ves. sen. 571,576.
ley v. Birkhead, 1754,3 Atk. 809, (0) 1745,3 Atk. 217.
tained an as ignment of an old mortgage, and filed a Nature of the
bill 1 1,1 1. h . Id zi I' b Supplemental
1 to rave t ie advantage wHC It wou give nm y Matter.
way of priority oyer the demands of orne 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 (a).
The general form of the bill in question must he Form of the
id d b hI' di tl Bill. Parties
gU l e y t e same I 'U es, mutatis mutan ZS, as lose &c. '
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.
A 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 Wa)T . 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. Jones (b), there is a dictum of Lord
Hardwicke' , that to a supplemental bill filed for new
221 Of Events which do not alter the Parties.
ents whch do 7ot ater the Partes. 221
taned an assgnment o an od norto-a e and ed a ature o the
- 11- 1-1 uppementa
b to ha e the ad antage whch t woud g e hm b Matter.
wa o prort o er the demands o some o the de-
endants a demurrer was aowed because such b
was aganst the usua course o the ourt. or though
t was a b to ar a decree et t was nether a b
o re ew nor a b n the nature o a b o re ew
whch are the on knds o bs that can be brought
to a ect or ater a decree uness the decree has been
obtaned b raud
The genera orm o the b n ueston must be orm o the
. 1 . . . 7- - Partes
guded b the same rues mutats mutands as those g .
aread g en n the second chapter o ths treatse
respectng suppementa bs or ntroducng new
matter e stng at the tme o the nsttuton o the
sut.
s to the partes to the b we ha e be ore re-
marked that a part conductng a sut has a rght to
conduct t n hs own wa . s there ore the e ect
o a de endant s attemptng to ntroduce a new e ent
nto the sut b ng a suppementa b woud be to
take the conduct o the cause rom the pant t s
on the pant who can make use o the remed n
ueston at east be ore decree. The b ought n
genera to be ed aganst the same persons as were
partes to the orgna b because the atter was
proper ramed a the partes to t w be nterested
n the new matter. howe er the are not a nter-
ested n t the suppementa b ought t s appre-
hended to be ed aganst those on who are nter-
ested n t.
n ones . o es b there s a dctum o ord
ardwcke s that to a suppementa b ed or new
et/
a oop. . P . 217 or - 11 . . 2 es. sen. 571 576.
. rkhead 1754 3 tk. 09 b 1745 3 tk. 217.
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Origin If rn
01gIt Ized by
(c) 1 32,5 Sim. 422j vide etiam Pinkus v. Peters, 1842, 6J urist,
431, and supra in this chapter.
Formof the matter arisen since the filing of the original bill, all
B & ill. Parties, the defendants to the original bill must be parties.
c .
"--.---' So in Greenwood v. Atkinson (c), Sir Lancelot Shad-
well, V. C., says; "Where asupplemental 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
eem to be founded on this reasoning ;-that as the
supplemental matter is not merely achange 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 intere ted in qnes-
tioning it, as he was in questioning the original sub-
ject matter, and therefore must be made aparty 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 asupplemental bill as is now ill 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.
Of Events tohich. do not alter the Parties. 222
orm o the matter arsen snce the ng o the orgna b a
Partes de endants to the orgna b must be partes.
. o n Greenwood . tknson c r anceot had-
we . sa s here a suppementa b s ed
or the purpose o puttng n ssue a new act t s
rght to make the orgna de endants partes to t.
The abo e e pressons are er genera but the
seem to be ounded on ths reasonng that as the
suppementa matter s not mere a change n one o
the partes nterested n the sut but some matera
addton to the orgna sub ect matter o the sut
e er de endant w be as much nterested n ues-
tonng t as he was n uestonng the orgna sub-
ect matter and there ore must be made a part to the
suppementa b n order to ha e an opportunt o
rasng such ueston.
t on remans to obser e that a the proceedngs
upon such a suppementa b as s now n ueston
w be smar to those aread set orth n the second
chapter o ths treatse wth respect to the suppe-
menta bs there spoken o .
c 1 32 5 m. 422 de etarn Pnktts . Peters 1 42 6 urst
431 and spra n ths chapter.
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Original from
Digitized by
(c) Ibid. p. 13.
( c l ) 1843, 7 J urist 364.
( a) Supra, P: 12.
( b) Ibid. pp. 6, 7.
SINCE the earlier part of this work was printed, the Amendment
Vice-Chancellor of England hasconfirmed theopinions ~~:!~P~il~~
whichhe hadpreviously expressed on the three follow- "-v----'
ing points i-first, that newmatter existing at the time
of filing the original bill, if it contradicts the original
issue, i matter for amendment only, and not for supple-
mental bill ( a) ; 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 filea supplemen-
tal bill, at his option (b); and thirdly, that if headopts
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
Pemberton v. Wal ford ( 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. I tappears 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 newfacts
were matter for amendment, and not for supplemental
bill, and that therefore the case came within the
meanin . of the Fifteenth Order of 1 28, Sir Lancelot
Shadwell, V. C., aid," I have nothing to h w me
~-
.A .DDE N DA .
223
223
DD D .
nce the earer part o ths work was prnted the mendment
ce- hanceor o ng-au has con rmed the opnons menta u
whch he had pre ous e pressed on the three oow-
ng ponts rst that new matter e stng at the tme
o ng the orgna b t contradcts the orgna
ssue s matter or amendment on and not or suppe-
menta b but that second t does not con-
tradct the orgna ssue the pant ma a ter re-
pcaton ether app or ea e to amend under the
teenth rder o 1 2 or he ma e a suppemen-
ta b at hs opton and thrd that he adopts
the atter course the suppementa b ma be ed
wthout the ea e o the ourt the teenth rder
beng appcabe to amendments on and not to sup-
pementa bs c .
uch are the ponts decded n the recent case o
Pemherton . a ord d . n that case a suppementa
b had been ed a ter repcaton to brng orward
new matter whch had occurred pror to the ng o
the orgna b. t appears that the new matter was
mere an addton to the orgna case and not a con-
tradcton o t. n a demurrer or that the new acts
were matter or amendment and not or suppementa
b and that there ore the case came wthn the
meanng o the teenth rder o 1 2 r anceot
hadwe . sad ha e nothng to shew me
a upra p. 12. c hd. p. 13.
h bd. pp. G 7. . 1 43 7 urst 364.
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Origin I m
01 ItlZl d by
Amendment that a part) is by the Fifteenth Order deprived of a
and Supple- ' ,
mental Bill. right which he had before that Order, of filing a sup-
'"-v---J plemental bill, and putting in issue matter discovered
since the filing of the replication :-that was the old
practice, andprima facie that right remains. . . . ..
In the case of TIle Attorney-General v. The Fish-
monqers' Company (e), Lord Cottenham referred to the
two cases, of Colclough v. Evans and Crompton Y.
Wombioell, 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 hisbill, but
called it asupplemental bill. A demurrer was put in.
The grounds upon which 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 inthe 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
upplemental bill to bemade use of, when it wa plain
that it wasa case for amendment. The second ca e,
Crompton v. Wombuiell, wasthe common caseof asup-
plemental bill filed after the time at which amendment
could be allowed. What the Lord Chancellor said in
The AttoTney General v. 'The Fishmongers' Company,
doe not at all pl'ejudice the question."
The reporter of the abovecaseof Pemberton v. Wal-
ford quotes Lord Cottenham's words-" If that is to
be done by supplemental bill uiliicl: might be done by
amendment, the Court would require as much strictness
as it would require fo'r the purpose of amendment, if
leave tcere required (f)"-a deciding that the leave of
(e) Supra, p. 13. (f) 4. Myl. & Cr. 9.
Addenda. 224
224
ddenda.
mendment
and uppe-
menta .
that a part s b the teenth rder depr ed o a
rght wch he had be ore that rder o ng- a sup-
pementa b and puttng n ssue matter dsco ered
snce the ng o the repcaton : that as the od
practce and prma ace that rght remans
n the case o T/e ttorne -Genera . The sh-
mongers ompan e . ord ottenham re erred to the
two cases o ocough . ans and rompton .
ombwe and seemed to thnk that there was some
nconsstenc between them but thnk the rea ne
o dstncton between those two cases was er pan.
n ocough . ans the pant amended hs b but
caed t a suppementa b demurrer was put n.
The grounds upon wdch aowed the demurrer were
that the thng caed a suppementa b was rtua
an amendment because t sought to state acts dame-
trca opposte to what had been stated n the orgna
b and though t was reasonabe to ha e the matter
cear stated upon the peadngs et as the proper
wa or so dong was b amendng the orgna b
there ore sad woud not aow that thng caed a
suppementa b to be made use o when t was pan
that t was a case or amendment. The second case
rompton . ombwe was the common case o a sup-
pementa b ed a ter the tme at whch amendment
coud be aowed. hat the ord hanceor sad n
The ttorne Genera . he shmongers ompan
does not at a pre udce the ueston.
The reporter o the abo e case o Pemberton . a-
ord uotes ord ottenham s words that s to
be done b suppemented b whch mght be done b
amendment the ourt coud re ure as much strctness
as t coud re ure or the purpose o ame7dment
ea e cere re ured as decdng that the ea e o
p upra p. 13. / M . r. 9.
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Amendment
and Supple-
mental Bill.
'-v---I
Original from
Digitized by
C Supra, pp. Ill, 131. (g) Supra, p. 99.
(ft) Rolls, May 5,18-13.
the Court is neces 'ary for filing the supplemental bill)
in oppo ition to Sir Lancelot Shad well's opinion. But
he surely misapprehends His Lord hip'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 i simply this ;-
" I avoid the question as to lea.ve; 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 i
necessal'y ;-and if leave is required, the motion i too
I " g'enera .
The doctrine laid down in a former passage (9), that Bill of Revi-
such part of a bill of revivor and supplement as is a vO~I~:~I~~P-
bill of revivor, is distinct from such part as is a bill of '-v---I
supplement, is confirmed by the recent case of Egre-
mont v. Cowell (It). 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 ought to have been brought 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 the Abatement
death or marriag-e of a sole plaintiff, the new plaintiff ;~~l~~,~e~~~~n
must revive against all the defendants. To this we ~
may add, that even if the bill has been taken pro
confesso, by order, against any defendant, such defend-
ant must nevertheless he made a party to the revivor
suit, in order that the new plaintiff may obtai:
225 Addenda.
ddenda. 225
te ourt s necessar or ng the suppementa b mendment
n opposton to r anceot had we s opnon. ut nenta u
he sure msapprehends s ordshp s meanng. .
The words ea e were re ured o er-rde the whoe
sentence and not mere the atter part o t. th
submsson s ordshp s meanng s smp ths
a od the ueston as to ea e or ea e were
re ured the suppementa b woud re ure as much
strctness as the amendment : there ore we ha e ths
aternat e ea e s not re ured no order s
necessa and ea e s re u-ed the moton s too
genera.
The doctrne ad down n a ormer passage that o e -
such part o a b o re or and suppement as s a pement
b o re or s dstnct rom such part as s a b o -
suppement s con rmed b the recent case o gre-
mont . owe h . n that case on a moton b the
de endant to dscharge the usua order or re or
whch had been obtaned upon the ng o a b o
re or and suppement on the ground that the new
sut ouo-ht to ha e been brouoht to a decree ord
angdae M. . hed that the course whch had been
adopted was the proper one name that o re ng
the sut b the common order and then proceedng to
take a decree upon the suppementa matter.
e ha e seen that where a sut abates b te batement
death or marrage o a soe pant the new pant r /
must re e aganst a the de endants. To ths we -
ma add that e en the b has been taken p -o
con esso b order aganst an de endant such de end-
ant must ne ertheess be made a part to the re or
sut n order that the new pant ma obtan
upra p. 99. upra pp. 131.
h o Ma 5 1313.
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Oriqinal from
DigitI zedby
(k) Marten v. Whichelo, 1841, 1 (m) Phelps v, Sproule, 1831, 4
Cr. & Phil. 257, 259. Sim. 321.
(I) Vide supra, p. 153.
Abatement the benefit of the order for taking the bill p1'O con-
after Bill taken .
pro confesso. fesso (k).
"-,.----I We have seen that where a personal representative,
Administrator d f' d . . di d hi 1
de bonis non. a eren ant In a SUIt, res, an IS persona represen-
'---v---'tative is 110t the personal representative of the original
testator, the suit is revived against the administrator
de bonis non of the original testator (l). 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, not upon the plaintiff, but upon
the administrator de bonis non (m).
Addenda.
226
226 ddenda.
batement the bene t o the order or takng the b pro con-
a ter taken . or
pro con esso. k .
e ha e seen that where a persona representat e
dmnstrator p .- . -
de bons non. deendant n a sut des and hs persona represen-
tat e s not the persona representat e o the orgna
testator the sut s re ed aganst the admnstrator
de bons non o the orgna testator . nder these
crcumstances t has been decded that the persona
representat e o the rst persona representat e s not
a necessar part to the sut and there ore ought not
to be brought be ore the ourt ether b b o re -
or or b an other process because the rght to ca
upon hm or an account o the rst persona repre-
sentat e s assets as notupon the pant but upon
the admnstrator de bons non m .
k Marten . hcheo 1 m Pheps . proue 1 31 4
r. Ph. 257 259. m. 321.
de supra p. 153.
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PRECEDENTS.
OF
APPENDIX
PP D
P D T
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Original from
Digit!zed by
I N C H A N C E R Y .
To the Right Honorable, &c.
Humbly complaining, sheweth unto your Lordship I .Supple-
YOllr orator Peter Barnes of &c., that on or about ~
&c. your orator exhibited hi original bill of C0111- Original bill
plaint in thi Honorable 'ourt against .J ohn \Villi byapu~chasel'
. ' for specific pel'-
the defendant hereinafter named, as defendant thereto, formance by
thereby stating a certain memorandum of agreement the heir of the
, vendor.
dated the 5th day of J uly 1839, and made between
Edward Willis therein de cribed of the one part, and
yOUI 'orator of the other part, and signed by the said
Edward Wil lis, whereby the said Edward 'Villi
agreed to sell to your orator a certain freehold clo e
called &c., therein particularlj described, and of which
the aid Edward Will is was seised in fee, for the sum
of 560; And further stating the delivery by the said
Edward Willis of the ab tract of his title, and the
acceptance of uch title by your orator; And further
stating the death of the said Edward Willis inte tate,
and that he left the aid J ohn Wil lis hi only on
and heir at law; and that I tter.:: of admini tration of
the e tate and effect of the said Edward Willi had
been granted to the aid J ohn "Villi. by the Prerogative
I .Supplemental Bill to introduce New Matter uihich.
existed at the Time of Filing tlie Oriqinal Bill.
-Vide Clcap, II.
PRECEDENTS.
P D T .
. uppemtn d to ntroduce ew Matter whch
e sted at the Tme o n the r na .
de ha . .
hancer .
To the ght onorabe kc.
umb companng- sheweth unto our ordshp . uppe-
our orator Peter arnes o c. that on or about nt 11-
e. our orator e hbted hs orgna b o com- rgna b
pant n ths onorabe ourt aganst ohn s P ser
the de endant herena ter named as de endant thereto o m an e b
thereb statng a certan memorandum o ao-reement
endor.
dated te 5th da o u 1 39 and made between
dward s theren descrbed o the one part and
our orator o the other part and sgned b the sad
dward s whereb the sad dward s
agreed to se to our orator a certan reehod cose
caed c. theren partcuar descrbed and o whch
the sad dward s was sesed n ee or the sum
o 560 nd urther statng the de er b the sad
dward s o the abstract o hs tte and the
acceptance o such tte b our orator nd urther
statn the death o the sad dward s ntestate
and that he e t the sad ohn s hs on son
and her at aw and that etters o admnstraton o
the estate and e ects o the sad dward s had
been granted to the sad ohn s b the Prerogat e
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Origin 11rom
DI gI tI zed by
1.Supple- Court of Canterbury; And further stating applications
mental Bill. h f h idJ h Willi
'-v-' on t e part 0 your orator to t e salon I IS 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 "Whichhad, before the date of the said contract for
sale, been mortgaged by the said Edward Willis to one
J ohn 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 closeto
your orator free fromincumbrances, and that the said
J ohn 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
J ohn 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
compri ed in the said agreement to your orator, or as
he should direct, upon your orator paying to the said
J ohn Will is the sum of 560, 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 J ohn 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
circum tances of his case might require, and to your
Lordship should seemmeet.
Appearance And your orator further sheweth that the aid J ohn
and answer, Willi bei d 1 d' h d
allegingaprior 1 IS, emg' uy serve Wit process, appeare to
Precedents. 230
230 Precedents.
. uppe- ourt o anterbur nd urther statng appcatons
on the part o our orator to the sad ohn s to
per orm the sad agreement so entered nto b hs
ather as a oresad and hs re usa to do so nd
chargng that the sad cose caed c. ormed part
o a consderabe estate caed esetne the whoe
o -whch had be ore the date o the sad contract or
sae been mortgaged b the sad dward s to one
ohn aunders or 12 000 whch mortgage debt
was st due and owng nd chargng that the sad
dward s woud ng be bound to redeem
the sad mortgage n order to con e the sad cose to
our orator ree rom ncumbrances and that the sad
ohn s was bound to do so to the e tent o hs
ather s assets whch our orator charged were amp
su cent or the same nd pra ng that the sad
ohn s mght be decreed spec ca to per orm
the sad agreement so entered nto b the sad dward
s as a oresad and to con e and procure a
proper partes to on n con e ng the sad cose
comprsed n the sad agreement to our orator or as
he shoud drect upon our orator pa ng to the sad
ohn s the sum o b whch our orator
thereb o ered to do and n a respects to per orm
the sad agreement on our orator s part and n
case the sad ohn s shoud not admt assets o
hs sad ather su cent to enabe hm to per orm
the sad agreement then that the usua accounts o
the rea and persona estate o the sad dward s
mght be taken and that our orator mght ha e
such urther or other ree n the premses as the
crcumstances o hs case mght re ure and to our
ordshp shoud seem meet.
ppearance nd our orator urther sheweth that the sad ohn
ae ngTpror s beng du ser ed wth process appeared to
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Y
our orator's aid bill, and put in hi an wer thereto, 1.Supple-
. h ld mental Bill.
whereby he alleged, among other things, that e cou "-v----I
not perform the said agreement of the 5th day of J uly mortgage on
1839, without first redeeming the said mortgage so the property.
made to the said J ohn Saunders as aforesaid, and that
the assets of the said .J ohn 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- &c.
nesses have been examined on both sides, but publica-
tion has not yet passed; as by the said bill and pro-
ceedings, now remaining a of record in this Honor-
able Court, reference being had thereto, will appear.
And your orator further sheweth, by way of supple- Supplemental
h h 1 1 d
1 matter' that
ment, t at your orator as ate y, an Since t re ex- mortgagee is
amination of witnesses in the said cause, discovered, willing to join
1 f:
. h 1 id J h S d . in conveying.
as the act IS, t at tre salon aun ers now IS,
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
aid mortgage, upon receiving your orator's purchase
money in discharge, pro tanto, of the said mortgage
debt.
And your orator charges that such information was Discovery of
fir t given to your orator by means of a letter ad- the StU IPple-tt
men a ma er.
dressed by the said J ohn 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 tome, 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
hi father and myself at the time when the sale to
231
Precedents,
Precedents. 231
our orator s sad b and put n hs answer thereto . uppe-
whereb he aeged among other thngs that he coud _
not per orm the sad agreement o the 5th da o u mortgage on
1 39 wthout rst redeemng the sad mortgage so Propert
made to the sad ohn aunders as a oresad and that
the assets o the sad ohn s were not su cent
to enabe hm so to do.
nd our orator urther sheweth that the sad epcaton
answer has been reped to b our orator and wt-
nesses ha e been e amned on both sdes but pubca-
ton has not et passed as b the sad b and pro-
ceedngs now remanng as o record n ths onor-
abe ourt re erence beng had thereto w appear.
nd our orator urther sheweth b wa o suppe- uppementa
ment that our orator has ate and snce the e - ort agee s
amnaton o wtnesses n the sad cause dsco ered wng to on
as the act s that the sad ohn aunders now s con e ng.
and awa s snce the date o the sad agreement
has been read and wng to concur n con e ng
the sad cose to our orator dscharged rom hs
sad mortgage upon rece ng our orator s purchase
mone n dscharge 2 T o tanto o the sad mortgage
debt.
nd our orator charges that such n ormaton was Dsco er o
rst g en to our orator b means o a etter ad- enta ma tter.
dressed b the sad ohn aunders to Mr. uke our
orator s soctor and dated :c. part o whch was n
the words and gures oowng that s to sa
Mr. s s re usa to carr nto e ect hs agree-
ment wth Dr. arnes s unaccountabe to me because
he knows that ha e awa s been wng and e en
desrous to con rm the sae and to reease the pre-
mses rom m mortgage on rece ng the 560 to-
wards m debt. Ths n act was understood between
hs ather and m se at the tme when the sae to
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Original f m
01gI t I zed by
Calls for
answer.
Charges.
1. Supple- Dr. Barnes was made;" as by such letter, reference
....m_ eo_ tV 'al_ B_ i _ l1._ , bei ng had thereto, wi ll more fully appear.
And your orator charges therefore that i t i s uni m-
portant whether the sai d J ohn 'V i lli s has assets of hi s
father suffi ci ent to redeem the mortgage debt so due
to the sai d J ohn Saunders as aforesai d, i nasmuch as
the sai d J ohn Saunders i s wi lli ng to be parti ally re-
deemed, and the purchase money of your orator i s
suffi ci ent for that purpose.
And your orator charges that the sai d J ohn Wi lli s
ought to be decreed to joi n wi th the sai d J ohn Saun-
ders, (whose concurrence your orator undertakes to
procure,) i n conveyi ng the sai d close to your orator,
upon payment by your orator of the sai d sumof 560
to the sai d J ohn Saunders, i n part di scharge of hi s
sai d mortgage debt.
To the end therefore that the sai d defendant may,
i f he can, shew why your orator should not have the
reli ef hereby prayed, and Inay upon hi s corporal oath,
accordi ng to the best and utmost of hi s knowledge,
remembrance, i nformati on, and beli ef, full, true,
di rect, and perfect answer make to such of the seve-
ral i nterrogatori es herei nafter numbered and set forth,
as by the note hereunder wri tten he i s requi red to
answer; that i s to say ;-
l. Whether on or about &c. or at some other and
what ti me, your orator di d not exhi bi t hi s ori gi nal
bi ll of complai nt i n thi s Honorable Court agai nst
such person, and of or to such purport or effect, as
herei nbefore i n that behalf stated, or agai nst some
other and what person, and of or to some other ana
what purport or effect, or how otherwi se.
2. Whether thereupon such proceedi ngs were not
had i n the sai d cause as are herei nbefore i n that
behalf tated, or how otherwi se,
Precedents. 232
232
Precedents.
1. uppe-
menta .

harges.
as or
answer.
Dr. arnes was made as such etter re erence
beng had thereto more u appear.
nd our orator charges there ore that t s unm-
portant whether the sad ohn s has assets o hs
ather su cent to redeem the mortgage debt so due
to the sad ohn aunders as a oresad nasmuch as
the sad ohn aunders s wng to be parta re-
deemed and the purchase mone o our orator s
su cent or that purpose.
nd our orator charges that the sad ohn s
ought to be decreed to on wth the sad ohn aun-
ders whose concurrence our orator undertakes to
procure n con e ng the sad cose to our orator
upon pa ment b our orator o the sad sum o 560
to the sad ohn aunders n part dscharge o hs
sad mortgage debt.
To the end there ore that the sad de endant ma
he can shew wh our orator shoud not ha e the
ree hereb pra ed and ma upon hs corpora oath
accordng to the best and utmost o hs knowedge
remembrance n ormaton and bee u true
drect and per ect answer make to such o the se e-
a nterrogatores herena ter numbered and set orth
as b the note hereunder wrtten he s re ured to
answer that s to sa
1. hether on or about c. or at some other and
what tme our orator dd not e hbt hs orgna
b o compant n ths onorabe ourt aganst
such person and o or to such purport or e tect as
herenbe ore n that beha stated or aganst some
other and what person and o or to some other and
what purport or e ect or how otherwse.
2. hether thereupon such proceedngs were not
had n the sad cause as are herenbe ore n that
beha stated or how otherwse.
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Original from
U N I V E R S lT V 0 F C A U F OR N I A
Digitized by
3. Whether your orator has not, anJ whether not 1. Supple-
I
,1 h h . h .. f wi mental Bill
late y, anu w et er not smce t e exammation 0 wit- ~
nesses in the said cause, or at orne other and what
period, discovered, and whether it is not the fact, that
the said J ohn aunders 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
aid clo e. to your orator, discharged from his said
mortgage, upon receiving your orator's purchase
money in discharge PTO tanto of the said mortgage
debt, or how otherwise.
4. Whether such information" as not first given to
your orator by mean 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 \V hat 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 the rea-
sons hereinbefore in that behalf given, unimportant,
for the purposes of these suits, whether the said
defendant has assets of his father sufficient to redeem
the said mortgage debt, or how otherwise.
7. Wh ther the aid defendant ought not to be
decreed to join with the said J ohn Saunders in such
conveyance a hereinbefore in that behalf stated, or
233 Precedents.
Precedents. 233
3. hether our orator has not and whether not . uppe-
ate and whether not snce the e amnaton o wt-
nesses n the sad cause or at some other and what
perod dsco ered and whether t s not the act that
the sad ohn aunders now s and whether not that
he awa s snce the date o the sad agreement has
been read and wng to concur n con e ng the
sad cose to our orator dscharged rom hs sad
mortgage upon rece ng our orator s purchase
mone n dscharge ro tanto o the sad mortgage
debt or how otherwse.
4. hether such n ormaton was not rst en to
our orator b means o such etter as herenbe ore n
that beha stated or some other and what etter or
b some other and what means or how otherwse and
when was such n ormaton rst g en to our orator.
5. hether such etter as s herenbe ore mentoned
to bear date :c. was not addressed b such person to
such person and whether t was not o such date and
part n such words and gures or o or to such
purport or e ect as herenbe ore n that beha stated
or addressed b some other and what person or per-
sons to some other and what person or persons o
some other and what date and wth respect to the
part thereo herenbe ore n that beha mentoned n
some other and what words and gures or o or to some
other and what purport or e ect or how otherwse.
6. hether t s not and whether not or te rea-
sons herenbe ore n that beha g en unmportant
or the purposes o tese suts whether the sad
de endant has assets o hs ather su cent to redeem
the sad mortgage debt or how otherwse.
7. hether the sad de endant ought not to be
decreed to on wth the sad ohn aunders n such
con e ance as herenbe ore n that beha stated or
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Original from
DI _I tI zed by
in some other conveyance of the same nature, upon
such payment by your orator as hereinbefore in that
behalf mentioned, or some other and what payment,
or how otherwise; and, if not, why not.
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 J ohn Saunders as
aforesaid, then that he may be decreed to join with
the said J ohn Saunders in conveying the said close
comprised in the said agreement of the 5th day of
J uly 1839, unto your orator and his heirs, or as he
shall direct, upon your orator paying to the said J ohn
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 5th
day of J uly 1839 on his part, and also undertaking' to
procure the concurrence of the said J ohn Saunders in
such conveyance as aforesaid; and that your orator
may have such further or other relief in the premise
as the circumstances of his case may require, and to
your Lordship shall seem meet; May it please &c.
[subpoena against J ohn Willis].
The defendant is required to answer all the above
interrogatories.
Precedents.
Prayer.
1. Supple-
mental Bill.
..___...,
234
234 Precedents.
. uppe- n some other con e ance o the same nature upon
enta . pa ment b our orator as herenbe ore n that
beha mentoned or some other and what pa ment
or how otherwse and not wh not.
Pra er. nd that our orator ma ha e the same ree
aganst the sad de endant as he mght ha e had
the acts herenbe ore stated and charged b wa o
suppement had been stated n our orator s sad
orgna b. nd n case the sad de endant sha
contnue to aege that he has not assets o the sad
dward s su cent or the redempton o the
mortgage debt so due to the sad ohn aunders as
a oresad then that he ma be decreed to on wth
the sad ohn aunders n con e ng the sad cose
comprsed n the sad agreement o the 5th da o
u 1 39 unto our orator and hs hers or as he
sha drect upon our orator pa ng to the sad ohn
aunders the sad purchase mone or sum o 560
towards dscharge o the sad mortgage debt our
orator hereb o erng to pa such sum and n a
respects to per orm the sad agreement o the 5t
da o u 1 39 on hs part and aso undertakng to
procure the concurrence o the sad ohn aunders n
such con e ance as a oresad and that our orator
ma ha e such urther or other ree n the premses
as the crcumstances o hs case ma re ure and to
our ordshp sha seem meet Ma t pease kc.
subpoena aganst ohn s .
The de endant s re ured to answer a the abo e
nterrogatores.
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Original from
Digitized by
II. Supplemental Bill against New Parties iolco
ought to haue been made Defendants to the
Original Bill.-Vide Chap. II.
IN CHANCERY.
Humbly complaining sheweth unto your Lordship II. upple-
di .1 H II f & mental Bill. ~
your orator Fer manu artwe 0 c. that on &c. '-v----'''
your orator exhibited his original bill of complaint in Original bill
this Honorable Court which was afterwards amended for redemption
, of amortgage.
by anorder of this Court, and which bill so amended
was against Timothy Naylor as defendant thereto;
tl~eTeby tating 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 sumof
7000 to your orator lent and advanced by the aid
Timothy Naylor, your orator demised certain freehold
hereditaments in the county of Salop therein described
unto the said Timothy Naylor, his executors, adminis-
trators, anti assigns, for a term of fivehundred year,
at a peppercorn rent, subject nevertheles to redemp-
tion on payment by your orator, his heirs executors,
administrators, or a signs, unto the said Timothy
Naylor, his executors, admini trators, or assigns, of
the sumof 7000, with interest for the same after the
rate of five per cent. per annum, on the 1st day of
Augu t 1809; And further stating that the aid U I D
of 7000 was not paid on the day so appointed for
that purpo e as afore aid, and that subsequently the
said Timothy Naylor entered into the receipt of the
rents and profits of the said hereditament, and had
thereby long since paid himself the whole of the said
mortga 'e debt and intere t; And praying that an ac-
count might be taken, under the direction of thi
235 Precedents.
Precedents. 235
. uppementa aganst ew Partes wo
ought to ha e been made De endants to the
rgna . de hap. .
n hancer .
To the ght onorabe c.
umb companng sheweth unto our ordshp . uppe-
our orator erdnand artwe o c. that on :c. .
our orator e hbted hs orgna b o compant n rgna b
ths onorabe ourt whch was a terwards amended o mo tgagT
b an order o ths ourt and whch b so amended
was aganst Tmoth a or as de endant thereto
thereb statng an ndenture dated the 1st da o
ebruar 1 09 and made between our orator o
the one part and the sad Tmoth a or o the
other part whereb n consderaton o the sum o
7000 to our orator ent and ad anced b the sad
Tmoth a or our orator demsed certan reehod
heredtaments n the count o aop theren descrbed
unto the sad Tmoth a or hs e ecutors admns-
trators and assgns or a term o e undred ears
at a peppercorn rent sub ect ne ertheess to redemp-
ton on pa ment b our orator hs hers e ecutors
admnstrators or assgns unto the sad Tmoth
a or hs e ecutors admnstrators or assgns o
the sum o 7000 wth nterest or the same a ter the
rate o e per cent per annum on the 1st da o
ugust 1 09 nd urther statng that the sad sum
o 7000 was not pad on the da so apponted or
that purpose as a oresad and that subse uent the
sad Tmoth a or entered nto the recept o the
rents and pro ts o the sad heredtaments and had
thereb ong snce pad hmse the whoe o the sad
mortgage debt and nterest nd pra ng that an ac-
count mght be taken under the drecton o ths
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Original from
DI _itlzed b
cc.
Appearance
and answer
II. Supple- Honorable Court, of the rents and profits of the said
mental Bill. I di . d b h id T" I N I
'-v----Jiere itaments receive y t e sal imot ly ay or
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-
aid, 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, 011 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
uch further or other relief in the premises as the
circumstances of his case might require, and to your
Lordship should seem meet.
And your orator further heweth unto your Lord-
ship, that the said Timothy Naylor, being duly served
with proces , appeared to your orator's said bill, and
put in his an. wer thereto, which being replied to, wit-
Precedents. 236
236 Precedents.
. uppe- onorabe ourt o the rents and pro ts o the sad
menta . heredtaments rece ed b the sad Tmoth a or
snce he so entered nto the recept thereo as a ore-
sad or b an person or persons b hs order or or
hs use and aso an account o the nterest whch ac-
crued rom tme to tme on the sad sum o 7000
or on so much thereo as rom tme to tme remaned
due and that a ter deductng rom tme to tme such
nterest rom the rents and pro ts so rece ed as a ore-
sad the resdue o such rents and pro ts mght be
consdered as ha ng been rece ed rom tme to tme
n or towards dscharge o the sad prncpa sum o
7000 and that t mght be ascertaned whether the
same had been who sats ed or whether an thng
and what remaned due n respect thereo and that
the sad Tmoth a or mght be decreed to assgn
or surrender the heredtaments so demsed to hm as
a oresad unto our orator or as he shoud drect and
to de er to hm a deeds papers and wrtngs n
hs custod or power reatng thereto upon our
orator pa ng to the sad Tmoth a or what an -
thng shoud be ound to be st due on account o
the sad mortgage whch our orator thereb under-
took to do and n case on takng the sad account
t shoud be ound that the sad Tmoth a or had
been o erpad then that the sad Tmoth a or
mght be decreed to pa to our orator the surpus
rece ed b hm be ond hs sad mortgage debt and
the nterest thereo and that our orator mght ha e
such urther or other ree n the premses as the
crcumstances o hs case mght re ure and to our
ppearance nd our orator urther sheweth unto our ord-
and answer p t at the sad Tmoth a or beng du ser ed
wth process appeared to our orator s sad b and
put n hs answer thereto whch beng reped to wt-
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Original from
Digitized by
nesses were examined, and publication pa sed but II. Supple-
, mental Bill.
the cau e has not yet been heard; as by the said bill "-..---J
and proceedings, now remaining as of record in thi
Honorable Court, on reference thereto will mor
fully appeal'.
And your orator further sheweth, by way of sup- Supplemental
h 1 1 I d
d h matter.
plement, t at your orator las ate y iscovere ,as ten' f
. 1covery 0
fact IS, that by an Indenture bearmg date the 29th an as ignment
day of April 1812, and made between the said Timothy o~t~l~:~r~-
Naylor of the first part, Cecilia Dering, Spinster, fh~mortgaiee,
. d d f 1 d d H H ']1 on his mar-
since ecease ,0 t re secon part, an enry urn riaue.
and William Sketch ley, two of the defendants herein-
after named, and Charles Hurrill Dering, since de-
cea cd, of the third part (being the settlement made
in consideration of a marr-iage 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
Hun-ill, 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
Ist day of February 1809, as aforesaid, unto the said
Henry Hurrill, William Sketchley, and Charles Hur-
rill 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 Hurvill Dering', their exe-
cutors, administrators, and assigns, should stand po -
sessed of the said principal sum of 7000, and the
interest to accrue thereon, and the securities for the
237
Precedents.
Precedents. 237
nesses were e amned and ub caton passed but - uppe-
1 1 - menta .
the cause has not et been eard as b te sad b /
and proceedngs now remanng as o record n ths
onorabe ourt on re erence thereto w more
u ap ear.
nd our orator urther sheweth b wa o sup- uppementa
pement that our orator has ate dsco ered as the
11 Dsco er o
act s that b an ndenture bearng date the 29th an assgnment
da o pr 1 12 and made between the sad Tmoth mort-
_ gage debt b
a or o the rst part eca erng pnster the mortgagee
snce deceased o the second part and enr nrr o
and am ketche two o the de endants heren-
a ter named and hares urr Derng snce de-
ceased o the thrd part beng the settement made
n consderaton o a marrage then ntended and
a terwards soemn ed between the sad Tmoth a -
or and eca Derng the sad Tmoth a or
assgned the sad prncpa sum o 7000 and the n-
terest to accrue due thereon unto the sad enr
urr am ketche and hares urr
Derng ther e ecutors admnstrators and assgns
absoute and he aso assgned the sad heredta-
ments so demsed to hm b the sad ndenture o the
1st da o ebruar 1 09 as a oresad unto the sad
enr urr am ketche and hares ur-
Derng ther e ecutors admnstrators and as-
sgns or a the then resdue o the sad term o e
hundred ears theren sub ect ne ertheess to such
e ut o redempton as the same were then sub ect to
under the sad ast mentoned ndenture. nd t was
thereb decared that the sad enr urr am
ketche and hares urr Derng ther e e-
cutors admnstrators and assgns shoud stand pos-
sessed o the sad prncpa sum o 7000 and the
nterest to accrue thereon and the securtes or the
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Origin 11rom
['I I qitI zed by
Precedents.
The trustees
and issueare
necessary par-
ties.
marriage.
Issue of the
238
II. Supple- same, in trust for the said Timothy Naylor, his exe-
~ent:l Bill. , 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 sumof 7000 to the said Timothy Naylor during
his life; and after his death, upon trust to pay such
interest to the saidCecilia 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, an 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 whomhave attained the ageof twenty-
one years; and that the said Cecilia Dering departed
this life on the 15th day of J une 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, andCecilia 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.
23
Precedents.
. uppe-
menta .
ssue o the
marrage.
The trustees
and ssue are
necessar par-
tes.
same n trust or the sad Tmoth a or hs e e-
cutors admnstrators and assgns unt the sad then
ntended marrage shoud be soemn ed and rom
and a ter the soemn aton thereo upon the trusts
therena ter decared and n part herena ter stated
that s to sa upon trust to pa the nterest o the
sad sum o 7000 to the sad Tmoth a or durng
hs e and a ter hs death upon trust to pa such
nterest to the sad eca Derng durng her e and
a ter the decease o the sur or o them the sad
Tmoth a or and eca Derng upon trust to pa
and d de the sad prncpa sum o . 7000 to and
e ua among a the chdren o the sad then n-
tended marrage who beng sons shoud attan the
age o twent -one ears or beng daughters shoud
attan that age or be marred or ther respect e e e-
cutors admnstrators or assgns as b such nden-
ture o settement on re erence thereto w more
u appear.
nd our orator urther sheweth b wa o suppe-
ment that there were ssue o the sad marrage two
chdren on that s to sa hares a or and
eca a or two o the de endants herena ter
named both o whom ha e attaned the age o twent -
one ears and that the sad eca Derng departed
ths e on the 15th da o une 1 16 and that the
sad hares urr Derng departed ths e on the
20th da o December 1 29.
nd our orator charges that the sad enr urr
am ketche hares a or and eca a or
are b the means a oresad nterested n the sad sum
o 7000 and the securtes or the same and are
necessar partes to ths sut and that our orator s
entted to ha e the same ree rom hs sad orgna
b as the had been made partes thereto.
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Original from
Digitized by
(a) These words should be in- calls for an answer to the original
serted 'Whenthe supplemental bill bill.
To the end therefore that the said defendants may, II. Supple-
if they can, shewwhy your orator hould not have the ~
relief hereby, and by his said original bill (a) prayed, Calls for
and may upon their several and respective corporal answer to
h
di h b d f h . I both bills.
oat s, accor mg tot e est an utmost 0 t ell' severa
and respective knowledge, remembrance, information,
and belief, full, true, direct, and perfect answer make
to such of the several interrogatories inyour orator'
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. 'rVhether &c.
And that your orator may have the same relief fromPrayer.
his said original bill, as if the said defendants had been
made parties thereto; and that the said defendants may
concur inthe 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 shan seemmeet; May
it please &c. [subpoenafor 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 inthe original bill numbered respec-
tively &c. and all the above interrogatories.
239 Precedents.
Precedents. 239
To the end there ore that the sad de endants ma uppe-
the can shew wh our orator shoud not ha e the -
ree hereb and b hs sad orgna b a pra ed as or
and ma upon ther se era and respect e corpora answer to
oaths accordng to the best and utmost o ther se era
and espect e knowedge remembrance n ormaton
and bee u true drect and per ect answer make
to such o the se era nterrogatores n our orator s
sad orgna b numbered and set orth and aso to
such o the se era nterrogatores herena ter num-
bered and set orth as b the note hereunder wrtten
the are respect e re ured to answer that s to
sa
1. hether c.
nd that our orator ma ha e the same ree rom Pra er.
hs sad orgna b as the sad de endants had been
made partes thereto and that the sad de endants ma
concur n the assgnment or surrender thereb pra ed
and that our orator ma ha e such urther or other
ree n the premses as the nature o hs case ma
re ure and to our ordshp sha seem meet Ma
t pease :c. subpoena or appearance and answer to
both bs aganst enr urr am ketche
hares a or and eca a or .
The de endants are re ured to answer the nter-
rogatores n the orgna b numbered respec-
t e c. and a the abo e nterrogatores.
a These words shoud be n- cas or an answer to the orgna
serted when the suppementa b b.
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Oriqinal from
Digitized by
account.
Original bill
against execu-
tors for an
III. Supple- Humbly complaining sheweth unto your Lord hip
mental Bill. .'
"--..,.--I your orator J ohn FranCIS Perry of &c. that on or
about the 18th day of J une 1841, your orator exhibited
his original bill of complaint in this Honorable Court,
which was afterwards amended by an order of this
Court, and which bill so amended was against Anthony
Beaumont, and against Charles Tyler when he should
come within the jurisdiction of this Court; tllereby
stating the will of Charles Sheppard, whereby he be-
queathed unto the said Anthony Beanmont, whom he
appointed executor, all his stocks and funds upon trust
to pay the interest thereof to Rose Perry, 0long 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 <liewithout having been mar-
ried, that the said Anthony Beaumont should tran fer
the same to such person or persons as she should ap-
point; and, in default of appointment, to her next of
kin; and he gave the residue of his property to his
executor upon the same trusts: And [urther 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 haying heen married,
and without haying' made any appointment of the pro-
perty 0 bequeathed as aforesaid and that she left
To the Right Honorable &c.
IN C H A N C E R Y .
III. Supplemental Bill against the Representative of
a Defendant to the Oriqinal Bill, uiho Iiad died
before Appearance; and against uihose Repre-
sentative therefore the Suit could not be reoiued.
-Vide Chap.II.
Precedents. 240
240 Precedents.
. uppementa aganst the epresentat e o
a De endant to the rgna who had ded
be ore ppearance and aganst whose epre-
sentat e the e ore the ut coud not he re ed.
de hap. .
n hancer .
To the ght onorabe kc.
. uppe- umb companng- sewet unto our ordshp
menta . orator ohn rancs Perr o c. that on or
about the 1 th ca o une 1 41 our orator e hbted
rgna b g orgna b o compant n ths onorabe ourt
tors or an whch was a terwards amended b an order o ths
account. ourt and whch b so amended was aganst nton
eaumont and aganst hares T er when he shoud
come wthn the ursdcton o ths ourt thereb
s a w the w o hares heppard whereb he be-
ueathed unto the sad nthon eaumont whom he
apponted e ecutor a hs stocks and unds upon trust
to pa the nterest thereo to ose Perr so ong as
she remaned unmarred and a ter her death or mar-
rage to trans er the same to the sad hares T er
but n case she shoud de wthout ha ng been mar-
red that the sad nthon eaumont shoud trans er
the same to such person or persons as she shoud ap-
pont and n de aut o appontment to er ne t o
kn and he ga e the resdue o hs propert to hs
e ecutor upon the same trusts: nd urther statng
the death o the sad testator and the probate o hs
w b the sad nthon eaumont and the death o
the sad ose Perr wthout e er ha ng been marred
and wthout ha ng made an appontment o the pro-
pert so be ueathed as a oresad and that se e t
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Onginal from
DI gitized by
R
III. Supple-
mental Bill.
'---..---'
your orator her only brother and ole next of kin;
and praying that it might be declared by this Court
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 such clear residue, as also the interest or divi-
dend 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 01' 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,
A h B t
bei d 1 d wi h &c. of oneof
nt ony eaumon, emg u y serve WIt process, thedefendants.
appeared to your orator's said bill, and put in his
answer thereto, which answer was replied to.
And your orator further sheweth 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 J urisdic-
tion of this Oourt at the time when the bill in this
cause was filed; and if so, whether he had ever since
continued, and whether he was then, out of such
J urisdiction; and it was ordered that the said Master
241 Precedents.
Precedents. 241
our orator her on brother and soe ne t o kn . uppe-
and rm ng that t mght be decared b ths ourt e td .
that our orator as soe ne t o kn o the sad ose
Perr was absoute entted to the resduar per-
sona estate o the sad hares heppard deceased
and that an account mght be taken under the drec-
ton o ths ourt o the persona estate o the sad
hares heppard and the appcaton thereo and o
hs debts and unera and testamentar e penses and
that the cear resdue thereo mght be ascertaned
and that the sad de endant nthon eaumont mght
be decreed to pa trans er or assgn to our orator
as we suc cear resdue a aso the nterest or d -
dends whch had accrued thereon snce the death o
the sad ose Perr and that or the purposes a ore-
sad a necessar n ures mght be made and ac-
counts taken and that our orator mght ha e such
urther or other ree n the premses as the crcum-
stances o the case mght re ure and to our ordshp
mght seem meet.
nd our orator urther sheweth that the sad ppearance
nthon eaumont beng du ser ed wth process hede eTdan
appeared to our orator s sad b and put n hs
answer thereto whch answer was reped to.
nd our orator urther seweth that the sad Decree
cause came on to be heard be ore s ordshp the
Master o the os on the 31st da o Ma 1 42
when s ordshp was peased to order and decree
that t shoud be re erred to the Master o ths ourt
n rotaton to n ure and state to the ourt whether
the de endant hares T er was out o the ursdc-
ton o ths ourt at the tme when the b n ts
cause was ed and so whether he had e er snce
contnued and whether he was then out o such
ursdcton and t was ordered that the sad Master
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rlgln I from
DI rtized b
Further pro-
ceedings.
III. Supple- should also inquire and state, whether the said Rose
mental Bill. P l' . d
'--,,-.-J erry was lvmg or ead; 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, npon 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.
And your orator further heweth that divers pro-
Precedents. 242
242 Precedents.
. uppe shoud aso n ure and state whether the sad ose
menta . Perr was ng or dead and dead when she
ded and who was or were her persona representa-
t e or representat es and who was or were her
ne t o kn ng at the tme o her death and
whether her ne t o kn was or were respect e
ng or dead and who was or were then the per-
sona representat e or representat es respect e o
such ne t o kn an as mght be dead and
the sad Master shoud nd that a proper partes
were be ore the ourt as partes to that sut then t
was ordered that he shoud proceed to n ure and
state whether the sad ose Perr e er and when
ntermarred wth an person and whom and n case
he shoud nd that she dd not ntermarr wth an
person then t was ordered that he shoud n ure
and state whether she e er and when made an and
what appontment o the stocks and unds spec ca
be ueathed b the sad w o the sad testator and
o the resduar persona estate o the sad testator
or o ether and whch o them or o an and what
part thereo respect e and or the better dsco-
er o the matters a oresad the partes were to pro-
duce be ore the sad Master upon oath a books
papers and wrtngs n ther custod or power rea-
tng thereto and were to be e amned upon nterro-
gatores as the sad Master shoud drect and the
sad Master was to be at bert to state an speca
crcumstances as he shoud thnk t and s ord-
shp reser ed the consderaton o a urther drec-
tons and o the costs o that sut unt a ter the sad
Master shoud ha e made hs report and an o the
partes were to be at bert to app to ths ourt
as occason shoud re ure.
urther pro- nd our orator urther sheweth that d ers pro-
ceedngs.
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Original from
Digiti zed by
ceedings have been had before the Master to whom III. Supple.
the said cause wasso referred as aforesaid, but hehas mental Bill.
yet made no report thereon; as by such bill and pro-
ceeding , now remaining as of record in this Honor-
able Court, when produced will more fully appear.
And your orator further sheweth by way of supple- Supplemental
h h 1 1
di d h matter.
ment, t at your orator as ate y iscovereo, as t eDeath of one
fact is, that the said Charles Tyler departed this lifedefendant with.
ill the Kingdom of France, on the 2nd day of J uly ~~~e~ppear.
1841, without ever having been served with process
to your orator's said bill, or having a:popearedthereto.
And your orator further sheweth by way of supple- Administra-
ment that the said Charles Tyler died intestate' and tion,taken out
, , to him,
that on the 1st day of J une 1842letters 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 ~ ! : ~ r n~ ~ ~ pro-
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 ~~:,to both
not have the relief hereby, and by his said original
R2
243 Pr ecedents.
Precedents. 243
ceedngs ha e been had be ore the Master to whom . uppe-
the sad cause was so re erred as a oresad but he has
et made no report thereon as b such b and pro-
ceedngs now remanng as o record n ths onor-
abe ourt when produced w more u appear.
nd our orator urther sheweth b wa o su pe- uppementa
ment that our orator has ate dsco ered as the .
act s that the sad hares T er departed ths e de endant wth-
n the ngdom o rance on the 2nd da o u e
1 41 wthout e er ha ng been ser ed wth process
to our orator s sad b or ha ng appeared thereto.
nd our orator urther sheweth b wa o suppe- dmnstra-
ton ta
to m.
me7t that the sad hares T er ded ntestate and
that on the 1st da o une 1 42 etters o admnstra-
ton o the estate and e ects o the sad hares T er
were granted b the Prerogat e ourt o anterbur
to Thomas enr ebster the de endant hereto as
b such etters o admnstraton when produced w
more u appear.
nd our orator charges that b the means a ore-
sad the sad Thomas enr ebster has become and
now s the ega persona representat e o the sad
hares T er and s entted to a such nterest
an as the sad hares T er had under the sad w
o the sad hares heppard.
nd our orator charges that our orator ought to ams bene t
ha e the same ree aganst the sad Thomas enr ee s
ebster as the persona representat e o the sad
hares T er and the same bene t o the sad sut
and a the proceedngs theren as he mght ha e had
aganst the sad hares T er he had appeared to
our orator s sad b and were now ng.
To the end there ore that the sad Thomas enr as or an-
ebster ma he can shew wh our orator shoud ug
not ha e the ree hereb and b hs sad orgna
r2
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Original f m
DI rnzed b
Prayer.
III. Supple- bill (a), prayed; and that he may upon hiscorporal oath,
mental Bill.
_-.,,....._,, according to the best and utmost of 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-
tbis defendant is required to answer; that is to say,-
I .Whether, &c.
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.]
interrogatories.
NOTE.-It may be thought that conformably with
the doctrines laid down in the second chapter of this
work, Beaumont ought tohave 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 that doctrine appl iesonly
(a) These words should be in- callsfor an answer to the original
serted when the supplemental bill bill.
Precedents.
244
244 Precedents.
. uppe- b a pra ed and that he ma upon hs corpora oath
menta . - . o -
remembrance n ormaton and bee u true d-
rect and per ect answer make to such o the se era
nterrogatores n the sad orgna b numbered and
set orth as b the note thereunder wrtten the sad
hares T er was re ured to answer and aso to
such o the se era nterrogatores herena ter num-
ths de endant s re ured to answer that s to sa
. hether c.
Pra er. nd that t ma be decared b ths onorabe
ourt that our orator s entted to ha e the same
ree aganst the sad de endant as such persona re-
presentat e o the sad hares T er and the same
bene t o the sad orgna sut and o a the pro-
ceedngs theren as he mght ha e had aganst the
sad hares T er he had appeared to our orator s
sad b and were now ng and that t ma be
decreed accordng and that our orator ma ha e
such urther or other ree n the premses as the cr-
cumstances o hs case ma re ure and to our ord-
shp ma seem meet Ma t pease :c. subpoena or
appearance and answer to both bs aganst Thomas
enr ebster.
nterrogatores.
ote. t ma be thought that con ormab wth
the doctrnes ad down n the second chapter o ths
work eaumont ought to ha e been made a de endant
to ths suppementa b as he s nterested n the
ueston who s the egatee under hs testator s w.
ut t w be obser ed that tat doctrne appes on
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Onginal from
DI gI tI zed by
IN CHANCERY.
Between RICHARDMALINS, 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 fO,rLeave to
, File a Supple-
Sheweth, mental Bill in
the Nature of
That on or about &c. the above-named complainant a Bill 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 petithioner to
pure ase an...
county of 'Vilts, by a memorandum in writing bearing estate.
date the 24th day of March 1840, and made between the
said Richard Malins of the onepart and your petitioner
of the other part, and signed by the aid Richard
Malins and your petitioner, contracted to sell to your
IV. Petition for Leave to File a Supplemental Bill
in the Nature of a Bill of Review.-Vide
Chap. III.
III. Supple-
mental Bill.
to a bill filed against a defendant whose interest was
never represented in the original bill. Here, though
Webster was personally a new defendant, he repre-
sented the inter st before represented by Tyler; and
Beaumont bad already had an opportunity, in his
answer to the original bill, of making any statement
relative to that interest which he might have thought
proper. In fact, this bill corresponds in character
with a bill of revivor, to which Beaumont would as-
suredly not have been a party.
245 Precedents.
Precedents. 245
to a b ed aganst a de endant whose nte-est was m. uppe-
ne er represented n the orgna b. e-e thouo-h menta .
ebster was ersona a new de endant he repre-
sented the nterest be ore represented b T er and
eaumont had aread had an opportunt n hs
answer to the orgna b o makng an statement
reat e to that nterest whch he mrht ha e thou -ht
proper. n act ths b corresponds n character
wth a b o re or to whch eaumont woud as-
sured not ha e been a part .
. Petton or ea e to e a uppementa
n the ature o a o e ew. de
hap. .
n .
etween chard Mans ompanant
and
Thomas encher De endant.
To the ght onorabe the Master o the os.
The humbe petton o the abo e named de endant . Petton
Thomas encher or ea e to
e a uppe-
he weth menta n
That on or about c. the abo e-named companant a u o
chard Mans beng sesed n ee or otherwse we -
entted o or to a certan dweng-house and and greement b
other heredtaments stuate n the parsh o G. n the Pettoner to
r r- 1 1. .. purchase an
count ot ts b a memorandum n wrtng bearng estate.
date the 24th da o March 1 40 and made between the
sad chard Mans o the one part and our pettoner
o the other part and sgned b the sad chard
Mans and our pettoner contracted to se to our
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Origin Ifrom
Digitized b
Precedents.
Appearance
and answer of
petitioner.
Title disap-
provedof.
246
IV. Petition petitioner, and your petitioner by the same memo-
for Leaveto'
File a Supple- randum contracted to purchase, the said dwelling-
mental Bill in house, land, and other hereditaments, for the sum of
the Nature of
aBill of 1200, the purchase to be completed on the 24th day
Review. f J h . d 1
_--., __ 0 une t en next ensumg', on a goo tit e being
shewn.
That the said Richard Malins delivered to your
petitioner an abstract of his title to the said heredi-
taments, which wassubmitted to theperusal of Counsel
by your petitioner, and was disapproved of by the said
Counsel, and that your petitioner accordingly refused
to complete the said purchase.
Bill for specific That on or about &c, the said Richard Malins ex-
performance, hibi d hi ,. 1bill f comnlai . hi H bl
ibite IS orrgma 1 0 comp aint 111 t IS onora e
Court, against your petitioner as defendant thereto,
thereby stating to the effect hereinbefore stated, 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 Court, and that your
petitioner might be decreed to pay to the said Richard
Malins the said sum of 1200, with 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 inthe premises
as the nature of his case might require, and to your
Lordship should seemmeet.
That your petitioner, being duly served with pro-
cess, appeared and put inhisanswer to thesaid 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,
246
Precedents.
. Petton
or ea e to
e a uppe-
menta n
the ature o
a o
e ew.
Tte dsap-
pro ed o .
or spec c
per ormance.
ppearance
and answer o
pettoner.
pettoner and our pettoner b the same memo-
randum contracted to purchase the sad dweng-
house and and other heredtaments or the sum o
1200 the purchase to be competed on the 24th da
o une then ne t ensung on a good tte beng
shewn.
That the sad chard Mans de ered to our
pettoner an abstract o hs tte to the sad hered-
taments whch was submtted to the perusa o ounse
b our pettoner and was dsappro ed o b the sad
ounse and that our pettoner accordng re used
to compete the sad purchase.
That on or about c. the sad chard Mans e -
hbted hs orgna b o compant n ths onorabe
ourt aganst our pettoner as de endant thereto
thereb statng to the e ect herenbe ore stated and
Dra ng that the sad agreement contaned n the sad
memorandum o the 24t da o March 1 40 mght
be spec ca per ormed b and under the drecton
and decree o ths onorabe ourt and that our
pettoner mght be decreed to pa to the sad chard
Mans the sad sum o 1200 wdth nterest rom
the sad 24th da o une 1 40 the sad chard
Mans beng wng and thereb o erng to e ecute
to our pettoner a proper con e ance o the sad
heredtaments and that the sad chard Mans
mght ha e such urther or other ree n the premses
as the nature o hs case mght re ure and to our
That our pettoner beng du ser ed wth pro-
cess appeared and put n hs answer to the sad orgna
b and thereb dened that the sad chard Mans
had shewn or was abe to shew a good tte to the
sad premses and submtted that our pettoner was
not bound to per orm the sad contract.
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Original from
Digitized by
That such answer was replied to, and witnesses ex- IV. Petition
amined on both sides, and publication passed. ~i~eLae~v:p~~e_
That the said cause being at issue came on to bemental Bill in
h d b
s: L d 1 . & h L d the Nature of
ear erore your or sup on c. w en your or - a Bill of
ship was pleased to order and decree that it should beReview.
referred to the Master of this Court in rotation, to in- ~
quire and state to the Court, whether the saidRichard &c.
M 1
ld k d' I h . Decree.
a111S cou rna ea goo tit eto t epremIses 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 should beadvised.
That in pursuance of the said decree, the Master to Master's
whom the said cause was referred made his report report.
therein bearing date &c. which was afterwards duly
confirmed by an Order of this Court; and he thereby
found that the said Richard Malins couldmake agood
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 beheard 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 24th
day of March] 840 ought to be specifically performed
and carried into execution. And it was ordered that
it should be referred to the said Master to compute
intere t at the rate of four per cent. per annum on the
247 Precedents.
Precedents. 247
That such answer was reped to and wtnesses e - . Petton
araned on both sdes and pubcaton passed. a uppk-
That the sad cause beng at ssue came on to be menta n
heard be ore our ordshp on c. when our ord- o
shp was peased to order and decree that t shoud be e e -
re erred to the Master o ths ourt n rotaton to n- epcaton
ure and state to the ourt whether the sad chard c.
Decree.
Mans coud make a good tte to the premses com-
prsed n the sad agreement o the 24th da o March
1 40 and so when such good tte was rst shewn
and or the better dsco er o the matters a oresad
the partes were to produce be ore the sad Master
upon oath a deeds papers and wrtngs n ther
custod or power reatng thereto and were to be e -
amned upon nterrogatores as the sad Master shoud
drect and our ordshp reser ed the consderaton
o urther drectons and o the costs o the sut unt
a ter the sad Master shoud ha e made hs report
and a partes were to be at bert to app to the
ourt as the soud be ad sed.
That n pursuance o the sad decree the Master to Master s
whom the sad cause was re erred made hs report P -
theren bearng date c. whch was a terwards du
con rmed b an rder o ths ourt and he thereb
ound that the sad chard Mans coud make a good
tte to the sad premses and that such good tte was
rst shewn on the 12th da o pr 1 40.
That the sad cause came on to be heard or urther Decree on ur-
drectons and costs be ore our ordshp on c. when ther drectons.
our ordshp was peased to decare that the agree-
ment contaned n the sad memorandum o the 24t
da o March 1 40 ought to be spec ca per ormed
and carred nto e ecuton. nd t was ordered that
t shoud be re erred to the sad Master to compute
nterest at the rate o our per cent per annum on the
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p
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n In I
I I I b
Discovery of a
flaw in the
title.
Foundation of
the plaintiff's
title.
IV. Petition said sum of 1200 from the said 24th day of J une
for Leave to 8
File a Supple- I 40, and to add such interest to the said principal
mental Bill in sum. And it was referred to the said Master to tax
the Nature of h id R' h d M li I . f I id .
a Bill of t e Sal IC ar uaInS llS costs 0 t ne Sal SUIt,
Review. andto certify the amount thereof. And it wasordered
~ 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
~aster's ~ffice some proceeding's have been had in the said Master's
still pending.
Office, and the same are still pending and have not
yet been finally concluded.
That the said Richard Malins claimed to be seised
of, or entitled to, the said premises as heir at law of
his late uncle J ohn 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, fromany knowledge or information then
in his power, to controvert such claim.
That your petitioner hath since the making of the
said decree on furtber directions, discovered, as the
facts are, that on or about &c. the said J ohn Henry
Malins intermarried with Mary Ann Temple, spinster,
and that there was issue of such marriage three sons
and one daughter, namely, J ohn Temple Malins,
Henry lYlalins, George Malins, and Mary Malins, all
Precedents. 248
24 Precedents.
Petton sad sum o 1200 rom the sad 24th da o une
e a s u pe- nterest to the sad prncpa
menta n sum. nd t was re erred to the sad Master to ta
a o the sad chard Mans hs costs o the sad sut
e ew. and to cert the amount thereo . nd t was ordered
that our pettoner shoud pa to the sad chard
Mans the amount o prncpa and nterest to be so
cert ed as a oresad and aso the costs to be so ta ed
as a oresad upon the sad chard Mans e ecutng
and de erng to our pettoner at the e pense o
our pettoner a proper con e ance o the premses
comprsed n the sad agreement such con e ance to
be setted b the sad Master the partes shoud
d er about the same. nd a partes were to be at
bert to app to the ourt as the shoud be ad-
sed.
Proceedngs n That n pursuance o such ast mentoned order
Master s ce gome proceedno-s ha e been had n the sad Master s
st pendng. n . -
ce and the same are st pendmg and ha e not
et been na concuded.
oundaton o That the sad chard Mans camed to be sesed
the pant s entted to the sad premses as her at aw o
hs ate unce ohn enr Mans deceased and n
no other capact and he deduced hs tte be ore the
sad Master accordng and sats ed the sad Master
that he was such her at aw and our pettoner was
not then abe rom an knowedge or n ormaton then
n hs power to contro ert such cam.
Dsco er o a That our pettoner hath snce the makng o the
aw n the g decree on urther drectons dsco ered as the
acts are that on or about c. the sad ohn enr
Mans ntermarred wth Mar nn Tempe spnster
and that there was ssue o such marrage three sons
and one daughter name ohn Tempe Mans
enr Mans George Mans and Mar Mans a
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Original from
I gitized by
of whom are now alive and residing in the United IV, Petition
States of America; and that the said J ohn Temple fF~rl Leasveto1
1ea upp e-
Malins is the rightful heir at law of the said J ohn mental Bill in
H M 1
d 1 h 'd R' h d 1\,," n the Nature of
enry a ms; an t rat t e sal IC ar ina ms wasa Bill of
not nor is such heir at law. Review,
That the said report of the said Mastel', and the T "- . ,- - - I h d .
e ecree on
decree on further directions so founded thereon asfurther direc-
aforesaid, are consequently erroneous, and that your ~~::s~as erro-
petitioner is aggrieved by the said decree on further
directions.
That the said decree has not been signed and eu- Decree not
rolled, and your petitioner intends topresent apetition :~r~~e~~d
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 hemay 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 byhim as aforesaid as he would have
had incase 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.
249 Precedents.
Precedents. 249
o whom are now a e and resdng n the nted . Petton
tates o merca and that the sad ohn Tempe g g_
Mans s the rght u her at aw o the sad ohn menta n
enr Mans and that the sad chard Mans was o
not nor s such her at aw. e ew.
t
That the sad report o the sad Master and the r - decree on
decree on urther drectons so ounded thereon as urther drec-
/. 1 .1 1 .1 . tons was erro-
aoresad are conse uent erroneous and tat our neoug_
pettoner s aggre ed b the sad decree on urther
drectons.
That the sad decree has not been sgned and en- Decree not
roed and our pettoner ntends to present a petton enro ed
to our ordshp or the purpose o ha ng the sad
cause reheard or urther drectons and costs.
our pettoner there ore most humb pra s
our ordshp that he ma be at bert to e -
hbt a suppementa b n the nature o a b
o re ew n the sad cause to the ntent that
our pettoner ma ha e n the sad cause the
same bene t o the crcumstances so ate ds-
co ered b hm as a oresad as he woud ha e
had n case the same had been set orth b wa
o de ence n hs sad answer to the sad com-
panant s b n the sad cause.
nd our pettoner c.
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Ori inal from
DI gI tI zed by
THOMAS BENCHER.
Between RICHARD MALINS, Complainant.
and
THOMAS BENCH ER, 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 ~new
matter of consequence in the said cause; particularly
that J ohn Henry Malins deceased, the uncle of the
said complainant, of whomthe complainant claims to
be heir at law, left three sons and one daughter him
surviving, named respectively J ohn Temple Malins,
Henry Malins, George Malins, and Mary Malins; and
that such sonsand daughter arestill alive and residing
in the United States of America; and that the said
J ohn Temple Malins is the rightful heir at law of the
said J ohn Henry Malins; which new matter this de-
ponent did not know, and could not by reasonable
diligence have known, so asto make usethereof in his
defence, at the time of pronouncing the said decree.
Sworn, &c.
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.
Precedents.
250
260 Precedents.
. da t n upport o a Petton or ea e to
e a uppementa n the ature o a
o e ew. de hap. .
n hancer .
etween chard Mans ompanant.
and
. da t. Thomas encher the de endant maketh oath and
sath that snce the tme o pronouncng the decree n
ths cause he ths deponent hath dsco ered ew
matter o conse uence n the sad cause partcuar
that ohn enr Mans deceased the unce o the
sad companant o whom the companant cams to
be her at aw e t three sons and one daughter hm
sur ng named respect e ohn Tempe Mans
enr Mans George Mans and Mar Mans and
that such sons and daughter are st a e and resdng
n the nted tates o merca and that the sad
ohn Tempe Mans s the rght u her at aw o the
sad ohn enr Mans whch new matter ths de-
ponent dd not know and coud not b reasonabe
dgence ha e known so as to make use thereo n hs
de ence at the tme o pronouncng the sad decree.
worn ec.
Thomas encher.
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Original from
Diginzed by
Between RICHARDIVIALINS, Complainant.
and
THOMAS BENCHER,Defendant.
Whereas theabovenamed defendant Thomas Bencher VI. Order for
didon&c.prefer his petition unto the Right Honorable ~~~~eto File
the Master of the Rolls, setting forth That &c. [set --
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 011 the petitioner Thomas Bencher
depositing the sumof 50 with the registrar) he beat
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
bemay beadvised.
VI. Order for Leave to File a Supplemental Bill
in tlte Nature of a Bill of Review.-Vide
Chap. III.
IN CHANCERY.
251 Precedents.
Precedents. 251
. rder or ea e to e a uppementa
n the ature o a o e ew. de
hap. .
n hancer .
etween chard Mans ompanant.
and
hereas the abo e named de endant Thomas encher . rder or
dd on c. pre er s petton unto the ght onorabe
the Master o the os settng orth That :c. set /
orth the petton u whereupon a partes con-
cerned were ordered to attend s ordshp on the
matter o the sad petton and ounse or the pet-
toner and or the pant ths da attendng accord-
ng upon hearng o the sad petton the decree
dated c. the proceedngs n the cause the a da t
o c. read and what was aeged b the ounse or
the sad pettoner and or the pant s ordshp
doth order that on the pettoner Thomas encher
depostng the sum o 50 wth the regstrar he be at
bert to e a suppementa b n the nature o a
b o re ew touchng the se era matters n the sad
petton mentoned and or ree n the premses as
he ma be ad sed.
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rI In I n
I itized b
matters in this cause.
Decree is not
signed and
enrolled.
Petition to file That on &c. your petitioner presented his petition
~cl~~e~~ntal in this cause to your Lordship, stating as therein is
nature of abill stated, and praying for leaye to file a supplemental
of review. bill in the nature of a bill of review respecting the
versed.
'That the said decree has never been signed and en-
rolled.
erroneous.
Decree was
Proceedings in
the Master's
Office still
pending.
The humble petition of the above named defendant
Thomas Bencher,
Sheweth,
VII. Petition That by the decree onfurther directions made in this
~ cause on &c. your Lordship was pleased todeclare that
The decree on the agreement contained in the memorandum of the
f?rther direc- 24th day of March 1840 in the pleadings in this
tions. '
cause mentioned, ought to be specifically performed
&c. [as in the former petition.]
That in pursuance of the said last mentioned order
some proceedings have been had in the said Master's
Office, and the same are still pending, and have not
yet been finally concluded.
That the said decree on further directions was
erroneous, and your petitioner is aggrieved thereby,
and is entitled to have the same reviewed and re-
Between RICHARD NIALINS, Complainant.
and
.THOMAS BENCHER, Defendant.
To the Right Honorable the Master of the Rolls.
IN CHANCERY.
VII. Petition for ReheaTing a Cause on Supple-
'mental Matter.-Vide Chap. III.
Precedents.
252
252 Precedents.
. Petton or ehearng a ause on uppe-
menta Matter. de hap. .
n hancer .
et een chard Mans ompanant.
and
To the ght onorabe the Master o the os.
The humbe petton o the abo e named de endant
Thomas encher
heweth
. Petton That b the decree on urter drectons made n ths
or ehearng cause c. our ordshp was peased to decare that
The decree on the agreement contaned n the memorandum o the
s 24th da o March 1 40 n the peadngs n ths
cause mentoned ought to be spec ca per ormed
c. as n the ormer petton.
Proceedngs n That n : ursuance o the sad ast mentoned order
/ some proceedngs ha e been had n the sad Master s
ce st
pendng. ce and the same are st pendng and ha e not
et been na concuded.
Decree was That the sad decree on arther drectons was
erroneous. erroneous and our pettoner s aggre ed thereb
and s entted to ha e the same -e ewed and re-
ersed.
Decree s not That the sad decree has ne er been sgned and en-
sgned and roed
enroed. roeu.
Petton to e That on cc. our pettoner presented hs petton
suppementa g cause to our ordshp statn - as theren s
b n the p m
nature o a b stated and pra mg or ea e to e a suppementa
o re ew. nature o a b o re ew respectng the
matters n ths cause.
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Origin Ifrcm
C lgltlzed by
A . B'lC 1"
C. D. 5 ounse s signatures.
That by an order of this Court bearing date &c. VII. Petition
your Lordship was pleased to order that 011 your peti- ~
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 nat.ure 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 the bill.
file a upplem ental bill in the nature of a bill of re-
view touching the matters in this cause.
Your petitioner, therefcre, 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 caus e 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.
253 Precedents.
Precedents. 253
That b an order o ths ourt bearng date c . Petton
our ordshp was peased to order that on our pet- heanng .
toner depostng the sum o 50 wth the egstrar rder or ea e.
our pettoner shoud be at bert to e a suppe-
menta b n the nature o a b o re ew touchng
the se era matters n the sad petton mentoned and
or ree n the premses as our pettoner mght be
ad sed.
That our ordshp shoud thnk t to accede to ntenton to
the pra er o ths petton our pettoner ntends to
e a uppementa b n the nature o a b o re-
ew touchng the matters n ths cause.
our pettoner there ore most humb pra s
that our ordshp w be peased to order that
ths cause ma be reheard and that the sad
decree o :c. ma be re ewed and re ersed
and that our ordshp w be peased to order
that the sad cause ma come on at the same
tme as the suppementa cause so ntended to
be nsttuted b our pettoner as a oresad.
nd our pettoner c.
e humb conce e that ths cause s proper to be
reheard touchng the matter n the petton mentoned
our ordshp sha thnk t.
. . 1 .
T ounse s sgnatures.
. D.
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p
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n n I
I .nze b
Originall bill
by vendor for
specificper-
formance.
VIII. Supple- Humbly complaining sheweth unto your Lordship
mental Bill in
the Nature of your orator Thomas Bencher of &c. that on or about
aBill of Re- &c. Richard Malins, the defendant hereinafter named,
Vl .... e_ w_ . oJ 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, acertain 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 J une then
next ensuing, on a good title being shewn; And
further stating the deli very 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
VIII. Supplemental Bill in the Nature of a Bill of
Review.-Vide Chap. Ill.
IN CHANCERY.
Precedents. 254
254
Precedents.
. uppe-
menta n
the ature o
a o e-
rgna b
b endor or
spec c per-
ormance.
. uppementa n the ature o a o
e ew. de hap. .
n hancer .
umb companng- sheweth unto our ordshp
our orator Thomas encher o c. that on or about
c. chard Mans the de endant herena ter named
e hbted hs orgna b o compant n ths onor-
abe ourt aganst our orator as de endant thereto
thereb statng. among other thngs a memorandum n
wrtng bearng date the 24th da o March 1 40 and
made between the sad chard Mans o the one
part and our orator o the other part and sgned b
the sad chard Mans and our orator whereb the
sad chard Mans contracted to se to our orator
and our orator contracted to purchase a certan dwe-
ng-house wth and and other heredtaments stuate
n the parsh o G. n the count o ts and theren
partcuar descrbed or the sum o 1200 the pur-
chase to be competed on the 24th da o une then
ne t ensung on a good tte beng shewn nd
urther statng the de er b the sad chard
Mans to our orator o an abstract o hs tte to the
sad heredtaments and that he had thereb shewn a
good tte thereto and had re uent apped to our
orator and re uested hm to compete the sad con-
tract and to pa the sad sum o 1200 but that our
orator had re used to comp wth such appcatons
and re uests nd pra ng that the sad agreement
contaned n the sad memorandum o the 24th da o
March 1 40 mght be spec ca per ormed b and
under the drecton and decree o ths onorabe
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Original from
Digiti zed by
Court, andthat your orator might bedecreed to pay to VIII. Supple-
the said Richard Malins the said urnof 1200 with ~:niJ ';~~ ~~
interest fromthe said 24th day of J une 1840, the said a Bill of Re-
Richard Malins being willing, and thereby offering, to Vl._e_w_.-.,-_-,
execute toyour 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 his case might require, and to
your Lordship should seemmeet.
And your orator further sheweth, that your orator, Appearance
bei dId . h d d . and answer.
emg u y serve WIt process, appeare an 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 &c.
both sides, and publication passed.
And your orator further sheweth that the saidcause 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 report.
petition.]
And your orator further sheweth that the said cause Decree on fur-
came on to be heard for further directions and costs ther directions.
&c. [as in the petition.]
And your orator further sheweth that in pursuance Proceedings
of such last mentioned Order some proceedings have lO'nffiMaster's
c e o
been had in the said Master's Office, and the same are
still pending, and have not yet been finally concluded;
255 Precedents.
Precedents. 2d5
ourt and that our orator mght be decreed to pa to . uppe-
the sad chard Mans the sad sum o 200 wth :
the ature o
nterest rom the sad 24th da o une 1 40 the sad a o e-
chard Mans beng wng and thereb o erng to r
e ecute to our orator a proper con e ance o the sad
heredtaments nd that the sad chard Mans
mght ha e such urther or other ree n the pre-
mses as the nature o s case mght re ure and to
our ordshp shoud seem meet.
nd our orator urther sheweth that our orator ppearance
beng du ser ed wth process appeared and put n
hs answer to the sad orgna b and thereb dened
that the sad chard Mans had shewn or was abe
to shew a good tte to the sad premses and sub-
mtted that our orator was not bound to per orm the
sad contract.
nd our orator urther sheweth that such answer epcaton
was reped to and that wtnesses were e amned on
both sdes and pubcaton passed.
nd our orator urther sheweth that the sad cause Decree.
beng at ssue came on to be heard be ore the ght
onorabe the Master o the os on c. when hs
ordshp was peased to order and decree c. as n
the petton.
nd our orator urther sheweth that n pursuance Master s
o the sad decree the Master to whom c. as n the
petton.
nd our orator urther sheweth that the sad cause Decree on ur-
came on to be heard or urther drectons and costs ter drectons.
c. as n the petton.
nd our orator urther sheweth that n pursuance Proceedngs
o such ast mentoned rder some proceedngs ha e aster s
been had n the sad Master s ce and the same are
st pendng and ha e not et been na concuded
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p
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n In I
I rtize b
Preceden ts.
Petition of
rehearing.
Error in the
decree.
Supplemental
matter.
VIII. Supple-
mental Bill in
the Nature of
a Bill of Re-
view.
256
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
--.._...J 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 J ohn 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
making of the said decree on further directions dis-
covered, as the facts are, that on or about &c. the
said J ohn Henry Malins intermarried with Mary Ann
Temple, spinster; and that there was issue of such
marriage three sons and one daughter, namely, J ohn
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
J ohn Temple Malins is the rightful heir at law of the
said J ohn 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
256
Precedents.
. uppe-
menta n
the ature o
a o e-
uppementa
matter.
rror n the
decree.
Petton o
rehearng.
as b such b and other proceedngs n the sad
cause now remanng as o record n ths onorabe
ourt re erence beng had thereto w more u
appear.
nd our orator b ea e o ths onorabe ourt
rst had and obtaned or that purpose urther
sheweth b wa o suppement that the sad chard
Mans camed to be sesed o or entted to the sad
premses as her at aw o hs ate unce ohn enr
Mans deceased and n no other capact and he
deduced hs tte be ore the sad Master accordng
and sats ed the sad Master that he was such her at
aw. nd our orator was not then abe rom an
knowedge or n ormaton then n hs power to con-
tro ert such cam. ut our orator has snce the
makno: o the sad decree on urther drectons ds-
co ered as te acts are that on or about c. the
sad ohn enr Mans ntermarred wth Mar nn
Tempe spnster and that there was ssue o such
marrage three sons and one daughter name ohn
Tempe Mans enr Mans George Mans and
Mar Mans a o whom are now a e and resdng
n the nted tates o merca and that the sad
ohn Tempe Mans s the rght u her at aw o the
sad ohn enr Mans and that the sad chard
Mans was not nor s such her at aw.
nd our orator b such ea e as a oresad urther
sheweth b wa o suppement that the sad report
o the sad Master and the decree on urther drec-
tons so ounded thereon as a oresad are conse-
uent erroneous and our pettoner s aggre ed
thereb and that the sad decree has ne er been
sgned and enroed and that our orator has accord-
ng presented a petton to our ordshp pra ng
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Original from
01gI t I zed by
s
to have the said cause reheard before your Lordship VIII. Supple-
for further directions and costs which petition has mental Bill in
. ' the Nature of
been acceded to by your Lordship. a Bill of
And your orator, by such leave asaforesaid, further ~
sheweth, by way of supplement, that your orator isClaims a hear-
entitled, ashe isadvised, to have the said cause, when ing on the new
. matter also.
so reheard asaforesaid, heard also on the new matter
so discovered by your orator asaforesaid, in the same
manner asif such newmatter 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 swer.
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 the
several interrogatories hereinafter numbered and set
forth, asby the note hereunder written he isrequired
to answer; that isto say ;-
1. Whether &c.
And that the said cause may beheard on such new Prayer.
and supplemental matter asaforesaid, at the sametime
asit isreheard 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 seemmeet, and the nature of this
case, asit hereby appears, may require; May it please
&c. [subpoenaag'ainst Richard Malins.]
The defendant isrequired to answer all the inter-
rogatories.
257
Precedents.
Precedents. 257
to ha e the sad cause reheard be ore our ordshp . uppe-
or urter drectons and costs whch etton has enta n
the ature o
been acceded to b our ordshp. a o
nd our orator b such ea e as a oresad urter -
sheweth b wa o suppement tat our orator s cams a hear-
entted as he s ad sed to ha e the sad cause when g on the new
so reheard as a oresad heard aso on the new matter
so dsco ered b our orator as a oresad n the same
manner as such new matter had been put n ssue n
the sad orgna sut.
To the end there ore that the sad de endant ma as or an-
he can shew wh our orator shoud not ha e the s -
ree hereb pra ed and ma upon hs corpora
oath accordng to the best and utmost o hs know-
edge remembrance n ormaton and bee u
true drect and per ect answer make to such o te
se era nterrogatores herena ter numbered and set
orth as b the note hereunder wrtten he s re ured
to answer that s to sa
1. hether c.
nd that the sad cause ma be heard on such new Pra er.
and suppementa matter as a oresad at the same tme
as t s reheard on the sad orgna b and that our
orator ma ha e such urther or other ree as under
the crcumstances herenbe ore partcuar stated to
our ordshp sha seem meet and the nature o ths
case as t hereb appears ma re ure Ma t pease
cc. subpoena aganst chard Mans.
The de endant s re ured to answer a the nter-
rogatores.
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I I I
Itlze
IX. ~ill of Humbly complaining sheweth unto your Lordship
Revivor, M W 11 f & h b
"-.,----I your oratrix ary a er 0 c. t at on or a out &C.
Original bill your oratrix exhibited her original bill of complaint
for account.
in this Honorable Court against David Barnes the
younger and J ohn Barnes Waller, thereby stating
divers matters whereby it appeared that your oratrix
and the said J ohn 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 ill 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
IX. Bill of Revivor against the Representatives of a
Defendant to the Original Bill, who had died
after Appearance but 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.
25'8 Precedents.
25
Precedents.
. o
e or.
.
rgna b
or account.
. o e or aganst the epresentat es o a
De endant to the rgna who had ded
a ter ppearance hut be ore nswer. t
cas or an nswer to the rgna as
we as or an nswer to tse respectng
ssets. de hap. .
n hancer .
umb companng sheweth unto our ordshp
our oratr Mar aer o c. that on or about c.
our oratr e hbted her orgna b o compant
n ths onorabe ourt aganst Da d arnes the
ounger and ohn arnes aer thereb statng
d ers matters whereb t appeared that our oratr
and the sad ohn arnes aer were under and b
rtue o a certan ndenture e ecuted b Da d
arnes the eder deceased and dated :c. and under
and b rtue o hs ast w and testament dated :c.
whch was pro ed b the sad Da d arnes the
ounger n the Prerogat e ourt o anterbur en-
tted to the ree pra ed b the sad b and
pra ng that our oratr mght be decared to be
entted to ha e the co enant contaned n the sad
ndenture spec ca per ormed and that an ac-
count mght be taken b and under the drecton o
ths onorabe ourt o the persona estate whch the
sad testator was possessed o nterested n or en-
tted to at the tme o hs death and o er whch he
had a dsposng power and partcuar that the
amount o the argest egac g en b hs sad w
whether pecunar spec c or resduar mght be
ascertaned and that the persona estate o the sad
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Onqmal rom
U N I V E R S I T Y 0 F C A L I F O R N I I I .
01gI t I zed by
testator might be disposed of in a due course of ad- IX. Bill of
ministration; and in caseit should appear that it was \ R evivor. )
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 incaseit should appear tobe 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 saidwill 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 have such further relief
in the premises as the circumstances of her casemight
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 saIdAppearance of
D
. I B h d h id bill the deceased
aVIC arnes t e younger appeare to t esal iu; defendant,
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 J ames Peters, the
defendants hereinafter named, executrix and executor
of his saidwill.
And your oratrix further sheweth that the said de- His executors.
fendants Sarah Barnes and J ames Peters have both
proved the aid will of the aid David Barnes the
younger in the Prerogative Court of Canterbury, and
have thereby become, and now are, the legal personal
2
259 Precedents.
Precedents. 259
testator mg-t be dsposed o n a due course o ad- . o
mnstraton and n case t soud appear that t was e or.
most bene ca or our oratr to rece e her share
o the egac o 4000 be ueathed b the sad w o
the sad testator then that the same mght be pad to
her and n case t shoud appear to be most bene ca
or her to take the bene ts secured to her b the sad
ndenture then that the same mght be made good to
her out o the persona estate o the sad testator and
that a necessar drectons mght be g en or en-
abng our oratr to make her eecton between the
egac g en b the sad w and the bene ts pro ded
or her b the sad ndenture and that whate er she
shoud be utmate entted to mght be pad to her
and that our oratr mght a e such urther ree
n the premses as the crcumstances o her case mght
re ure and to our ordshp shoud seem meet as
n and b such orgna b now remanng as o re-
cord n ths onorabe ourt re erence beng had
thereto w more u appear.
nd our oratr urther sheweth that the sad ppearance o
Da d arnes the ounger appeared to the sad b de enda
but be ore he had answered and be ore an urther
proceedngs were had n the sad cause and on or
about the 25th da o pr now ast past the sad
Da d arnes the ounger ded and that he made s death.
hs w bearng date :c. and that he thereb ap-
ponted hs w e arah arnes and ames Peters the
de endants herena ter named e ecutr and e ecutor
o hs sad w.
nd our oratr urther sheweth that the sad de- s e ecutors
endants ara arnes and ames Peters ha e both
pro ed the sad w o the sad Da d arnes the
ounger n the Prerogat e ourt o anterbur and
ha e thereb become and now are the ega persona
s 2
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I
(a) In general a bill of revivor of the former defendant before an-
does not call for any answer. In swer, and al 0to the bill of revivor,
this particular case it is necessary on account of the question as to
to call for an answer both to the the admission of a sets.
original bill, on account of the death
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 defau!t 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.
Calls for an-
swer to both
bills.
IX. Bill of representatives of the said David Barnes the younger,
Revivor. d id B h I 1
, , and also of the sai Davi arnes tee del'; and t ley
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.
Theabatement. And your oratrix 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 hey 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, trne, direct, and perfect
answer make to such of the several interrogatories in
your oratrix's said original bill numbered and set
forth, asby the note thereunder written the said David
Barnes the younger was required to answer, and also
to such of the several interrogatories hereinafter num-
they are respectively required to answer; that is to
Precedents. 260
260
Precedents.
. o representat es o the sad Da d arnes the ounger
. and aso o the sad Da d arnes the eder and the
as or an-
swer to both
bs.
ha e possessed themse es o persona estate o the
sad Da d arnes the eder and Da d arnes the
ounger su cent to answer our oratr s demands
n ths sut.
The abatement. nd our orat urther sheweth that b the death
o the sad Da d arnes the ounger the sad sut
became abated as to hm but our oratr s ad sed
that the same ought to be re ed.
To the end there ore that the sad de endants ma
the can shew wh our oratr shoud not ha e
the ree hereb and b her sad orgna b a
pra ed and ma upon ther se era and respect e
corpora oaths accordng to the best and utmost o
ther se era and respect e knowedge remembrance
n ormaton and bee u true drect and per ect
answer make to such o the se era nterrogatores n
our oratr s sad orgna b numbered and set
orth as b the note thereunder wrtten the sad Da d
arnes the ounger was re ured to answer and aso
to such o the se era nterrogatores herena ter num-
the are respect e re ured to answer that s to
sa
1. hether c.
nd that the sad de endants ma the can shew
wh the sad sut and proceedngs shoud not be re-
ed aganst them and n de aut thereo that the
ma be re ed accordng and stand and be n the
same pght and condton as the were n at the tme
Pra er or re-
or.
a n genera a b o re or
does not ca or an answer. n
ths partcuar case t s necessar
to ca or an answer both to the
orgna b on account o the death
o the ormer de endant be ore an-
swer and aso to the b o re or
on account o the ueston as to
the admsson o assets.
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Original f m
Digitized by
(0) The bill of revivor does not ask for further relief.
of the aid abatement; and that the said defendants IX. Bill of
may either admit assets of the said David Barnes the ~
elder and David Barnes the younger, possessed by ~nd for admis-
h I i
. ., d ds I S10n of assets,
t em, su cient to answer your oratrix seman s In or for an
this suit, or otherwi e that an account may be taken account.
thereof in the usual manner; and that your oratrix
may have the same relief against them as she might
have had against the sai 1David Barnes the younger,
in case he had lived (b); May it please your Lordship Prayer for
. H 1\ 11" " subpoena,
to grant unto your oratrix er '.laJ esty smost gracious
writ of subpcena to revive and answer, issuing out of
and under the seal of this Honorable Court, to be
directed to the said Sarah Barnes anti J ames 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 oratr ix's
said original bill, and also the premises, and to shew
cause, if they 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.
261 Precedents.
Precedents. 261
o te sad abatement and that the sad de endants . o
ma ether admt assets o the sad Da d arnes the e or.
eder and Da d arnes the ounger possessed b nd or adms-
m- son o assets
them snthcent to answer our oratr s demands m
ths sut or otherwse that an account ma be taken account.
thereo n te usua manner and that our oratr
ma ha e the same ree aganst them as she mght
ha e had aganst the sad Da d arnes the ounger
n case he had ed h Ma t pease our ordshp Pra er or
to grant unto our oratr er Ma est s most gracous
wrt o subpoena to re e and answer ssung out o
and under the sea o ths onorabe ourt to be
drected to the sad arah arnes and ames Peters
thereb commandng them on a certan da and under
a certan pan theren to be mted persona to be
and appear be ore our ordshp n ths onorabe
ourt and then and there to answer our oratr s
sad orgna b and aso the premses and to shew
cause te can wh the sad sut and proceedngs
theren had shoud not stand and be re ed aganst
them and be n the same pght c. as abo e and
urther to stand to and abde such order and decree
as to our ordshp sha seem meet. nd our
oratr sha e er pra c.
The de endants are re ured to answer a the
abo e nterrogatores.
The b o re or does not ask or urther ree .
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more correct expression, under the
Tenth Order of 1833, would be,
" their time for shewing cause being
expired." But even this would not
be strictly true. Vide page 119.
(b) Lupton v. Burrill, Reg. Lib.
1832, B. fo1. 1307.
(a) It is submitted that this ex-
pression, although in constant use,
is erroneous; for a plaintiff may
obtain the order for revivor before
the time for pleading or demurring
is out, and, much more, before the
time for answering is out. The
J AMES LUPTON, &c., Plaintiffs.
ELIZABETH BURRILL, &c., Defendants.
x. Order Upon motion this day made unto this Court by Mr.
__or_R-,e,_vi_vo_r_,. W. of Counsel for the plaintiffs, it was alleged &c.
[the origina.l 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).
X. Orderfor Revivor.-Vide Chap. VII.
IN CHANCERY.
Precedents. 262
262 Precedents.
. rder or e or. de hap. .
n hancer .
.M uPT c. Pant s.
abeth urr c. De endants.
. rder pon moton ths ca made unto ths ourt b Mr.
or e or. ounse or the pant s t was aeged c.
the orgna b proceedngs deaths o de endants
and probates o ther ws b the abo e-named de-
endants. That the sad sut and proceedngs ha ng
become abated b the deaths o the sad de endants as
a oresad the pant s thereupon e hbted ther b o
re or n ths ourt aganst the sad de endants to
whch the ha e appeared but ther tme or answer-
ng beng e pred a t was there ore pra ed that the
sad sut and proceedngs mght stand re ed and be
n the same pght and condton as the same were n
at the tme o the sad abatement whch s ordered
accordng b .
a t s submtted that ths e - more correct e presson under the
presson athough n constant use Tenth rder o 1 33 woud he
s erroneous or a pant ma ther tme or sha ng cause beng
obtan the order or re or be ore e pred. ut e en ths woud not
the tme or peadng or demurrng be strct true. de page 119.
s out and much more be ore the upton . urr eg. b.
tme or answerng s out. The 1 32 . o. 1307.
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Original from
Oigiti zed by
Humbly complaining sheweth unto your Lordship x.I . ~riginal
F
. T I f & hat i b h Bill I I I the
your orator rancis y er 0 c. t at III or a out t eNature of a
month of March 1834, Edward Graves, one of the de- Bill of Revivor.
fendants hereinafter named, being' seised or entitled in A~t t:
greemen lor
fee simple of or to the freehold messuage and heredi- sale of an es-
I
. f d .b d d . tate.
taments ierema tel' escri e ,entere 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 messuage
&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
X I . Oriqinal Bill in the Nature of a Bill of Re-
vivO?'.-Vide Chap. VIII.
263 Precedents.
Precedents. 263
. rgna n the ature o a o e-
or. de hap. .
n hancer .
To the ght onorabe :c.
umb companng sheweth unto our ordshp . rgna
our orator rancs T er o c. that n or about the ture oTa
month o March 1 34 dward Gra es one o the de- o e or.
endants herena ter named beng sesed or entted n gement or
ee smpe o or to the reehod messuage and hered- sae o an es-
taments herena ter descrbed entered nto an agree-
ment wth George argra e ate o c. s . de-
ceased or the sae thereo to hm and that such
agreement was reduced nto wrtng b certan rtces
o greement bearng date the 10th da o March 1 34
and made between the sad dward Gra es o the one
part and the sad George argra e o the other part
and sgned b the sad dward Gra es and George
argra e whereb the sad dward Gra es n con-
sderaton o the sum o 1000 to be pad as theren
and herena ter mentoned agreed that he or hs hers
woud on or be ore the 1st da o Ma then ne t
to the sats acton o the sad George argra e or
hs hers and o hs or ther ounse make out a
good tte to the sad messuage and heredtaments
herena ter descrbed and b good and su cent con-
e ances n the aw con e and assure unto the sad
George argra e and hs hers or as he or the shoud
appont ree rom a ncumbrances a good and su -
cent estate o nhertance o and n a that messuao-e
c. n consderaton whereo the sad George ar-
gra e dd thereb co enant and agree wth the sad
dward Gra es that he the sad George argra e
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U N I V E R S I T Y O F C A . L I F O R N I A
ze
Bill by the
purchaser for
specific per-
formance.
XI. Original would payor cause to be paid to the said Edward
~~~~et~; a Graves the sum of 1000 &c. as in and by one part of
Bill of Revivor. the said agreement (now in the custody of your orator)
"-..,--J when produced will more fully appear.
Abstract de- And your orator further sheweth, that in pursuance
livered and of the said agreement, an abstract of the title to the
title approved
of. 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 snch 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 the said Edward Graves
to the said George Hargrave and his heirs, to be sub-
mitted to the said Edward Graves for his approval
Vendor re- and execution: but your orator sheweth that the said
fuses to com- Edward Graves would neither approve of nor obiect
plete the agree- ' t1
ment. to, the said draft, but utterly refused, without any
cause, to abide by the said agreement.
And your orator further sheweth that in conse-
-q uence of such refusal on the part of the. said Edward
Graves as aforesaid, and on or about the 6th day of
. J anuary 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 tlie 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 ail the title deeds and documents in the
Precedents. 264
264
Precedents.
. rgna
n the
ature o a
o e or.
.
bstract de-
ered and
tte appro ed
o .
endor re-
uses to com-
pete the agree-
ment.
b the
purchaser or
spec c per-
ormance.
woud pa or cause to be pad to the sad dward
Gra es the sum o 1000 c. as n and b one part o
the sad agreement now n the custod o our orator
when produced w more u appear.
nd our orator urther sheweth that n pursuance
o the sad agreement an abstract o the tte to the
sad messuage and heredtaments was short a ter
the date o the sad artces o agreement sent unto
the attorne concerned or the sad George argra e
or hs perusa and se era ob ectons ha ng been
rom tme to tme made to the sad tte a such ob-
ectons were ceared up to the sats acton o the sad
George argra e who thereupon caused the dra t o a
deed purportng to be a con e ance o the sad mes-
suage and heredtaments rom te sad dward Gra es
to the sad George argra e and hs hers to be sub-
mtted to the sad dward Gra es or hs appro a
and e ecuton : but our orator sheweth that the sad
dward Gra es woud nether appro e o nor ob ect
to the sad dra t but utter re used wthout an
cause to abde b the sad agreement.
nd our orator urther sheweth that n conse-
uence o such re usa on the part o the sad dward
Gra es as a oresad and on or about the 6th da o
anuar 1 35 the sad George argra e ed hs or-
gna b o compant n ths onorabe ourt aganst
the sad dward Gra es thereb statng the se era
matters and thngs herenbe ore stated and pra ng
that the sad dward Gra es mght be decreed spec-
ca to per orm the sad agreement so entered nto b
hm as a oresad and to e ecute the deed o con e ance
the dra t o whch had been so tendered to hm as a ore-
sad or some other con e ance o or to the same pur-
port or e ect and- to de er up to the sad George
argra e a the tte deeds and documents n the
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Origin If m
C lgltlzed by
I N T E R t~E T A R C H IV E
custody 01' power of the said Edward Graves which in XI. Original
. I I d 1 . 1 d Bill in the
anywI e re atec to or concerne t ie sale mes uage an Nature of a
hereditament, the said George Hargrave being there- Bill of Revivor.
UpOll ready and willing, and thereby oEering, to pay to "-.y---J
the said Edward Graves the said sum of 1000, and in
all respect 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 heweth that the aid Appearance
Ed
d
G d d
. I ' h and an wer of
war raves apl eare an put III lIS answer to t ethe vendor.
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 aid
bill, answer, and proceeding, 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
~ ) purchaser.
the 1 t day of February 1836, the said George Har-
grave departed thi life, leaving J ohn Hargrave the His heir.
other defendant hereinafter named, his only son and
heir him surviv ing', and having previously made and
published his"last will and testament in writing, bear-
ing date the 18thday of December 1835, and executed
and attested so as to pass freehold estates, and having Devise to this
thereby giyen and de, ised the said messuage and plaintiff.
hereditaments, so contracted: to be purchased by him
as aforesaid, to ) our orator, his heirs, and assigns, and
having appointed) our orator sole executor thereof; as Makes this
in and by the said will when produced will more fully plainttiff his
execu or.
appear.
And your orator further sheweth that the said "ill This plaintiff
was on &c. duly proved by our orator in the Prero- p~ollvesthe
WI.
265 Precedents.
Precedents. 265
custod or power o the sad dward Gra es whch n . rgna
11 1 1 1 1 n the
an wse reated to or concerned the sad messuage and - .
heredtaments the sad George argra e beng there- o e or .
upon read and wng and thereb o erng to pa to
the sad dward Gra es the sad sum o and n
a respects to per orm the sad agreement on hs part
and that the sad George argra e mght ha e such
urther or other ree n the premses as the nature
o hs case mght re ure and to our ordshp shoud
seem meet.
nd our orator urther sheweth that the sad ppearance
dward Gra es appeared and put n hs answer to the g n oT.
sad b and that the sad George argra e reped
thereto and that the cause beng at ssue wtnesses
were e amned and pubcaton passed as b the sad
b answer and proceedngs now remanng as o re-
cord n ths onorabe ourt re erence beng thereto
had w more u appear.
nd our orator urther sheweth that be ore an Death o the
urther proceedngs were had n the sad sut and on Pant the
the stda o ebruar 1 36 the sad George ar-
gra e departed ths e ea ng ohn argra e te s her.
other de endant herena ter named hs on son and
her hm sur ng and ha ng pre ous made and
pubshed hs ast w and testament n wrtng bear-
ng date the 1 th da o December 1 35 and e ecuted
and attested so as to pass reehod estates and ha ng De se to ths
thereb g en and de sed the sad messuage and P
heredtaments so contracted to be purchased b hm
as a oresad to our orator hs hers and assgns and
ha ng apponted our orator soe e ecutor thereo as Makes ths
n and b the sad w when produced w more u e t r
appear.
nd our orator urther sheweth- that the sad w Ths pant r
was on kc. du pro ed b our orator n the Prero-
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I II
n In I
Precedents.
That heir at
law is a neces-
sary party.
revive it.
Charge that
suit is abated,
and this plain-
tiff entitled to
266
XI. Original gative Court of Canterbury, whereby your orator
Bill in the
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
this plaintiff is devi d s: id h .
entitled to the eviseso ma eto your orator as aroresaiu, e IS en-
benefit of the titled to stand in the place of the said George Har-
agreement. . h l' 1 f h
grave WIt respect to t re sale agreement 0 t e 10th
clayof 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
sumof I000, which sumyour orator hereby offers to
pay.
And your orator charges that by the death of the
said George Hargrave the said suit and proceedings
became abated, but that your orator is, as he is ad-
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.
And your orator charges that the said J ohn 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.
if they can, shew why your orator should not havethe
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
266 Precedents.
. rgna gat e ourt o anterbur whereb our orator
ature o a became the ega persona representat e o the sad
o e or. George argra e as b the probate cop o such w
when produced w more u appear.
harge that nd our orator charges that b rtue o the
entued to t r e se made to our orator as a oresad he s en-
bene t o the tted to stand n the pace o the sad George ar-
agreemen gra e wth respect to the sad agreement o the 10th
da o March 1 34 and to ha e the same spec ca
per ormed and to ha e the sad messuage and he-
redtaments con e ed b the sad dward Gra es to
our orator and hs hers upon pa ment o the sad
sum o 1000 whch sum our orator hereb o ers to
pa .
harge that nd our orator charges that b the death o the
sut s abated g Georo e ar ra e the sad sut and proceedngs
and ths pan-
t entted to became abated but that our orator s as he s ad-
re e t. sed entted to ha e the same re ed aganst the
sad dward Gra es and to ha e the same ree
aganst the sad dward Gra es as the sad George
argra e woud be entted to he were st ng.
That her at nd our orator charges that the sad ohn ar-
gra e as her at aw o the sad George argra e
sometmes though wthout an ground uestons the
adt o the sad de se to our orator and s there-
ore as our orator s ad sed a necessar part to
ths sut.
the can shew wh our orator shoud not ha e the
ree hereb pra ed and ma upon ther se era and
respect e corpora oaths accordng to the best and
utmost o ther se era and respect e knowedge
remembrance n ormaton and bee u true drect
and per ect answer make to such o the se era nter-
rogatores herena ter numbered and set orth as b
aw s a neces-
sar part .
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Original from
01gitized by
the note hereunder written they are respectively re- XI. Original
q
uired to answer " that is to say,- Bill in the
Nature of a
1. Whether &c. Bill of Revivor.
And that it may be declared that your orator, as p~
rayer.
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
that your orator may have such further &c. [Further
relief. Subpoena against Edward Graves and J ohn
Hargrave.]
The defendant Edward Graves is required to an-
swer &c.
The defendant J ohn Hargrave is required to an-
swer &c.
267 Precedents.
Precedents. 267
the note hereunder wrtten the are respect e re- . rgna
ured to answer that s to sa
1. hether c. o e or.
nd that t ma be decared that our orator as p
such de see o the sad George argra e as a oresad
s entted to re e the sad sut and proceedngs so
become abated as a oresad and to ha e the bene t
thereo and that the sad sut and proceedngs ma
be decreed to stand and be re ed accordng and
to be n the same pght and condton as the were n
at the tme o the sad abatement and that our
orator ma ha e the same ree aganst the sad
de endant dward Gra es as the sad George ar-
gra e woud be entted to he were st ng
and necessar or that purpose that the sad w
o the sad George argra e ma be estabshed and
tat our orator ma ha e such urther c. urther
ree . ubpoena aganst dward Gra es and ohn
argra e.
The de endant dward Gra es s re ured to an-
swer c.
The de endant ohn argra e s re ured to an-
swer c.
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Appearance,
answer, &c.
XII. Supple. Humbly complaining sheweth unto your Lordship
mental Bill in your orator Philip Duberly of &c. that on 01' about
the Nature of
a.Bill of Re. &c. your orator exhibited his original bill of complaint
Vlvor. __.; in this Honorable Court against Mark Hepburn Esq.
Original bill by as defendant thereto, thereby stating (among' other
purc.haser for things) certain Articles of Agreement bearing' date
specific per. e
forrnance, &c. and signed by the said Mark Hepburn and your
orator, whereby the said Mark Hepburn agreed to
sell to your orator the fee simplc 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
agreement on your orator's part; and that your orator
mises as the circumstances of the case might require,
and to your Lordship should seemmeet.
And your orator further sheweth that the said Mark
IN CHA1\CERY.
X I I . Supplemental Bill in the ]'.,1ature of a Bill of
Revivor.-Vide Chap. VIII.
Precedents. 268
26 Precedents.
. uppementa n the ature o a o
e or. de hap .
n hancer .
To the ght onora e kc.
. uppe- umb companng sheweth unto our ordshp
menta orator Php Duber o c. that on or about
the ature o - ......
a o e- kc. our orator e hbted hs orgna b o compant
n ths onorabe ourt aganst Mark epburn s .
rgna b b as de endant thereto thereb statng among other
purchaser or o-s certan rtces o o-reement bearng date
spec c per. o- att
ormance. c. and sgned b the sad Mark epburn and our
orator whereb the sad Mark epburn agreed to
se to our orator the ee smpe and nhertance o a
certan messuage stuate at c. wth the heredtaments
appertanng thereto caed ak Mount or the sum
o 2000 and urther statng that the tte to the sad
messuage and heredtaments was submtted to and
appro ed o b our orator and urther statng that
the sad Mark epburn a terwards re used to carr
the sad agreement nto e ecuton and pra ng that
the sad Mark epburn mght be decreed spec ca
to per orm the sad agreement so entered nto b hm
as a oresad and to con e the sad messuage and
heredtaments to our orator or as he shoud drect
our orator beng read and wng and thereb
o erng to pa to the sad Mark epburn the sad
sum o 2000 and n a respects to per orm the sad
ao-reement on our orator s part and that our orator
mght ha e such urther or other ree n the pre-
mses as the crcumstances o the case mght re ure
and to our ordshp shoud seem meet.
ppearance nd our orator urther sheweth that the sad Mark
answer c.
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Oriqinal from
01gI t I zed by
Hepburn, being duly served with proce s, appeared to XII. Supple-
the aid bill, and put in his ans wer thereto; which ~~n~!!;~l ~~
answer was replied to; and the cause being at issue, a,Bill of Re-
witnesses were examined, and publication passed; a v~
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 vdeo??r afht~r
evising IS
the said cause, the said Mark Hepburn departed this property to
I
'' b & I ' 0 1 d H b f trustees, whom
ire on or a out c. eax mg r an 0 ep urn, one 0 heappoints
the defendants hereinafter named, his eldest son and executors,
heir at law, him surviving; and hax ing previously
made and published his last will and testament in
writing, dated &c. and executed and attested as by
law was then required for passing real estate, whereby
he devised and bequeathed all his real and personal
estate whatsoever and wheresoever unto J ames How-
son and Richard Hewitt, the other defendants herein-
after named, their heirs, executors, administrators,
and assigns, respectively, upon certain trusts therein
mentioned; and he thereby declared that the receipts
of the said J ames 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 J ames Howson and Richard
He\1 itt 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 J ames Howson and Richard will, &c.
Hewitt have duly proved the said will in the Preroga-
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
269 Precedents.
Precedents. 269
epburn beng du ser ed wth process appeared to . uppe-
the sad b and put n hs answer thereto whch r
te ature o
answer was reped to and the cause beng at ssue a o e-
wtnesses were e amned and pubcaton passed as T
b the sad b answer and proceedngs now reman-
ng as o record n ths onorabe ourt re erence
beng had thereto w more u appear.
nd our orator urther sheweth b wa o suppe- Death o the
ment that be ore an urther proceedngs were had n
o de sng hs
the sad cause the sad Mark epburn departed ths propert to
e on or about c. ea ng rando epburn one o e apponTs
the de endants herena ter named hs edest son and e ecutors.
her at aw hm sur ng and ha ng pre ous
made and pubsed hs ast w and testament n
wrtng dated kc. and e ecuted and attested as b
aw was then re ured or passng rea estate hereb
he de sed and be ueathed a hs rea and persona
estate whatsoe er and wheresoe er unto ames ow-
son and chard ewtt the other de endants heren-
a ter named ther hers e ecutors admnstrators
and assgns respect e upon certan trusts theren
mentoned and e thereb decared that the recepts
o the sad ames owson and chard ewtt shoud
be good and ad dscharges or a mones whch
mght come to them b rtue o that hs w and
he apponted the sad ames owson and chard
ewtt e ecutors o hs sad w as b such w or
the probate cop thereo when produced w u
appear.
nd our orator urther sheweth b wa o suppe- Probate o the
ment that the sad ames owson and chard
ewtt ha e du pro ed the sad w n the Prero a-
t e ourt o anterbur and ha e thereb become
the ega persona representat es o the sad testator
and that b such de se as a oresad the ega estate
n the heredtaments so contracted to be sod to our
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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 J ames Howson and Richard Hewitt, as
devisees and personal representatives of the said Mark
Hepburn, and also against the said Orlando Hepburn
Prayer.
swer.
Calls for an.
XII. Supple-
mental Bill in
the Nature of
aBill of Re-
orator as aforesaid, has become vested in them,
although the said Orlando Hepburn, as such heir at
law as aforesaid, sometimes falsely pretends the con-
vivor.
_-.,,---' trary, and insists that the said devise is void.
Charges the And your orator charges that, by the death of the
abatement and said Mark Hepburn the said suit and proceedings
right to revive. ' .
have become 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 J ames 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
J ames Howson, Richard Hewitt, and Orlando Hep-
burn, as he might have had against the said Mark
Hepburn, if he were living.
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
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.
Precedents. 270
270 Precedents.
. uppe- orator as a oresad has become ested n tera
thr tu o athough the sad rando epburn as such her at
a o e- aw as a oresad sometmes ase pretends the con-
trar and nssts that the sad de se s od.
harges the nd our orator charges that b the death o the
abatement and g d Mark epburn the sad sut and proceedngs
rght to re e. gcome abated and that our orator s entted
to ha e the same re ed and put n the same pght
and condton as we aganst the sad rando ep-
burn as aganst the sad ames owson and chard
ewtt as the were n at the tme o the sad abate-
ment and to ha e the same bene t aganst the sad
ames owson chard ewtt and rando ep-
burn as he mght ha e had aganst the sad Mark
epburn he were ng.
as or an. To the end there ore that the sad de endants ma
swer. can shew wh our orator shoud not ha e
the ree hereb pra ed and ma upon ther se era
and respect e corpora oaths accordng to the best
and utmost o ther se era and respect e knowedge
remembrance n ormaton and bee u true
drect and per ect answer make to such o the se era
nterrogatores herena ter numbered and set orth as
b the note hereunder wrtten the are respect e
re ured to answer : that s to sa
1. hether c.
Pra er. nd that t ma be decared that our orator s
entted to re e the sad sut and proceedngs whch
ha e so become abated as a oresad and that the
same ma be decreed to be re ed accordng and
to stand n the same pght and condton as the
stood n pre ous to the sad abatement and that
our orator ma ha e the same ree aganst the sad
de endants ames owson and chard ewtt as
de sees and persona representat es o the sad Mark
epburn and aso aganst the sad rando epburn
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Original from
01 rtized by
XIII. Decreefor Revivor.-Vide Chap. VIII.
IN CHAN CERY.
MIN SHULLand others, Plaintiffs.
LORDMOHUN and others, Defendants.
This cause coming this present day to be heard and XIII. Decree
debated before the Right Honorable the Lord Keeper ~
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 subpcena 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
as heir at law of the said Mark Hepburn, in case he XII. Supple-
h 11 h
. . h . mental Bill in
S a appear to ave any interest III t e matters In the N ature of
question, as your orator might have had against the a.Bill of Re-
said Mark Hepburn if he were still I iving; and that ~
&c. [Further relief. Subpcena against J ames How-
son, Richard Hewitt, and Orlando Hepburn.]
The defendants J ames Howson and Richard Hewitt
are required to answer &c.
The defendant Orlando Hepburn is required to an-
wer &c.
271 Precedents.
Precedents. 271
as her at aw o the sad Mark epburn n case he . uppe-
sha appear to ha e an nterest n the matters n g ature o
ueston as our orator mght ha e had aganst the a o e-
sad Mark epburn he were st ng and that
ec. urther ree . ubpoena aganst ames ow-
son chard ewtt and rando epburn.
The de endants ames owson and chard ewtt
are re ured to ans er c.
The de endant rando epburn s re ured to an-
swer c.
. Decree or e or. de hap. .
n hancer .
M and others. Pant s.
ord Mohun and others. De endants.
Ths cause comng ths present da to be heard and . Decree
debated be ore the ght onorabe the ord eeper / e or.
o the Great ea o Great rtan n the presence o
the ounse earned or a the partes e cept the
de endant the ord Mohun none appearng or hm
abet he was du ser ed wth subpoena to hear udg-
ment as b a da t now read appears the substance
o the pant s b appeared to be :c. mentons the
orgna peadngs the abatement and a suppementa
b n the nature o a b o re or. hereupon
and upon debate o the matter and hearng the
answer o the de endant the ord Mohun read and
what coud be aeged b the ounse or a the other
partes. s ordshp decared that the de endant the
ord Mohun ought to be bound b the ormer decree
and proceedngs as de see o the sad estate as much
as he had taken the same b descent and doth
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(a) Minshull v, Mohun, Reg. Lib. 1710, B. fol. 454.
XIV. Original Informing sheweth unto your Lordship Sir A. B.
!~!.;ra:~l~~~/~ Knt. Her Majesty's Attorney General, at and by the
Supplemental relation of William Buller of &c. Esq. that William
Information. I f & E dId d d h'
'--.. __-J Stacey ate 0 c. sq. u y ma e an execute IS
Will of Wm. last will and testament bearing date the 12th day of
Stacey. May 1838, and thereby, after bequeathing several
Residuary per- legacies, gave and bequeathed all the residue of his
sonal 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
niece's chil- I
dren. Stacey, who shou d beliving at his the said testator's
death, equally to be divided between them, share and
XIV. Original Information in the Nature of a Sup-
plemental Information against the Successor
of a Rector Defendant.-Vide Chap. X.
XIII. Decree therefore think fit, and so order and decree, that the
~ said 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 t.hat purpose, shall at the
return thereof shew unto this Court good cause to the
contrary. But, before be is to be admitted to shew
cause, he is to pay unto the plaintiffs costs for this
dais default to be taxed by the said Master (a).
Precedents. 272
272 Precedents.
. Decree there ore thnk t and so order and decree that the
or e or. ormer decree and proceedngs do stand re ed
and be carred on and e ecuted aganst the ord
Mohun and that the sad partton and aotment c.
here oows the decree upon the merts. nd ths
decree s to be bndng to the ord Mohun uness the
sad de endant the ord Mohun beng ser ed wth
process o subpoena or that purpose sha at the
return thereo shew unto ths ourt good cause to the
contrar . ut be ore he s to be admtted to shew
cause he s to pa unto the pant s costs or ths
da s de aut to be ta ed b the sad Master a .
. rgna n ormaton n the ature o a u -
ementa n ormaton aganst the uccessor
o a ector De endant. de hap. .
n h er .
. rgna n ormng sheweth unto our ordshp r . .
n ormaton n . Ma est s ttorne Genera at and b the
the ature o a
uppementa reaton o am Duer o c. s . that am
n ormaton. g _ e ecuted hs
o m. ast w and testament bearng date the 12th da o
tace . M 1 3 and thereb a ter be ueathng se era
esduar per- egaces ga e and be ueathed a the resdue o hs
sona estate to persona estate whatsoe er unto hs e ecutors there-
e ecutors on
trust. na ter named upon trust as to one e ua thrd part
ne thrd to thereo or a the chdren o hs nece arone
drer tace . who shoud be ng at hs the sad testator s
death e ua to be d ded between them share and
a Mnshu . Mohun eg. b. 1710 . o. 454.
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Original from
Diginzed by
share alike; and as to one other equal third part XIV. Original
thereof, upon tru t that hi said executors hould tlhnfoNrmtationfin
e a ure 0 a
convert the same into money and invest the clear Supplemental
d
h f i 1 h f C I'd t d h Information.
procee stereo III t re purc ase 0 onso I a e t ree ~
per cent. annuities in their names, and should pay the One third to
divid d . , 1 f h o h rector of
IVI en arismg t rere rom unto t e rector lor t eparish.
time being of the parish of Ames in the county of M,
for the absolute use and benefit of such rector in
auzrnentation of his stipend; and as to the remaining Remaining
h
';::'d f h' id j-esid 1 third to the
t II' part 0 IS sal rest uary persona estate, upon poor.
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 Holwell and Marmaduke Stacey, two of the
defendants hereto, his executors, and gave them the
first vear'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 Probate.
William Stacey departed this life on or about the 1st
day of December 1838, without having revoked or in
anywise al tered his said will; and such will was in
the month of J anuary 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 afore aid further beweth that at the time c~ildrenofthe
, lli~e~d
of the death of the said teotater the said Caroline rector of the
Stacey had two children living, and no more, that is parish.
to say, Henry Stacey, and Charlotte Stacey; and that
T
273 Precedents.
Precedents. 273
share ake and as to one oter e ua thrd part . rgna
thereo upon trust that hs sad e ecutors shoud n ormaton n
. . the ature o a
con ert the same nto mone and n est the cear uppementa
proceeds thereo n the purchase o onsodated three aton.
per cent annutes n ther names and shoud pa the ne thrd to
d dends arsng there rom unto the rector or the parsh
tme beng o the parsh o mes n the count o M.
or the absoute use and bene t o such rector n
augmentaton o hs stpend and as to the remanno emanng
thrd part o hs sad resduar persona estate upon poo /
trust that hs sad e ecutors shoud con ert the same
nto mone and n est the cear proceeds thereo n
the purchase o educed three per cent annutes n
ther names and app the d dends arsng there rom
n the ree o poor and deca ed tradesmen n the
sad parsh o mes and the sad testator apponted
Thomas o we and Marmaduke tace two o the
de endants hereto hs e ecutors and ga e them the
rst ear s ncome o hs estate or ther own use as
b the probate thereo w appear.
nd er Ma est s ttorne Genera at and b Death and
the reaton a oresad urther sheweth that the sad -
am tace departed ths e on or about the 1st
da o December 1 3 wthout ha ng re oked or n
an wse atered hs sad w and such w was n
the month o anuar 1 39 du pro ed n the Pre-
rogat e ourt o anterbur b the sad Thomas
owe and Marmaduke tace b means whereo
the became and now are the ega persona repre-
sentat es o the sad testator.
nd er Ma est s ttorne Genera at and b the ames o the
reaton a oresad urther shewet that at the tme
o the death o the sad testator the sad arone rector the
tace had two chdren ng and no more that s P
to sa enr tace and harotte tace and that
T
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Original rn
01gI t I zed by
day of J uly 1839 the said Attorney General, at the
relation of the said Wil liam Buller, filed his original
information in this Honorable Court against the said
Thomas Holwell, Marmaduke Stacey, Henry Stacey,
Charlotte Stacey, and J ames 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 t.hat the said cause was
heard upon information and answer before His Lord-
ship the Master of the Rolls on the &c. when His
Lord hip was pleased to refer it to the Master to in-
quire and state to the Court whether the said Caroline
Reference to
Master.
Appearance
and answers.
Original in-
formation.
XIV. Original at the same period the Rev. J ames Scott was the rector
Information in f' the sai d . h f A
the Nature of a 0 t re sal parIs 0 meso
Supplem~ntal And Her Majesty's Attorney General, at and by the
Information. I' e id f h h h h h 7 1
'-.,.---Jre ation atoresaiu , urt er s ewet , t at on t e t 1
Precedents. 274
274
Precedents.
. rgna
n ormaton n
the ature o a
uppementa
n ormaton.
rgna n-
ormaton.
ppearance
and answers.
e erence to
Master.
at the same perod the e . ames cott was the rector
o the sad parsh o mes.
nd er Ma est s ttorne Genera at and b the
reaton a oresad urther sheweth that on the 7th
da o u 1 39 the sad ttorne Genera at the
reaton o the sad am uer ed hs orgna
n ormaton n ths onorabe ourt aganst the sad
Thomas owe Marraaduke tace enr tace
harotte tace and ames cott as de endants
thereto statng to the e ect herenbe ore stated and
pra ng that the trusts o the sad w o the sad
am tace mght be carred nto e ect under the
drecton o ths ourt and that the usua accounts o
the persona estate o the sad testator and o hs
debts unera and testamentar e penses and egaces
mght be taken and the cear resdue o hs persona
estate ascertaned and dstrbuted and that n part-
cuar one e ua thrd part o such cear resdue mght
be ad out n the purchase o educed three per cent
annutes and secured n ths ourt or the chartabe
purposes n the sad w n that beha mentoned
and that t mght be re erred to one o the Masters o
ths ourt to appro e o a scheme or the sad hart
and that such urther or other ree mght be had n
the premses as the nature o the case mght re ure
and to our ordshp shoud seem meet.
reaton a oresad urther sheweth that the sad se e-
ra de endants to the sad orgna n ormaton beng
du ser ed wth process appeared and put n ther
se era answers thereto and that the sad cause was
heard upon n ormaton and answer be ore s ord-
shp the Master o the os on the c. when s
ordshp was peased to re er t to the Master to n-
ure and state to the ourt whether the sad arone
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Original from
Digitized by
Stacey had any anI what child or children living at XIV. Original
f h d
1.' d ' Information in
the death 0 t e sai testator or uorn I n ue time the Nature of a
afterwards; and if the said Ma ter should findthat the upplemental
idC I' S h d hild h'ld 1" Information,
sal aro me tacey a any c I or c I ren Ivmg '-v----I
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 HoI well 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 bepublished
in the London Gazette, &c, [as to the creditors of the
testator.] And it was ordered that the said testator's
per onal 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, asconsisted 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 deed,
paper, and writings in their custody or power relating
thereto, and were to be examined upon interrogate-
ries a~the aid Ma ter should direct; and His Lord-
T2
275 Precedents,
Precedents. 275
tace had an and what chd or chdren ng at rgna
the death o the sad testator or orn n due tme tbe ature o a
a terwards and the sad Master shoud nd that the uppementa
sad arone tace had an chd or chdren ng -.
at the death o the sad testator or born n due tme
a terwards and that such chd or a such chdren
was or were a part or partes to the sad sut then he
was to proceed to take an account o the persona
estate o the sad testator not spec ca be ueathed
come to the hands o the sad Thomas oh e and
Marmaduke tace or ether o them or an person
or persons b ther or ether o ther order or or
ther or ether o ther use and t was ordered that
the sad Master shoud take an account o the debts
unera e penses and egaces o the sad testator and
compute nterest on such o hs debts as carred n-
terest a ter the rate the same respect e carred n-
terest and upon hs egaces a ter the rate o our per
cent per annum rom the end o one ear a ter the
sad testator s death and t was ordered that the sad
Master shoud cause an ad ertsement to be pubshed
n the ondon Ga ette :c. as to the credtors o the
testator. nd t was ordered that the sad testator s
persona estate shoud be apped n pa ment o hs
debts and unera e penses n a due course o admns-
traton and then n pa ment o hs egaces. nd the
sad Master was to ascertan and cert the amount o
the cear resdue o the sad testator s persona estate
dstngushng such part an as conssted o chattes
rea and or better takng o the sad account and
dsco er o the matters a oresad the partes were to
produce be ore the sad Master upon oath a deeds
papers and wrtngs n ther custod or power reatng
thereto and were to be e amned upon nterrogato-
res as the sad Master shoud drect and s ord-
t2
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Original from
Digitized by
successor.
Death of
the Rector
and appoint-
ment of a
XIV. Original ship reserved the consideration of all further directions,
Information in d f h f 1. 'd' '1 f h id
the Nature of a an 0 t ecosts 0 the sal SUIt, unti a ter t e sal
Supplemental Master should have made his report and any of the
Information.. b lib 1' hi C
"-.--J parties were to e at 1 erty to app y to t IS ourt as
they should be advised.
Master has not And Her Majesty's Attorney General, at and by the
yet made his
report. relation aforesaid, further sheweth, that in pursuance
of the said decree divers proceedings have been had
before the Master towhomthe 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 J ames 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
thereof.
Charge of And Her Majesty's Attorney General, at and by the
right to benefit.
of former pro- relation aforesaid, charges that by such the death of
ceedings. the said J ames 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 saidoriginal 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. 276
276
Precedents.
. rgna
n ormaton n
the ature o a
uppementa
n ormaton.
Master has not
et made hs
report.
Death o
the ector
and appont-
ment o a
successor.
harge o
rght to bene t
o ormer pro-
ceedngs.
shp reser ed the consderaton o a urther drectons
and o the costs o the sad sut unt a ter the sad
Master shoud ha e made hs report and an o the
partes were to be at bert to app to ths ourt as
the shoud be ad sed.
reaton a oresad urther seweth that n pursuance
o the sad decree d ers proceedngs ha e been had
be ore the Master to whom the sad cause was re erred
but he has as et made no report thereon as b the
sad orgna n ormaton and other proceedngs now
remanng as o record n ths onorabe ourt re-
erence beng had thereto w more u appear.
reaton a oresad urther sheweth that pendng the
sad proceedngs be ore the Master and wthn one
ear a ter the death o the sad testator that s to sa
on or about c. the sad ames cott departed ths
e and short a terwards that s to sa on or about
c. the e . bene er knson one o the de-
endants herena ter named was du presented to
the sad ector and nsttuted and nducted nto
the same and he s now the true and aw u rector
tereo .
reaton a oresad charges that b such the death o
the sad ames cott as a oresad the sad orgna
sut became de ect e and ncapabe o beng con-
tnued but that he the sad ttorne Genera s ent-
ted to supp such de ect b ths hs present n orma-
ton and thereb to ha e the same ree as he woud
ha e had rom hs sad orgna n ormaton the sad
bene er knson had at the tme o the ng
thereo been the rector o mes a oresad and had
been made a part to such orgna n ormaton and
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Original from
Di gitized by
that for that purpo e this his information ought to be XIV. Original
taken as supplemental to such former information. :~!o~~~;~~~:
And Her Majesty's Attorney Genera], at and by Supplem~ntal
I I
f, id f h h 1 1 'd Information,
tle re ation a orcsai , urt er c arges, t rat t re sal ~
Thomas Holwell and Marmaduke Stacey dispute the Executors are
title of the said Ebenezer Wilkinson and are there- ~i:~~ssary par-
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 swer.
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 might have had if at the time of the filing 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 HoI well, and Marma
duke Stacey.]
The defendant, Ebenezer Wilkinson is required.,
&c.
The defendants Thomas Holwell and Marmaduke
Stacey are required, &c.
277 Precedents.
Precedents. 277
that or tat purpose ths hs n ormaton ought to be . rgna
taken as suppementa to such ormer n ormaton. the atu reo
nd er a est s ttorne Genera at and b uppementa
the reaton a oresad urther charges that the sad .
Thomas owe and Marmaduke tace dspute the ecutors are
1 1 1 T TT7--1 1 .1 necessar par-
tte 01 the sad hbene er k.nson and are there- tes.
ore necessar partes to ths sut.
To the end there ore that the sad de endants ma as or an-
the can shew wh the sad ttorne Genera
shoud not ha e the ree hereb pra ed and ma
upon ther se era and respect e corpora oaths ac-
cordng to the best and utmost o ther se era and
respect e knowedge remembrance n ormaton and
bee u true drect and per ect answer make to such
o the se era nterrogatores herena ter numbered
and set orth as b the note hereunder wrtten the
are respect e re ured to answer that s to sa
1. hether c.
nd that er Ma est s ttorne Genera ma ha e Pra er.
the same ree rom hs sad orgna n ormaton as
he mo-ht ha e had at the tme o the n - thereo
the sad bene er knson had been rector o the
sad parsh o mes and had been made a part de-
endant to such n ormaton and that or that pur-
pose ths n ormaton ma be taken as suppementa
to such ormer n ormaton and that such urther or
other ree ma be had n the premses as the crcum-
stances o the case ma re ure and to our ordshp
sha seem meet ma t pease c. subpoena aganst
bene er knson Thomas owe and Marma-
duke tace .
The de endant bene er knson s re ured.
c.
The de endants Thomas owe and Marmaduke
tace are re ured c.
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Oriqinal rom
, DI itized b
(a) This was an order made on inquiries, which had been directed
motion for continuing preliminary in the original cause.
XV. Decree on This cause coming on this present day to be heard
~l~~~~:l and debated before the, Right Honorable the Mastel'
Nature of a of the Rolls, in the presence of Counsel learned on
Supplemental b h 'd d hId' b . d
Bill. ot S1 es ; an t e p ea mgs emg opene , upon
'-v--' debate of the matter, and hearing what was alleged by
the Counsel on both sides; His Lordsh ip 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 further directions, and
of the costs of this suit, until after the said Master
hall have made his report pursuant to the said Order:
xV. Decree on an Original Bill in the Nature of a
Supplemental Bill; filed by a Remainder-man
on the Deatk of a Tenant for Life.- Vide
Chap. X.
278 Precedents.
2 7
Precedents.
. Decree on an rgna n the ature o a
uppementa ed h a emander-man
on the Death o a Tenant or e. de
hap. .
. Decree on Ths cause comng on ths present da to be heard
au rgna debated be ore the. ght onorabe the Master
u n the
ature o a o the os n the presence o ounse earned on
uppementa gdes and the peadngs beng opened upon
debate o the matter and hearng what was aeged b
the ounse on both sdes s ordshp doth decare
that the pant as camng to be nterested n re-
mander to propert o whch atharne Mar p ohn
deceased n the peadngs o ths cause named was
tenant or e s entted to ha e the bene t o the
cause n the sad peadngs mentoned wheren the
sad atharne Mar p ohn b Thomas enr
aer her ne t rend was pant and the pan-
t and the de endants n ths cause were the de end-
ants and o a the proceedngs n such ormer cause
and that as ar as ma be necessar to obtan such
bene t the pant s entted to stand n the pace
o the sad atharne Mar p ohn or the purpose
o prosecutng and contnung the sad ormer sut and
proceedngs : nd s ordshp doth decree the same
accordng : nd t s ordered that the rder made
n ths cause a on the twent -second da o ebruar
1 41 be contnued and the accounts and n ures
thereb drected be carred on : nd s ordshp doth
reser e the consderaton o a arther drectons and
o the costs o ths sut unt a ter the sad Master
sha ha e made hs report pursuant to the sad rder :
a Ths was an order made on n ures whch had been drected
moton or contnung premnar n the orgna cause.
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Original from
Digitized by
(0) Upjohn v. Upjohn, Reg. Lib. B. 1840, fol. 1072j and supra,
Chap. X.
IN CHANCERY:
Humbly complaining shew unto your Lordship your XVI. Original
orators J oseph Hunt of &c. and William Brown of &c. BNilltin thfe
I a ure 0 a
that in the month of &c. J 01111Farrant, the defendant Supplemental
hereinafter named, being seised or otherwise entitled ~
in feesimple of or to a certain messuage and heredi- Mortgage in
taments called &c. situate, &c. borrowed the sum of fee.
3000 of William Dunsford of Cornhil l in the City of
London, merchant, upon the security of the said pre-
mises, andthereupon byindentures of lease andrelease
bearing date respecti vely &c. the indenture of release
being made between the said J ohn Farrant of the one
part, and the said William Dunsford of the other part,
in consideration of the sum of 3000 to the said J ohn
Farrant paid by the said William Dunsford, the said
messuage and hereditaments were conveyed and as-
sured by the said J ohn Farrant unto and to the useof
the said Will iamDuusford, his heirs and assigns, sub-
ject to aproviso for redemption of the same on pay-
ment by the said J ohn Farrant, his heirs, executors,
administrators, or assigns, to the said William Duns-
ford, his executors, administrators, or assigns, of the
sumof 3000, with interest for the same after the
And any of the parties are to be at liberty to apply to xv. Decree
this Court as there shall be occasion(b). or: a~Original
BIll I I I the
Nature of a
Supplemental
Bill.
XVI. Original Bill in the Nature of a Supplemental '---.,--I
Bill by the Assignees of a Sole Plaintiff who
becameBankrupt pendente lite.-Vide Chap.
XI.
279
Precedents.
Precedents. 279
nd an o the partes are to be at bert to app to . Decree
ths ourt as there sha be occason b .
n the
ature o a
uppementa
.
. rgna n the ature o a uppementa
b the ssgnees o a oe Pant who
became anhupt pendente te. de hap.
.
n hancer :
umb companng shew unto our ordshp our . rgna
orators oseph unt o c. and am rown o c. atuTe o a
that n the month o c. ohn arrant the de endant uppementa
T :
herena ter named beng sesed or otherwse entted t
n ee smpe o or to a certan messuage and hered- Mortgage n
taments caed c. stuate c. borrowed the sum o
3000 o am Duns ord o ornh n the t o
ondon merchant upon the securt o the sad pre-
mses and thereupon b ndentures o ease and reease
bearng date respect e :c. the ndenture o reease
beng made between the sad ohn arrant o the one
part and the sad am Duns ord o the other part
n consderaton o the sum o 3000 to the sad ohn
arrant pad b the sad am Duns ord the sad
messuage and heredtaments were con e ed and as-
sured b the sad ohn arrant unto and to the use o
the sad am Duns ord hs hers and assgns sub-
ect to a pro so or redempton o the same on pa -
ment b the sad ohn arrant hs hers e ecutors
admnstrators or assgns to the sad am Duns-
ord hs e ecutors admnstrators or assgns o the
sum o 3000 wth nterest or the same a ter the
b p ohn . p o n eg. b. . 1 40 o. 1072 and supra
hap. .
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Oriqinal from
Digitized by
Precedents.
Original bill
of foreclosure.
Amount of the
debt due at
the filing of
the original
bill.
possession.
Mortgagee
enters into
280
XVI. Original rate of five per cent. per annum, at the time in the
BNiltl in thfe said indenture of release mentioned, and lone: since
1a ure 0 a <...J
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
f~t~.es abso- 3000 was not paid at the time in the said indenture
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.
And your orators further shew that shortly after-
wards the said William Dunsford entered into posses-
sion, or into the receipt of the rent~ and profits, of
the said messuage and hereditaments, and continued
in such possession or receipt up to the time of his
bankruptcy hereinafter stated.
And your orators further shew that on the 6th day
of J une] 840 there was due to the saidWilliam Duns-
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 I8s. 5d.
And your orators further shew that on the said 6th
day of J une] 840 the saidWilliam Dunsford exhibited
his original bill of complaint in this Honorable Court
against the said J ohn 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 J ohn
Farrant might be decreed to pay to him the said
William Dunsford, or as he should direct, theamount
of what should be so found due to him, together with
the costs of that suit, by ashort day to beappointed for
that purposeby this Honorable Court, thesaidWilliam
2 0 Precedents.
. gaa rate o e per cent per annum at the tme n the
n the ndenture o reease mentoned and ong- snce
ature o a p
uppementa past as n and b the same ndentures o ease and
reease when produced w more u appear.
Mortgage be- nd our orators urther shew that the sad sum o
comes abso. 3000 was not pad at the tme n the sad ndenture
ute.
o reease n that beha pro ded whereb the estate
and nterest o the sad am Duns ord n the sad
messuage and heredtaments became absoute at aw
and redeemabe on n e ut .
Mortgagee nd our orators urther shew that short a ter-
enters nto -wards the sad am Duns ord entered nto posses-
possesson. . 1 r p
son or nto the recept o the rents and pronts ot
the sad messuage and heredtaments and contnued
n such possesson or recept up to the tme o hs
bankruptc herena ter stated.
mount o the nd our orators arther shew that on the 6t da
debt due at g4 g sa am Duns-
the ng o . .
the orgna ord on the securt o the sad mortgage or prnc-
pa and nterest a ter deductng a sums rece ed b
hm on account o the sad rents and pro ts or other-
wse the sum o 3 79 1 s. bc
rgna b nd our orators urther shew that on the sad 6t
da o une 1 40 the sad am Duns ord e hbted :
hs orgna b o compant n ths onorabe ourt
aganst the sad ohn arrant as de endant thereto
thereb statng the matters and thngs herenbe ore
stated and pra ng that an account mght be taken
b and under the drecton and decree o ths onor-
abe ourt o what was due to hm or prncpa and
nterest on hs sad mortgage and that the sad ohn
arrant mght be decreed to pa to hm the sad
am Duns ord or as he shoud drect the amount
o what shoud be so ound due to hm together wth
the costs o that sut b a short da to be apponted or
that purpose b ths onorabe ourt the sad am
b.
o orecosure.
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Original from
Digitized by
Dunsford being ready and willing and thereby offer- XVI. Original
.' Bill in the
ll1g, upon such payment being made, to reconvey the Nature of a
said messuage and hereditaments to the aid J ohn upplemental
Bill.
Farrant, '01' as he should direct; 01' that, in defaul t of "-.,----I
uch payment being made, the said J ohn Farrant, and
all per ons 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 Wif liarn
Dunsford, and that he the said Wil liam Dunsford
mises as the nature of his case might require, and to
your Lordship should seem meet.
And your orators further shew that the said JOb11Proceedings
Farrant, being duly served with process, appeared to in the cause.
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 the plaintiff.
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 J oseph 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-
281 Precedents.
Precedents. 2 1
Duns ord beng read and wng and tere o er- . rgna
. n the
ng upon such pa ment beng made to recon e te ature o a
sad messuage and heredtaments to the sad ohn uppementa
arrant or as e shoud drect or that n de aut o
such pa ment beng made the sad ohn arrant and
a persons camng under hm mght be barred and
orecosed o and rom a rght tte and e ut o re-
dempton o n and to the sad mortgaged premses
and mght de er up to the sad am Duns ord a
deeds e dences and wrtngs n ther custod or power
reatng thereto and mght do and e ecute a neces-
sar acts and deeds or the purpose o more e ectua
estng and securng the same to the sad am
Duns ord and that he the sad am Duns ord
mght ha e such arther or other ree n the pre-
mses as the nature o hs case mght re ure and to
our ordshp shoud seem meet.
nd our orators urther shew that the sad ohn Proceedngs
arrant beng du ser ed wth process appeared to
the sad b o the sad am Duns ord and put n
hs answer thereto to whch the sad am Duns-
ord reped and that the sad cause beng at ssue
wtnesses were e amned on both sdes and pubcaton
passed as b such b answer and proceedngs now
remanng as o record n ths onorabe ourt re er-
ence beng thereto had w more u appear.
nd our orators urther shew that be ore an ur- ankruptc o
ther proceedngs were had n the sad cause and on pamt .
or about c. a at n bankruptc was awarded and
ssued aganst the sad am Duns ord under whch
he was du ound and decared a bankrupt and our
orator oseph unt was du chosen b the credtors
o the sad am Duns ord to be the assgnee o hs
estate and e ects and our orator am rown was
du apponted the ca ssgnee n the sad bank-
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Original from
DI gI tI zed by
And that it may be declared that your orators as
such a slgnees as aforesaid, are entitled to have the
Prayer.
swer.
Calls for an-
Charge that
plaintiffs are
entitled to the
benefit of the
former suit.
~~Ii'n ~~itnal ruptcy; as by the said fiat and other proceedings, now
Nature of a of record in the Court of Bankruptcy, reference being
~~E:lemental had thereto, willmore fully appear.
'-,,---I And your orators further shew that your orators, as
Plaintiffs have h' hI ' ..
entered into SUC assignees, ave enterec into possesSIOn or into
possession. the receipt of the rents and profits of the said mort-
gaged premises.
Charge that And your orators charge that by virtue of their said
plaintiffs are
entitled to the appointment your orators have become entitled to the
mortgage debt. said sum of 3879 18s. 5d. 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
J ohn 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 ;-
l. Whether &c.
Precedents. 282
2 2
Precedents.
. rgna
n the
ature o a
uppementa
.
.
Pant s ha e
entered nto
possesson.
harge that
pant s are
entted to the
mortgage debt.
harge that
pant s are
entted to the
bene t o the
ormer sut.
as or an-
swer.
Pra er.
ruptc as b the sad at and other proceedngs now
o record n the ourt o ankruptc re erence beng
had thereto w more u appear.
nd our orators urther shew that our orators as
such assgnees ha e entered nto possesson or nto
the recept o the rents and pro ts o the sad mort-
gaged premses.
nd our orators charge that b rtue o ther sad
appontment our orators ha e become entted to the
sad sum o 3 79 1 s. bd. so due and owng or
prncpa and nterest as a oresad or to such other
sum as sha be ound to be now due and owng or
prncpa and nterest on the sad mortgage.
nd our orators charge that b the sad bank-
ruptc o the sad am Duns ord the sad sut so
nsttuted b hm has become de ect e but that our
orators as such hs assgnees as a oresad are entted
to ha e the bene t o such sut and o the proceedngs
theren and to prosecute the same aganst the sad
ohn arrant rom the perod when t so became de-
ect e as a oresad and that or that purpose ths
ther b ought to be taken as suppementa to the
sad b o the sad am Duns ord.
To the end there ore that the sad de endant ma
he can shew wh our orators shoud not ha e the
ree hereb pra ed and ma upon hs corpora oath
remembrance n ormaton and bee u true drect
and per ect answer make to such o the se era nter-
rogatores herena ter numbered and set orth as b
the note hereunder wrtten he s re ured to answer
that s to sa
1. hether c.
nd that t ma be decared that our orators as
such assgnees as a oresad are entted to ha e the
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Original from
Digitized by
I N T E R t~E T A R C H I V E .
C o
I N C H A N C E R Y .
Humbly complaining sheweth unto your Lordship XVI I . Supple-
Y
our orator J ohn Bailey of &c. that on &c. your orator me~tal Bill.
against ASSlg-
exhibited his original bill of complaint inthis Honorable nees of Bank-
Court, which was afterwards amended by order &c. and ~~~J a~r
which bill so amended was against David Smith and "--'
T E d
I',1 I h . Original bill for
homas gan as etendants t rereto ; t ereby statinq redemption of
that by indentures of lease and release, bearing date a 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
XVI I . Supplemental Bill against the Assignees of a
Defendant who becameBankrupt pendente
lite.-Vide Chap. XI.
benefit of the said original suit, and of the proceed- XVI . Original
. herei d 1 b li b Bill inthe
mgs t erem ; an t rat your orators may e at ] erty N ature of a
to prosecute the same against the said defendant from Supplemental
h
. d h h id " 1 . b d f Bill.
t eperlO w en t e sal orlgma SUI tso ecame e ec- '-v-'
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. Subpcena against J ohn Farrant.]
interrogatories.
283 Precedents.
Precedents. 2 3
bene t o the sad orgna sut and o the proceed- . rgna
ngs theren and that our orators ma be at bert ature o a
to prosecute the same aganst the sad de endant rom uppementa
the perod when the sad orgna sut so became de ec-
t e b the bankruptc o the sad am Duns ord
as a oresad and that or that purpose ths b ma be
taken as suppementa to the sad b o the sad -
am Duns ord and that our orators ma ha e the same
ree aganst the sad de endant as the sad am
Duns ord mght ha e had he had not become bank-
rupt and that our orators ma ha e c. urther
ree . ubpoena aganst ohn arrant.
nterrogatores.
. uppementa aganst the ssgnees o a
De endant who became ankrupt pendee
te. de hop. .
n hancer .
To the ght onorabe :c.
umb companng sheweth unto our ordshp uppe-
our orator ohn ae o c. that on c. our orator ta
. . . 1 o aganst ssg-
e hbted hs orgna b o compant n ths onorabe nees o ank-
ourt whch was a terwards amended b order c. and endant
whch b so amended was aganst Da d mth and
Thomas gan as de endants thereto thereb statng rede mp ton o
that b ndentures o ease and reease bearng date mortgage.
respect e the 20th and 21st da s o eptember
1 34 and made between our orator o the one part
and the sad Da d mth o the other part n cons-
deraton o a sum o 5000 to our orator ad anced
and ent b the sad Da d mth our orator con e ed
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Oriqinal from
Digitized by
and assigns for ever, subject to redemption on pay-
ment by your orator, his heirs, executors, administra-
tors, or assigns, unto the 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 saidsum
of 5000 was not paid to the said David Smith on the
day so appointed for such payment as aforesaid: And
further 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 thesaid 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 accrne upon the said sum of
5000, unto the said Thomas Egan his executors, ad-
ministrators, and assigns, for his and their own useand
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 the20th and 21st days of September 1834comprised,
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 furtlter stating that
the whole of the said sum of 5000 was still due and
Precedents.
284
XVII. S~pple- and assured unto the saidDavid Smith and his heirs a
mental Bill
against Assig- certain farm and hereditaments called Rosemount,
neestDfBank- situate at &c. of which your orator was seised in fee',
rup e-
fendant. to hold the same unto the said David Smith his heirs
"-.,.-I
2 4 Precedents.
. uppe- and assured unto the sad Da d mth and hs hers a
menta . p t h -r
aganst ssg- certan am and heredtaments caed osemount
neeso ank- g tua te at kc. o whch our orator as sesed n ee
rupt De- .
endant. to hod the same unto the sad Da d mth hs hers
and assgns or e er sub ect to redempton on pa -
ment b our orator hs hers e ecutors admnstra-
tors or assgns unto te sad Da d mth hs e ecu-
tors admnstrators or assgns o the sum o 5000
together wth nterest or the same a ter the rate
o our and a ha per cent per annum on the 21st da
o March 1 35 : nd urther statng that the sad sum
o 5000 was not pad to the sad Da d mth on the
da so apponted or such pa ment as a oresad : nd
urtcr statng that b ndentures o ease and reease
bearng date respect e the 4th and 5th da s o Ma
1 37 and made between the sad Da d mth o the
one part and the sad Thomas gan o the other part
or the consderatons theren mentoned the sad Da d
mth assgned the sum o 2500 beng one e ua
moet o the sad sum o 5000 so due rom our
orator as a oresad together wth one e ua moet o
a nterest thence orth to accrue upon the sad sum o
5000 unto the sad Thomas gan hs e ecutors ad-
mnstrators and assgns or hs and ther own use and
bene t. nd the sad Da d mth thereb con e ed
and assured the sad arm caed osemount and a
and snguar the heredtaments n the sad ndentures
o the 20th and 21st da s o eptember 1 34 comprsed
unto the sad Thomas gan and hs hers to the use
o the sad Thomas gan and Da d mth ther hers
and assgns as tenants n common sub ect ne erthe-
ess to such rght or e ut o redempton as the same
were sub ect to b rtue o the sad ndenture o the
21st da o eptember 1 34 : nd urther statng that
the whoe o the sad sum o 5000 was st due and
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Original from
Digitized by
owingfromyour orator, together with interest thereon XVII. upple-
after the rate afore aidfromthe21st day of September me~taltBAill.
agains ssig-
1840, and that he was desirous of redeeminz the said nees of Bank.
mortgage, and had applied for that purpose to the said ~~J a~t
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 themto
reconvey the said hereditaments to your orator, and
to deliver to him all deeds, papers and writings re-
J ating thereto; and that the said David Smith was
willing so to do, but that the saidThomas Egan refused
to accede to your orator's said requests: And pTaying Prayer,
that it might be referred to oneof the Masters of this
Honorable Court to take an account of "hat was
due fromyour orator to the said defendants for prin-
cipal and interest on the said mortgage, and to whom
the same was payable; and that npon payment by
your orator of the amount which should be so found
due, in themanner in which the said Master should
find the sameto 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
deed, 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 seemmeet.
Andyour orator further sheweth that the said David Appearance
S
ith dTh E bei dId ith of both de-
mit an omas gan, emg uy serve WIt pro- fendants.
ce s, appeared to your orator's said bill, and the said
David Smith put in his answer thereto; as by such Answer of
.. I bill d di .. f Smith
ongma 1 an procee mgs now remammg as 0 .
record in this Honorable Court, reference being had
thereto, will fully appear.
285 Precedents.
Precedents. 2 5
owng rom our orator together wth nterest thereon . uppe-
a ter the rate a oresad rom the 21st da o eptember g ss ..
1 40 and that he was desrous o redeemng the sad neeso ank.
mortgage and had apped or that purpose to the sad gndant
Da d mth and Thomas gan and o ered to pa
them the sad prncpa sum and nterest accordng to
ther se era rghts theren and had re uested them to
recon e the sad heredtaments to our orator and
to de er to hm a deeds papers and wrtngs re-
atng thereto and that the sad Da d mth was
wng so to do but that the sad Thomas gan re used
to accede to our orator s sad re uests : nd pra ng Pra er
that t mo-ht be re erred to one o the Masters o ths
onorabe ourt to take an account o what was
due rom our orator to the sad de endants or prn-
cpa and nterest on the sad mortgage and to whom
the same was pa abe and that upon pa ment b
our orator o the amount hch shoud be so ound
due n the manner n whch the sad Master shoud
nd the same to be pa abe whch our orator thereb
o ered to do the sad de endants mght be decreed
to recon e the sad mortgaged premses to our
rator or as he shoud drect and to de er up a
deeds papers and wrtngs n ther or ether o ther
custod or power reatng thereto and that our
orator mght ha e such urther or other ree n the
premses as the crcumstances o hs case mght re-
ure and to our ordshp shoud seem meet.
nd our orator urther sheweth that the sad Da d ppearance
. 1 1 o both de-
mth and Thomas gan bemg du ser ed th pro- endants.
cess appeared to our orator s sad b and the sad
Da d mth put n hs answer thereto as b such nswer o
orgna b and proceedngs now remanng as o
record n ths onorabe ourt re erence beng had
thereto w u appear.
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Oriqinal from
Digitized by
(a) Thesewordsought to be in- calls for ananswer to the original
serted when the supplemental bill bill.
Callsfor an-
swer to both
bills.
Assigneesare
necessary
parties.
XVII. S~pple- And your orator further sheweth by way of supple-
::~~ !~ig- ment, that before the said Thomas Egan had answered
nees of Bank- your orator's said bill, or any further proceedings
~:!J a~r were had in the said cause, and on or about &c. a fiat
"-.__.I in bankruptcy was awarded and issued against the
Bankruptcy . .
of Egan. said Thomas Egan, under which he was duly found
and declared a bankrupt; and Henry J ones, 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, wasduly appointed the Official Assignee under
the said bankru ptcy; 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 J ones 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 J ones and Wal tel'
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.
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
Precedents. 286
2 6
Precedents.
. uppe-
menta
aganst ssg-
nees o ank-
rupt De-
endant.
.
ankruptc
o gan.
ssgnees are
necessar
partes.
as or an-
swer to both
bs.
nd our orator urther seweth b wa o suppe-
ment that be ore the sad Thomas gan had answered
our orator s sad b or an urther proceedngs
were had n the sad cause and on or about c. a at
n bankruptc was awarded and ssued aganst the
sad Thomas gan under whch he was du ound
and decared a bankrupt and enr ones one o
the de endants herena ter named was du chosen b
the ma or part o the credtors to be the assgnee
o the estate and e ects o the sad bankrupt and
ater seman the other de endant herena ter
named was du apponted the ca ssgnee under
the sad bankruptc as b the sad at and other
proceedngs now remanng as o record n the ourt
o ankruptc re erence beng thereto had w more
u appear.
nd our orator charges that b means o such at
and proceedngs a the estate rght and nterest o
the sad Thomas gan n the sad mortgage debt and
the securt or the same has become ested n the
sad enr ones and ater seman and the sad
sut so nsttuted b our orator as a oresad has be-
come de ect e but our orator s entted to ha e
the bene t o such sut and o a the proceedngs
theren aganst the sad enr ones and ater
seman as such assgnees as a oresad and to ha e
the same ree aganst them as he mght ha e had
aganst the sad Thomas gan he had not become
bankrupt.
the can shew wh our orator shoud not ha e the
ree hereb and b hs sad orgna b a pra ed
and ma upon ther se era and respect e corpora
a These words ought to be n- cas or an answer to the orgna
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Original from
Digitized by
- His Honor doth declare the plaintiff entitled to X III. Decree
the benefit of the former suit and of the decree made on aSUPI?le-
, mental Bill
therein, bearing date &c.and of the proceedings under against As-
the same, against the present defendant, as represen- ~
tative of the defendant J ohn Cumberland Altham;
XVIII. Decree on a Supplemental Bill against the
Assignees of a Defendant to the Original
Bill, who had becomeInsolvent after De-
cree.-Vide Chap. XI.
oaths, according to the best and utmost of their seve- XVII. Supple-
1 d
. k 1db' e mental Bill
ra an respective now e ge, remem ranee, mrorrna- against Assig-
tion, and belief, full, true, direct, and perfect answer nees of Bank-
k I f h 1
. .. rupt De-
rna e to suelOt e severa interrogatories III your fendant.
orator's said original bill numbered and set forth, as '-,----I
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;-
I. 'Vhether &c.
And that your orator may have the benefit of his Praye .
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 bad against the said Thomas Egan if he
had not become such bankrupt as aforesaid; and that
your orator may have &c. [Further relief. Subpcena
for appearance and answer to both bills against Henry
J ones and Walter Wiseman.]
The defendants are required to answer all the
above interrogatories.
287 Precedents.
Precedents. 2 7
oaths accordng to the best and utmost o ther se e- uppe-
1 111 1 p menta
ra and respect e knowedge remembrance norma- aganst ssg.
ton and bee u true drect and per ect answer nees o ank-
1 rupt De-
make to such o the se era nterrogatores n our endant.
orator s sad orgna b numbered and set orth as
b the note thereunder wrtten the sad Thomas gan
was re ured to answer and aso to such o the sad
se era nterrogatores herena ter numbered and set
orth as b the note hereunder wrtten the are re-
spect e re ured to answer that s to sa
1. hether c.
nd that our orator ma ha e the bene t o hs Pra er
sad orgna sut and o a the proceedngs theren
aganst the sad de endants as such assgnees as a ore-
sad and ma ha e the same ree aganst them as he
mght ha e had aganst the sad Thomas gan he
had not become such bankrupt as a oresad and that
our orator ma ha e c. urther ree . ubpoena
or appearance and answer to both bs aganst enr
ones and ater seman.
The de endants are re ured to answer a the
abo e nterrogatores.
n. Decree on a uppementa aganst the
ssgnees o a De endant to the rgna
D who had become nso ent a ter De-
cree. de hap. .
s onor doth decare the pant entted to . Decree
the bene t o the ormer sut and o the decree made ntamu
theren bearng date c. and o the proceedngs under aganst s-
the same aganst the present de endant as represen-
tat e o the de endant ohn umberand tham
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Original r m
DI gI tI zed by
(a) Phillips v. Clark, Reg. Lib. B. 1833 fol. 1391.
XIX. Order - His Honor doth order that the said petitioner
that PtUtrchdaserWilliam Farlar be at liberty to attend the said Master
maya en
the Master. upon the several inquiries directed by the said order
'-.---J of the 6th day of June 1821 ; and it is ordered that
the solicitor for the plaintiffs do, from time to time,
give 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
In this case William Farlar, a stranger to the suit,
had purchased, after decree, but pending a reference
to the Master, the interest of Will iam Francis Toosey,
one of the plaintiffs, who had since become insolvent.
XIX. Order that a Purchaser pendente lite, not a
Party to the Suit, be at liberty to attend
the Master in making Inquiries under the
Decree.-Vide Chap. XI.
XVIII. Decreeand His Honor doth order and decree the same ac-
~~:t~Ufih~e- cordingly; and it is ordered that the said decree and
a%ainst As- proceedings be carried on against the said defendant,
signees, h di db' d . h .d
'-.---J as t ey were irecte to e carne on against t e sal .
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 Ca).
Precedents.
288
2
Precedents.
. Decree and s onor coth order and decree the same ac
on a uppe
menta
aganst s-
sgnees.
cordng and t s ordered that the sad decree and
proceedngs be carred on aganst the sad de endant
as the were drected to be carred on aganst the sad
de endant ohn umberand tham and s onor
doth reser e the consderaton o a urther drectons
and o the costs o ths sut as the same were reser ed
b the ormer decree and an o the partes are to be
at bert to app to ths ourt as the ma be ad-
sed .
. rder that a Purchaser pendente te not a
Part/ to the ut be at bert to attend
the Master n makng n ures under the
Decree. de hap. .
n ths case am arar a stranger to the sut
had purchased a ter decree but pendng a re erence
to the Master the nterest o am rancs Toose
one o the pant s who had snce become nso ent.
. rder
that Purchaser
ma attend
the Master.
s onor doth order that the sad pettoner
am arar be at bert to attend the sad Master
upon the se era n ures drected b the sad order
o the Gth da o une 1 21 and t s ordered that
the soctor or the pant s do rom tme to tme
o e notce to the pettoner o a proceedngs to be
had and taken n the sad Master s ce and other-
wse n and about the sut unt the urther order o
a Phps . ark eg. b. . 1 33 o. 1391.
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Original from
DI gitized by
(a) Toosey v. Burchell, Reg. Lib. B. 1820, fo1. 1427.
U
Humbly complaining sheweth unto your Lordship xx. Supple-
Y
our orator Thomas Winslow of &c. that on or about ITIeI:talBill .
against a Child
&c. your orator exhibited his original bill of complaint b,ornpendente
in this Honorable Court against Stephen J oy and l~
Lucy his wife and Mary Sumner, as defendants there- Original bill
to the1'ebystating the will of the Rev. Arthur Sumner by executor
, for an account.
deceased, beating date &c. whereby, after bequeath-
ing divers pecuniary and specific legacies as therein
ment.ioned, 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 J oy
during his life, and after his decease to the said Lucy
J oy during her life, and after the decease of the sur-
vivor of them the said Stephen J oy and Lucy his wife,
XX. Supplemental Bill against an Infant bOT1~ pen-
dente lite.-Vide Chap. XII.
IN CHANCERY.
this Court ; the petitioner by his Counsel undertaking XIX. Order
h
f I I . d fl' f that Purchaser
to pay t e costs 0 a parties, an 0 tre aSSIgnees 0 may att nd the
the plai ntiff Williarn Francis Toosey, of this applica- Ma ter.
tion, to be taxed &c. and that the same be paid by the '-v----I
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 (a).
2~9 Precedents.
Precedents. 2 9
ths ourt the pettoner b hs ounse undertakng . rder
to pa the costs o a partes and o the assgnees o a attend the
the pant am rancs Toose o ths appca- aste-.
ton to be ta ed c. and that the same be pad b the
sad pettoner and ths order s to be wthout pre-
udce to the rghts o the partes to ths sut and aso
wthout pre udce to the rght o the assgnees o the
pant am rancs Toose to dspute the a-
dt o the assgnment n the sad petton named .
. uppementa aganst an n ant born en-
dente te de hap. .
n hancer .
umb companng shewet unto our ordshp . uppe-
our orator Thomas nsow o c. that on or about ganst hd
c. our orator e hbted hs orgna b o compant hom pendente
n ths ono abe ourt aganst tephen o and
uc hs w e and Mar umner as de endants the-e- rgna b
to thereb statng the w o the e . rthur umner e ecutor
. account.
deceased bearng date c. whereb a ter be ueath-
ng d ers pecunar and spec c egaces as theren
mentoned he ga e and be ueathed the resdue o hs
persona estate to our orator upon trust to con ert
the same nto mone and to n est the proceeds
thereo as theren mentoned and to pa the annua
ncome arsng there rom to the sad tephen o
durng hs e and a ter hs decease to the sad uc
o durng her e and a ter the decease o the sur-
or o them the sad tephen o and uc hs w e
a Toose . urche eg. b . 1 20 o. 1427.
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Ori In If m
C I rtized b
XX. Supple- upon trust to pay and transfer the capital of the said
mental aiu II 1 hild f h id S 1
against a Child investments unto a the c I C ren 0 t e sal tep len
b_orn pendente J oy hy the said Lucy his wife, who being sons should
lite. . h f b' d h
__ .-_ attain t eage 0 twenty-one years, or emg aug tel'S
should attain that age or be mar-ried, 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 J oy 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 J oy 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
Dr other relief in the premises as the circumstances
of his case might require, and t.oyour Lordship should
eemmeet.
Precedents. 290
290 Precedents.
. uppe- upon trust to pa and trans er the capta o the sad
r a ast a hd n estments unto a the chdren o the sad tephen
horn pendente o b the ad uc hs w e who beng sons shoud
- attan the age o twent -one ears or beng daughters
shoud attan that age or be marred e ua to be
d ded between them share and share ake and n
case there shoud be on one such chd n trust or
such on chd and n case there shoud be no chd
o the sad tephen o b the sad uc hs w e
who beng a son shoud e to attan the age o
twent -one ears or beng a daughter shoud attan
that age or be marred then upon trust to pa and
trans er the sad trust unds to the sad Mar umner
her e ecutors admnstrators or assgns and the sad
testator apponted our orator soe e ecutor o hs
sad w : nd urther statng the death o the sad
testator and the probate o hs w b our orator
and that the sad tephen o had then no ssue b the
sad uc hs w e : nd pra ng that the trusts o the
sad w o the sad testator mght be e ecuted under
the sancton o ths onorabe ourt and that proper
accounts mght be taken under a decree o ths ourt
o the persona estate o the sad testator and o hs
debts and unera and testamentar e penses and o
the egaces g en b hs w and that such persona
estate mght be apped n a due course o admnstra-
ton and the cear resdue thereo ascertaned and
n ested and secured or the bene t o a partes en-
tted thereto our orator submttng to account or
a assets rece ed b hm or b hs order or or hs
use and to act n the premses as the ourt shoud
drect and that our orator mght ha e such urther
or other ree n the premses as the crcumstances
o hs case mght re ure and to our ordshp shoud
seem meet.
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And your orator further sheweth, that the said xx. Supple-
S h J dL b
if dM -s mental Bill
I tep en oy an ucy IS WI e, an ary urnner, against a Child
being duly served with process, appeared to your b.ompendente
orator's said bill, and put in their answers thereto, l~
and the said cau e came on to be heard on bill and Appearance,
answer before His Lordship the Master of the R olls Answer, and
Decree for
on &c. when His Lordship was 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 cometo the hands of
your orator, or of any other person or persons by his
order or for his use; and it wasordered that the said
Master should proceed to take anaccount of thedebts,
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 Ii berty 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 yet made his
report.
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 achild
ment, that pending the aforesaid proceedings before intderestehd ill
un er t e w .'
the Master, and on &c. a child was born of the said
u2
291 Precedents.
Precedents. 291
nd our orato urther sheweth that the sad . uppe-
tephen o and uc hs w e and Mar umner
beng du ser ed wth process appeared to owr om pendente
orator s sad b and put n ther answers thereto t
and the sad cause came on to be heard on b and ppearance
answer be ore s ordshp the Master o the os nswer and
. Decree or
on c. when s ordshp ras peased to order and account.
decree that t shoud be re erred to the Master o ths
ourt n rotaton to n ure and state whether there
was or had e er been an and what ssue o the sad
tephen o b the sad uc hs w e and n case
he shoud nd that there was not and ne er had
been an such ssue then our orator submttng
b hs sad b to account t was ordered that the sad
Master shoud proceed to take an account o the per-
sona estate o the sad testator come to the hands o
our orator or o an other person or persons b hs
order or or hs use and t was ordered that the sad
Master shoud proceed to take an account o the debts
unera e penses and egaces o the sad testator :c.
the usua decree or an account. nd ths ourt
reser ed the consderaton o a urther drectons
unt a ter the sad Master shoud ha e made hs re-
port and an o the partes were to be at bert to
app to ths ourt as the shoud be ad sed.
nd our orator urther sheweth that d ers pro- Master has not
ceedngs ha e n pursuance o the sad decree been
had be ore the Master to whom the sad cause was
re erred but he has as et made no report thereon
as b such b and proceedngs now remanng as
o record n ths onorabe ourt re erence beng
thereto had w more u appear.
nd our orator urther sheweth b wa o suppe- rth o ach d
ment that pendng the a oresad proceedngs be ore nterested
the Master and on c. a chd was born o the sad
u2
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Digitized by
(a) These words should be in- calls for an answer to the original
serted when the supplemeutal bill bill.
Calls for an-
swer to both
bills.
XX. Supple. Lucy J oy, by her husband the said Stephen J oy; and
mental Bill .
against a Child that such child was a daughter, and has since been
I
b,ornpendente christened by the name Lucetta, and is the defendant
ite .
.._,____, hereinafter named.
And your orator charges that such child is interested
in the residuary personal estate of the said Arthur
Sumner, and isanecessary party to this suit., ana that
your orator is entitled tohavethe same relief fromhis
said original bill as if the said Lucetta J oy had been
born before the same was filed, and had been made a
party thereto.
To the end therefore that the said defendant may, if
she can, 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
a1soto 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. Subpcenafor appearance and answer
to both bills against Lucetta J oy.]
The defendant is required to answer the interro-
gatories in the original bill numbered respec-
tive1y &c. and all the above interrogatories.
Precedents. 292
292 Precedents.
. uppe- uc o b her husband the sad tephen o : and
menta . - - .
aganst a hd that such chd was a daughter and has snce been
horn pendente chrstened b the name ucetta and s the de endant
hte. .
herena ter named.
nd our orator charges that such chd s nterested
n the resduar persona estate o the sad rthur
umner and s a necessar part to ths sut and that
our orator s entted to ha e the same ree rom hs
sad orgna b as the sad ucetta o had been
born be ore the same was ed and had been made a
part thereto.
as or an- To the end there ore that the sad de endant ma
bk. shew wh our orator shoud not ha e the
ree hereb and b hs sad orgna b a pra ed
and ma upon her corpora oath accordng to the best
and utmost o her knowedge remembrance n orma-
ton and bee u true drect and per ect answer
make to such o the se era nterrogatores n our
orator s sad orgna b numbered and set orth and
aso to such o the se era nterrogatores herena ter
numbered and set orth as b the note hereunder
wrtten she s re ured to answer that s to sa
1. hether c.
nd that our orator ma ha e the same ree rom
hs sad orgna b as the sad de endant had been
born be ore the same was ed and had been made a
part thereto and that our orator ma ha e c.
urther ree . ubpoena or appearance and answer
to both bs aganst ucetta o .
The de endant s re ured to answer the nterro-
gatores n the orgna b numbered respec-
t e ec. and a the abo e nterrogatores.
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Di 9 itized by
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.
ABSCONDING,
defendant, see ORDER FOR REVIVOR.
ABATEMENT,
definition of, 63.
nature of, 65.
partial, 65, 70.
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.
A.
I N D E X.
D .
.
T M T
de nton o G3.
nature o 65.
parta 65 7 .
what e ents cause t 66.
e ects o 72.
on e stng proceedngs 72.
order to dsmss b 72.
process n unctons c. 73.
perpetua n uncton 73.
b taken pro con esso 225.
on urther proceedngs 73.
order n the cause 73 79.
dsmssa o b see Dsmssa o .
process o contempt 74.
cross b 75.
depostons 75 79.
passng a decree 75.
when parta on 76.
pa ment out o ourt 77.
de er o deeds and wrtngs 79.
conduct o the cause 79.
enroment o decree 79.
udgment 0.
order on appea 0.
D G
de endant see rder or e or.
T
taken n the orgna sut
not bndng on a part omtted 41.
how ar bndng on an assgnee 1 7.
partnershp
ma be drected upon petton 14.
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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 aitaie, 204.
pendente 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.
ACCOUNTS-continued.
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 consequenceof the suit, 220.
INDEX. 294
294 D .
T cow mMe .
partnershp
ought to be taken under the genera order to take accounts 14.
ma now be taken up to the tme o takng wthout suppementa
b 219.
uness the account s n conse uence o the sut 220.
DM T T
de bons non
ma re e the sut o the ormer admnstrator 153.
the persona representat e o the ormer admnstrator need
not be a part 226.
durante mnor cetate 204.
endente te 205.
D T
n support o a petton or ea e to e a b o re ew 44.

whether hs sut abates on the commencement o a war 70.
T see ssgnment.
see ssgnee.
M DM T
n respect o errors nherent
n what cases aowed 14.
pre erabe to suppementa b 6.
ma be ntroduced nto bs o re or 104.
or suppementa bs n the nature o bs o re or 134.
ma be a ter re or 145.
n respect o errors subse uent 4 61 20 .

to orgna b
caed or b suppementa b 25 3 .
b o re or 106 123.
to suppementa b 37.
to b o re or 119.
tme aowed or e ects o re or on 137.
PP
e ect o a re or o the sut beow upon 142.
PP
to orgna b
where de endant des be ore 21 100.
de ses be ore 133.
assgns be ore 1 2.
to b o re or 115.
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BANKRUPTCY,
does not cause abatement, 70.
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.
B.
ATTAINDER,
whether it causes abatement, 80.
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.
See also ASSIGNEE.
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.
295 INDEX.
D . 295
T
b o re or ma n ure as to 105.
G
cannot e a b o re ew 46.
n bankruptc or nso enc see ankruptc and nso enc .
o a soe pant
dsputed 1 0.
tota 174.
parta 1 1
o a co-pant 1 1.
o a de endant 1 2.
comes n pro bono et mao 192.
ma add hmse to the sut 192.
sometmes wthout ng a b 193.
otherwse b a new b a ter notce to the pant 193.
how ar he obtans the bene t o a ormer decree 177 195
ee aso ssgnment.
G M T
e ects o 63 171.
tota b soe pant 173.
where the pant adds the assgnee to the sut 1 0.
dsputed 1 0.
parta 1 1.
b copant 1 1.
b de endant 1 2.
be ore appearance 1 2.
where the assgnee adds hmse to the sut 192.
5 ee aso ssgnee.
TT D
whether t causes abatement 0.
.
PT
pant
ma proceed wth hs own sut 1 0.
whether he must brng orward hs assgnees 1 1.
de endant
pant ma go n under the bankruptc 1 2.
whether he ma ha e hs b dsmssed wthout costs 1 2.
ee aso ankruptc .
PT
does not cause abatement 70.
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BISHOP,
death of a, 148.
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.
dismis al of, see DISMISSAL OF BILL.
BILL OF REVIVOR,
when necessary, 98.
one bin in several suits, 98.
may be joined with a supplemental bill, see BILI. 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, 106.
parties to, 106. . .
subpoena upon, 112.
is a distinct record from the original bill, 114.
is useless without an order for revivor, 113.
dismissal of, in default of obtaining order for revivor, see DISMJSSAL
OF BILL.
original bill in the nature of a, see ORIGINAL BJLL.
supplemental bill in the nature of a, see SUPPLEMENTAL BILL.
BILL OF REVIEW,
when necessary, 44.
supplemental bill in the nature of a, see SUPPLEMENTAL BILL.
See also DECREE, and SUPPLEMENTAL,. MATTER.
BENEFIT OF FORMER PROCEEDINGS,
how far obtained in supplemental suit, 150, 177, 195.
whether obtained by order or decree, 152.
BANKRUPTCY-continued.
of plaintiff, dismissal of bill upon, see DISMISSAL OF BILL.
assignees in,
death of, pendente lite, 155.
removal of, pendente lite, 205.
See also BANKRUPT.
INDEX. 296
296 D .
PT con/mwe .
o pant dsmssa o b upon see Dsmssa o .
assgnees n
death o pendente te 155.
remo a o pendente te 205.
ee aso ankrupt.
T M P D G
how ar obtaned n suppementa sut 150 177 195.
whether obtaned b order or decree 152.

when necessar 44.
suppementa b n the nature o a see uppementa .
ee aso Decree and uppementa Matter.

when necessar 9 .
one b n se era suts 9 .
ma be oned wth a suppementa b see u o e or and
uppement.
orm o 102.
ma n ure as to assets o deceased de endant 105.
sometmes cas or answer to the orgna b 106 123.
a ter decree must not contro ert the decree 100.
partes to 106.
subpoena upon 112.
s a dstnct record rom the orgna b 114.
s useess wthout an order or re or 11.3.
dsmssa o n de aut o obtanng order or re or sen Dsmssa
.
orgna b n the nature o a see rgna .
suppementa b n the nature o a see uppementa .
D PP M T
nature o 99 105 106 112 225.
cas or an answer 105 106.
order or re or as to the re or part o t 225.
s set down to be heard as to the suppementa part 125 225.
aganst the part to the re or part as we as the part to the
suppementa part 125.
dsmssa o see Dsmssa o .
P
death o a 14 .
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Original from
Digitized by
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, u6.
D.
CROSS BILL,
filed during abatement, gains priority, 75.
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.
COSTS,
no revivor for, 82.
. unless taxed, 83.
or left untaxed by special agreement, 83.
or tobe paid out of a particular fund, 84.
effects of revivor on, 143.
when the abatement and revivor are before the decree for costs,
143.
when they are after the decree for costs, 144.
CORPORATION SOLE,
death of, 148,
CONSENT,
decree taken by, cannot be reviewed, 46.
CONFESSION,
after decree, by plaintiff, will not warrant a bill of review by de-
fendant, 54.
C.
CESSATION OF AN INTEREST,
on the death of a party, 148.
during the lifeof a party, 201.
CHILD, see INFANT.
COMMITTEE OF LUNATIC, see LUNATIC.
CONDUCT OF THE CAUSE,
. may be sometimes changed during an abatement, 7.9.
297 INDEX.
D . 297
T T T
on the death o a part 14 .
durng the e o a part 201.
D see n ant.
MM TT T see unatc.
D T T
ma be sometmes changed durng an abatement 7.9

a ter decree b pant w not warrant a b o re ew b de-
endant 54.
T
decree taken b cannot be re ewed 46.
P T
death o 14
T
no re or or 2.
uness ta ed 3.
or e t unta ed b speca agreement 3.
or to be pad out o a partcuar und 4.
e ects o re or on 143.
when the abatement and re or are be/ore the decree or costs
143.
when the are a ter the decree or costs 144.
D T T
does not abate b death o co-pant 65.
uness the pant s sue n respect o ther se era demands or
n d erent capactes 66.
death o a soe pant n a 155.

ed durng abatement gans prort 75.
D.
D T
the nterest sur es the sut abates 62 65.
not the sut termnates as to that part 63.
what e ents cause a c death 66.
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Origin Ifrom
Digitizedby
DEPOSITIONS,
taken during abatement, 75, 79, 80.
in supplemental suit, see EVIDENCE.
DEPOSIT,
on filing a supplemental bill in the nature of a bill of review, 45, n.
DEMURRER,
to a supplemental bill, 37.
to a bill of revivor, 118, 124.
DEFENCE,
to the original bill, effect of revivor on, 142.
to a bill of revivor, 118.
DEEDS AND WRITINGS,
may be ordered to be delivered up, during an abatement, 79.
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, ] 50,
177, 195.
on a supplemental bill, 41, 190.
in a revived suit, 147.
INDEX. 298
29 D .
D
n the orgna sut
partes omtted ma be added a ter 19.
suppementa b n ad o 21.
how re ersed on suppementa matter 43.
sgned and enroed b b o re ew 44.
not b rehearng and suppementa b 44.
cannot be re ewed b assgnee or de see 46.
nor taken b consent 46.
obtaned b raud must be re ersed b a new orgna
b 54.
must be per ormed be ore the re ew 55.
must be mpeached n the ourt n whch t was made 56.
ma be re ewed more than once 57.
ma be re ewed a ter a rmaton n the ouse o ords
57.
wthn what tme 57-
ee aso uppementa Matter.
cannot be atered on account o an e ent subse uent 220.
pronounced be ore abatement cannot be passed durng abate-
ment 76.
how ar the bene t can be obtaned n a suppementa sut 150
177 195.
on a suppementa b 41 190.
n a re ed sut 147.
D D D T G
ma be ordered to be de ered up durng an abatement 79.
D
to the orgna b e ect o re or on 142.
to a suppementa b 37.
to a b o re or 11 .
D M
to a b o re or 11 124.
D P T
on ng a suppementa b n the nature o a b o re ew 45 n.
D P T
taken durng abatement 75 79 0.
n suppementa sut see dence.
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Original from
Di gitized by
EXCEPTIONS,
to answer to bill of revivor, 122.
EVIDENCE,
in the original suit, when used in the supplemental suit, 40, 41,187.
in a supplemental suit, 39, 186.
ERRONEOUS STATEMENT,
may be corrected by a supplemental bill, 9.
but the correction must not change the original issue, 11, 223.
ERROR, see ERRONEOUSSTATEMENT,and IMPERFECTION.
E.
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,
ll6.
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.
DILIGENCE, see SUPPLEMENTALMATTER.
DISCOVERY,
supplemental bill for further, 17.
revivor for further, 84.
DEVISE,
by a sole plaintiff, 126.
by a defendant, 131.
by a co-plaintiff, 136.
after decree, 136.
DEVISEE,
cannot review a decree, 46.
See also DEVISE.
299 IN.DEX.
D . 299
D
b a soe pant 126.
b a de endant 131.
b a co-pant 13G.
a ter decree 136.
D
cannot re ew a decree 46.
ee aso De se.
D G see uppementa Matter.
D
suppementa b or urther 17.
re or or urther 4.
D M
o orgna b
or want o prosecuton
how order or s a ected b abatement 72.
cannot be mo ed or durng abatement 73 74.
on the bankruptc o a soe pant 174.
co-pant 177.
n de aut o re or n a g en tme 7 116.
o b o re or
n de aut o obtanng order or re or 116.
but ths does not e tend to a dsmssa o the orgna b aso
116.
o b o re or and suppement
cannot be mo ed or n de aut o obtanng order or re or
b the de endant to the suppementa part 117.
.
T T M T
ma be corrected b a suppementa b 9.
but the correcton must not change the orgna ssue 11 223.
see rroneous tatement and mper ecton.
D
n the orgna sut when used n the suppementa sut 40 41 1 7.
n a suppementa sut 39 1 6.
n a re ed sut 145.
PT
to answer to b o re or 122.
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rI In f
DI rtrzed b
GENERAL ORDERS,
IS28, XIII., 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., 111.,37, 118.
,---- XV!., 37, 118.
G.
FRAUD,
decree obtained by, see DECREE.
FEME COVERTE,
proceedings by, on death of husband pendente lite, 16S.
whether liable to the former costs, 16S.
whether bound by the former proceedings, 16S.
whether bound by her former answer, 169.
where anewinterest arises in her, 169.
F .
EXECUTOR,
interrogatory whether indebted to testator, 15.
of plaintiff,
may either revive or commence anewsuit, S1.
but cannot commence a newsuit without payingthe costs of
the abated suit, 91.
revivor by, 9S.
must charge that he has proved the will, 105.
of defendant,
revivor against, 9S.
interrogated as to assets, 105.
howfar liable to costs, 143.
acting by mistake, 154.
EXCOMMUNICATION,
INDEX. 300
300 D .
MM T
T
nterrogator whether ndebted to testator 15.
o pant
ma ether re e or commence a new sut 1.
but cannot commence a new sut wthout pa ng the costs o
the abated sut 91.
re or b 9 .
must charge that he has pro ed the w 105.
o de endant
re or aganst 9 .
nterrogated as to assets 105.
how ar abe to costs 143.
actng b mstake 154.
M T
proceedngs b on death o msh nd pendente te 1G .
whether abe to the ormer costs 16 .
whether bound b the ormer proceedngs 16 .
whether bound b her ormer answer 169.
where a new nterest arses n her 169.
D
decree obtaned b see Decree.
G D
1 23 n. 5.
. 5 6 223.
1 33 . 115.
. 116 119.
ppend 36 115.
1 41 ug. . 115.
.. 115 119.
. 23 102.
1 42 ct. . 37 11 .
. 37 11 .
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Original from
Digitized by
INSOLVENCY,
assignees in,
removal of, pendente lite, 205.
INJ UNCTION,
how affected by abatement, 73, 91.
revivor, 141.
perpetual, does not abate, 73.
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.
IDIOT,
plaintiff becoming, pendente lite, 179.
IMBECILE,
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.
1.
HEIR,
revivor by 01' 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.
intail, 161, 166.
HUSBAND,
party in right of his wife, death of, 168.
HEARING,
of supplemental suit, 41.
of revivor suit, 123.
H.
INDEX.
D . 30
.
G
o suppementa sut 41.
o re or sut 123.

re or b or aganst 9 .
necessar part to a sut or re or b or aganst a de see 131
135.
how ar abe to costs 143.
rght u put n the pace o a wrong u 206.
n ta 1G6.
D
part n rght o hs w e death o 16 .
.
D T
pant becomng e eM e te 179.
M
a.at becomng pendente te 179.
MP T
orgna nherent n a sut 2 4.
subse uent to the nsttuton o the sut 1 61.
aterng the partes 61.
not aterng the partes 63 20 .
T
co-pant on attanng twent -one ma be made de endant b
suppementa b 20
born pendente te 19 .
where he s an ntermedate tenant n ta 199.
T
how a ected b abatement 73 91.
re or 141
perpetua does not abate 73.

assgnees n
remosa o pe7dente te 205.
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rI InI fro
U N I'l i E R S IT Y a F C A L I F O R N III.
DI rnzed by
MARRIAGE,
of a femaleplaintiff, causes abatement, 67.
secus, of a femaledefendant, 68.
M.
LUNATIC,
death of, during reference to the Master, 77, n.
death of his committee, pendente lite, 154.
LEA VE OF THE COURT,
not necessary for a supplemental bill, 13, 22, 223.
unless it isin the nature of a bill of review, 22, 44, 57.
LIMITATION OF TIME,
for bringing a bill of review, 57.
L .
KIN, NEXT OF, see NEXTOFKIN.
K.
J URISDICTION,
party out of, on comingwithin, added by supplemental bill, 19.
J OINT TENANT,
death of a, 107, 158.
J UDGMENT,
may be pronounced during an abatement, 80.
revivor of, at law, 153.
J .
INTERPLEADER,
death of plaintiff in a suit of, 170.
ISSUE,
the original, see SUPPLEMENTAL MATTER.
INSOLVENT, see INSOLVENCY.
INTERROGATORIES,
in a supplemental suit, 39.
INDEX. 302
302 D .
T see nso enc .
T G T
n a suppementa sut 39.
n a re ed sut 145.
T P D
death o pant n a sut o 170.

the orgna see uppementa Matter.
T T T
death o a 107 15 .
DGM T
ma be pronounced durng an abatement 0.
re or o at aw 153.
D T
part out o on comng wthn added b suppementa b 19.
.
T see e t o n.
T T
not necessar or a suppementa b 13 22 223.
uness t s n the nature o a b o re ew 22 44 57.
M T T T M
or brngng a b o re ew 57.
T
death o durng re erence to the Master 77 n.
death o hs co m tt pendente te 154.
pant becomng pendente te 179.
M.
M G
o a emae pant causes abatement 67.
sec s o a emae de endant 6 .
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Original from
Digitized by
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 OFBILL.
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.
inthe nature of a bill of revivor,
when necessary, 127.
nature of, 127.
O.
NE EXEAT REGNO,
writ of, may be obtained without supplemental bill, 215.
NEXT FRIEND,
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 acreditor's intention to take it up after abate-
ment, 156.
by assignee, of his intention to add himself to the suit, 193.
NAME OF PLAINTIFF,
error in, 26.
N.
303
INDEX.
D . 303
.
M P T
error n 26.
T G
wrt o ma be obtaned wthout suppementa b 215.
T D
death o pendente e 155.
T
ound b the Master added b suppementa b 19.
T
o ntenton to re e not necessar 95.
n a credtor s sut o a credtor s ntenton to take t up a ter abate-
ment 156.
b assgnee o hs ntenton to add hmse to the sut 193.
.
D
to dsmss b see Dsmssa o .
obtaned durng abatement s rreguar 74.
but not a nut 75.
rreguar ma be dscharged durng abatement 79.
on appea ma be made durng an abatement 0.
or re or
ts e ect 113.
when to be mo ed or 114.
where de endant absconds 114.
re uses to appear 115.
appears but does not shew cause 115.
shews cause 11 .
moton to dsmss n de aut o see Dsmssa o .
ma be obtaned b de endant a ter decree on pant s b
o re or 117.
whether to be ser ed on the opposte soctors 11 .
stop order 193.
D G see Genera rders.
G
appearance to see ppearance.
answer to see nswer.
n the nature o a b o re or
when necessar 127.
nature o 127.
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Orl InIf
U N IV E R S IT Y a F C A L I F O R N III.
01gIt Ized by
PER PETUATE TESTIMO N Y, see TESTIMO N Y.
PAYMEN T O UT O F CO UR T,
may be sometimes made during an abatement, 77.
PAR TIES,
omitted in original bill, see PAR TY O MITTED.
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.
PAR TN ER SHIP ACCO UN TS, see ACCO UN TS.
PAR TY O MITTED,
added by amendment, 5.
supplemental bill, 18.
may bring himself before the Court, 19.
PAPIST, see PO PISH R ECUSAN CY.
P .
O UTLAWR Y,
whether it causes abatement, 68.
O R IGIN AL BILL-continued.
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.
O R IGIN AL CASE, see SUPPLEMEN TAL MATTER .
O R IGIN AL lSSUE, see SUPP~EMEN TAL MATTER .
O R IGIN AL STATEMEN TS,
how far repeated in supplemental bill, 23, 184.
bill of revivor, 102.
IN DEX. 304
304 D .
G connued.
n the nature o a b o re or
orm o 129.
partes to 131.
de ence to 131.
subse uent proceedngs on 131.
n the nature o a suppementa b
when necessar 14 174.
nature o 14 .
orm o 149.
de ence to 150.
bene t o ormer proceedngs how obtaned b 150.
partes to 152.
G see uppementa Matter.
G see uppementa Matter.
G T T M T
how ar repeated n suppementa b 23 1 4.
b o re or 102.
T
whether t causes abatement 6 .
P P T see Popsh ecusanc .
P T
omtted n orgna b see Part omtted.
to a suppementa b 27 1 5 221.
to a b o re or 106.
to an orgna b n the nature o a b o re or 131.
to a suppementa b n the nature o a b o re or 135.
to an orgna b n the nature o a suppementa b 152.
P T P T see ccounts.
P T M TT D
added b amendment 5.
suppementa b 1 .
ma brng hmse be ore the ourt 19.
P M T T T
ma be sometmes made durng an abatement 77.
P P T T T T M see Testmon .
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Original from
Digitized by
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
R.
PRO CONFESSO,
abatement after bill taken, 225.
PROCESS,
or 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, U4, 123.
PRIORITY,
in reviving a suit, see REVIVOR.
PETITION,
for leave to file a supplemental bill 10 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 bill of revivor, U8, 224.
POPISH RECUSANCY,
305 INDEX.
D . 305
P T T
or ea e to e a suppementa b n the nature o a b o re-
ew 44.
or rehearng 45.
or takng partnershp accounts 14.
b assgnee or a stop order 193.
P
to a b o re or 11 224.
P P
P T
n re ng a sut see e or.
P
e ect o abatement on 73.
o re or on 13 .
cannot be ssued durng an abatement 74
or appearance and answer to a suppementa b 3 .-
or answer when re ured to a b o re or 114 123.
P
abatement a ter b taken 225.
.
P
o re or on 141.
T
death o a 14 .
G
when aowed 44.
petton or 45.
bene t o sometmes obtaned b a part who has not oned n the
petton 56.
T
death o 170.

addtona pra ed b amendment 5.
suppementa b 14 15.
cannot be ared b suppementa b 22.
uness the rst ree has become mpossbe 21 .
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rr In I
DI itized b
REVIVOR,
definition of, 63.
nature of, 81.
partial, si.
optional to revive or commence a new suit, Sl, n.
for costs, see COSTS.
for further discovery. 84.
to supply an omission in a decree, S5.
what party may revive, 85.
no priority, 86.
whether defendant may move to dismiss in default of revivor,
see DISMISSALOFBILL.
but he may prevent a new suit until the costs of the abated suit
are paid, 93.
defendant reviving need not give notice, 95.
defendant may revive wherever he has an interest, 95.
mode of, 96.
when the interest devolves by operation of law, 96, 9S.
when by the act of the party, 96, 126.
by simple bill and order, 98.
bill of, see BILL OFREVIVOR.
and supplement, bill of, see BILL OFREVIVORANDSUPPLE-
MENT.
order for, see ORDER.
shewing cause against, U8.
by writ of scire facias, 100.
by supplemental suit and decree, 126.
where a sole plaintiff devises, 126.
original bill inthe nature of a bill of, 'see ORIGINAL BILL.
where a defendant devises, 131.
supplemental bill in the nature of a bill of, see SUPPLE-
MENTALBILL.
where a co-plaintiff devises, 136.
where the devise is after decree, 136.
effects of, 137.
on existing proceedings, 137.
a limited time allowed for any thing, 137.
order by consent, 137, n.
REVIEW, see DECREE, and SUPPLEMENTALMATTER.
REPLICATION,
INDEX. 306
306 D .
P T
to suppementa b 39.
to b o re or 123.
see Decree and uppementa Matter.

de nton o 63.
nature o 1.
parta 1.
optona to re e or commence a ne sut 1 n.
or costs see osts.
or urther dsco er 4.
to supp an omsson n a decree 5.
what part ma re e 5.
no prort 6.
wheter de endant ma mo e to dsmss n de aut o re or
see Dsmssa o .
but he ma pre ent a new sut unt the costs o the abated sut
are pad 93.
de endant re ng need not g e notce 9.t.
de endant ma re e where er he has an nterest 95.
mode o 96.
when the nterest de o es b operaton o aw 96 9 .
when b the act o the part 96 126.
b smpe b and order 9 .
b o see o e or.
and suppement b o see o e or and uppe-
ment.
order or see rder.
shewng cause aganst 11 .
b wrt o scre acas 100.
b suppementa sut and decree 126.
where a soe pant de ses 126.
orgna b n the nature o a b o see rgna .
where a de endant de ses 131.
suppementa b n the nature o a b o see uppe-
menta .
where a co-pant de ses 136.
where the de se s a ter decree 136.
e ects o 13 .
on e stng proceedngs 137.
a mted tme aowed or an thng 137.
order b consent 137 n.
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Original from
Drgiti zed by
SETTLEMEN T,
on wife and children, death of wife during reference to the Master
to approve of, 157.
SIGN ATUR E O F CO UN SEL,
SUBPillN A,
to appear and answer,
in supplemental suit, 36.
in revivor suit, 112.
to rejoin,
to hear judgment,
in original suit,
how affected by abatement, 73.
revivor, 141.
SCIR E F ACIAS, 100.
SEQUESTR ATIO N ,
revivor on, 139.
S .
R ISE O F A N EW IN TER EST, 63.
REVIVOR-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, 146.
307 IN DEX.
D . 307
n contnued.
e ects o
process 13 .
se uestraton 139.
rece ershp 141.
subpoenas to hear udgment 141.
n unctons 141.
de ence aread put n 142.
appea 142.
costs 143
proceedngs erroneous had a ter the abatement 144.
on urther proceedngs 145.
amendment 145.
nterrogatores 145.
decree c. 147.
the two suts coaesce nto one 115 14 .
T T 63.
.
100.
T T
re or on 139.
TT M T
on w e and chdren death o w e durng re erence to the Master
to appro e o 157.
G T
to suppementa b 26.
to b o re or 106.
P
to appear and answer
n suppementa sut 36.
n re or sut 112.
to re on
n re or sut 123.
to hear udgment
n orgna sut
how a ected b abatement 73.
re or 141.
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Original from
Digitized by
SUPPLEMENTAL BILL,
to remedy imperfections originally inherent, 5.
. inwhat stages it will lie, 7, 223.
leaveof the Court unnecessary, 13, 223.
for whatpurposesit maybefiled,seeSUPPLEMENTAL MATTER.
formof, 23.
what party may fileit, 26.
parties to, 27.
subpoena upon, 36.
defenceto, 37.
evidenceupon, 39.
hearing anddecree, 41.
inthe nature of abill of review, 44.
deposit on, 45, n.
leaveofthe Court, 46, 57.
filedafter petition for rehearing, 46.
formof, 58.
may bejoined withbills of revivor, 60.
parties to: 60.
subsequent proceedings on, 60.
See also DECREE, and SUPPLEMENTAL MATTER.
in thenature of abill of revivor, 132.
wherenecessary, 132.
howdifferent fromabill of revivor and supplement, 133.
formof, 133.
parties to, 135.
to bring forwardan assignee, 180.
onewill not supply adefect in two suits, 183.
formof, 184.
parties to, 185.
evidenceupon, 186.
decree, 190.
may befiledby a defendant after decree, 191.
to bring forwardanew-born infant, 198.
to state newevents not altering theparties, 210.
for whatpurposes it maybefiled, seeSUPPLEMENTAL MATTER.
not necessary in order to obtain ane exeat regno, 215.
formof, 221.
parties to, 221.
SUBP<ENA-continued.
to hear judgment,
INDEX. 308
30 D .
P contnued.
to hear udgment
n re or sut 125.
PP M T
to remed mper ectons orgna nherent 5.
n what stages t w e 7 223.
ea e o the ourt unnecessar 13 223.
or what purposes t ma be ed see uppementa Matter.
orm o 23.
what part ma e t 26.
partes to 27.
subpoena upon 36.
de ence to 37.
e dence upon 39.
hearng and decree 41.
n the nature o a b o re ew 44.
depost on 45 n.
ea e o the ourt 46 57.
ed a ter petton or rehearng 46.
orm o 5 .
ma be oned wth bs o re or 60.
partes to. 60.
subse uent proceedngs on 60.
ee aso Decree and uppementa Matter.
n the nature o a b o re or 132.
where necessar 132.
how d erent rom a b o re or and suppement 133.
orm o 133.
partes to 135.
to brng orward an assgnee 1 0.
one w not supp a de ect n two suts 1 3.
orm o 1 4.
partes to 1 5.
e dence upon 1 6.
decree 190.
ma be ed b a de endant a ter decree 191.
to brng orward a new-born n ant 19 .
to state new e ents not aterng the partes 210.
or what purposes t ma be ed see uppementa Matter.
not necessar n order to obtan a ne e eat regno 215.
orm o 221.
partes to 221.
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Original from
Di gitized by
TESTIMONY,
supplemental bill to perpetuate, 17.
TENANT IN COMMON,
death of, 107, 158.
TENANT IN TAIL,
death of, without issue, 159.
intermediate, born, 199.
TENANT FOR LiFE,
death of, 157.
T.
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 an erroneous statement, 9.
changing the 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, 2f3.
to obtain ane exeat regno, 215.
alteration of the subject matter, 216.
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.
309 INDEX.
D .
309
PP M T M TT
e stng at the ng o the orgna b .
must ha e been unknown at the ng o the orgna b .
to correct au erroneous statement 9.
changng te orgna ssue s proper an amendment 11 223.
supportng the orgna case 12.
to e tend the pra er or ree 14.
or dsco er 17.
or perpetuatng testmon 17.
to add partes 1 .
to make an n ant co-pant a de endant 20.
to g e urther drectons n ad o a decree 21.
must not seek to change the ree 22
brought to re erse a decree 47.
must be both ree ant and matera 47.
whether t ma change the ssue or not 4 .
must ha e been unknown be ore pubcaton 53.
dgence n seekng 53.
con esson a ter decree 54.
subse uent to the ng o the orgna b 210.
not good to rect a bad tte 210.
must be matera 212.
to the merts and not to the e dence 213.
to obtan awe e eat regno 215
ate-aton o the sub ect matter 21G.
ncrease o the sub ect matter 217.
to ar the ree pra ed 21 .
urther account o recepts and pro ts 219.
or o tthes 220.
not good or aterng a decree 220.
T T
death o 157.
T T MM
death o 107 15 .
T T T
death o wthout ssue 159.
ntermedate born 199.
T T M
suppementa b to perpetuate 17.
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On In I
I rtized b
'William (evens, Printer, Bell Yard, Temple Bar.
WIDOW, see FEME COVERTE.
"'IFE, see FEME COVERTE.
W.
TITHES,
subsequent to the filing of the original bill, account of, 220.
TITLE,
bad, shewn by original bill, not to be rectified by supplemental bill,
210.
TRUSTEES,
new, of a Charity, appointed pendente lite, 183.
INDEX. 310
310 D .
T T
subse uent to the ng o the orgna b account o 220.
T T
bad shewn b orgna b not to be rect ed b supdementa b
210.
T T
new o a hart apponted e r e /e te 1 3.
.
D see eme o erte.
see eme o erte.
M am te ens rrttr e a Tnpe r.
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Original from
Di g itized by
DANfELL'S CHANCERY PRACTICE.
In 2 vols., and Vol. III. Part 1. 8vo. price 4l. 4s. boards.
A Treatise on the Practice of the High Court of Chancery, with some Prac-
tical Observations on the Pleadings in that Court. By EDMUND ROBERT
DANIELL, F.R.S., Barrister-at-Law.
Also, in 8vo., price 58. boards.
Practical Observations on the New Orders for the Regulation of the Practice
and Proceedings of the Court of Chancery, issued on the 26th August, 1841,
with an Appendix containing the subsequent Orders. By EDMU)<D ROBERT
DANIELL, F.R.S., Barrister-at-Law.
The completion of the work is in the press, and will shortly be publishe
MADDOCK'S EQUITY.
Two vols. royal 8vo. price 3Z. 138. 6d. boards.
A Treatise on the Principles and Practice of the Court of Chancery, under
the following Heads: 1. Common-Law J urisdiction of the Chancellor. 2. Equity
J urisdiction of the Chancellor. 3. Statutory J urisdiction of the Chancellor:
and Delegated J urisdiction of the Chancellor. The Third. Edition, with very
great Additions. By HEXRY MADDOCK,E q., of Lincoln'S Inn, Barrister-at,
Law.
{
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