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6. Supplemental Pleadings.

Special replication not allowed, § 1684.- Supplemental bill, for what used, §§ 1685-86.- Motion to dismiss for laches in prosecution, § 1687.

§ 1684. Special replications setting up new matter are no longer allowed. Mason v. Railroad Co., § 1688-91.

§ 1685. New matter arising since the commencement of the suit must be set up, if at all, in a supplemental bill, not in an amendment to the original bill. Ibid.

§ 1686. A supplemental bill cannot be used to show plaintiff's right to sue, acquired since the commencement of the suit, when in the original bill he had no right at all. Ibid.

§ 1687. A motion to dismiss plaintiff's bill for laches in prosecution will be denied if plaintiff has used reasonable diligence. Ibid.

[NOTES.-See §§ 1692-1709.]

MASON v. HARTFORD, PROVIDENCE & FISHKILL RAILROAD COMPANY

(Circuit Court for Massachusetts: 10 Federal Reporter, 334-338. 1882.)

Opinion by COLT, J.

STATEMENT OF FACTS.- In this cause a bill of revivor was filed August 14, 1880, by the alleged administrators and trustees of Earl P. Mason, the original complainant. To this bill one of the defendants, William T. Hart, put in a plea setting up that it did not appear by said bill of revivor that the plaintiffs named therein had ever been appointed administrators of said estate by any court of competent jurisdiction in the state of Massachusetts, and that therefore the plaintiffs had no right to file said bill, that the court had no jurisdiction thereof, and praying that the bill might be dismissed. The New York & New England Railroad Company, another defendant, demurred to the bill upon this as well as other grounds. To this plea and demurrer the complainants in the bill of revivor filed separate replications, setting out, among other things, that since the filing of the plea and demurrer they had been apppointed administrators of the estate of said Earl P. Mason in the state of Massachusetts.

The defendant William T. Hart now moves, first, that the replication to his plea be stricken from the files because it is special, and sets up new matter and matter accruing after the filing of the bill of revivor; and second, that the bill of revivor be dismissed, because the complainants have not taken issue on the plea nor set the same down to be argued, though the same has been filed more than a year.

1688. Special replications setting up new matter are no longer allowed. The New York & New England Railroad Company also move that the replication to the demurrer be stricken from the files, and that the bill of revivor be dismissed, because the complainants have not set the demurrer down for argument, though filed over one year before.

It is apparent that the replications here filed are special, setting up new matter and matter accruing since the filing of the bill of revivor; therefore they are irregular. By equity rule 45 of the United States court, "no special replication to any answer shall be filed."

In Vattier v. Hinde, 7 Pet., 252, 274, the supreme court declare that no special replication can be filed except by leave of the court; holding it to be contrary to the rules of a court of chancery for the plaintiff to set up new matter necessary to his case by way of replication; that omissions in a bill cannot be supplied by averments in the replication; and that a plaintiff cannot

be allowed to make out a new case in his replication. This is equally true whether it is an answer or plea that is replied to. See Daniell, Ch. Pl. & Pr. (4th ed.), 828, n. 1. "Matters in avoidance of a plea, which have arisen since the suit began, are properly set up by a supplemental bill, not by a special replication," citing Chouteau v. Rice, 1 Minn., 106. In Mitford & Tyler, Pl. & Pr. in Eq., 412, 413, we find, "special replications, with all their consequences, are now out of use, and the plaintiff is to be relieved according to the form of the bill, whatever new matters have been introduced by the defendant's plea or answer." The replications to the plea and demurrer cannot

be sustained.

§ 1689. Motion to dismiss plaintiff's bill for want of prosecution denied under the circumstances.

The second motion of the defendants, that the bill of revivor be dismissed, is based upon equity rule 38, which provides that if the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule day when the same is filed, or on the next succeeding rule day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose.

It appears in this case that the bill of revivor was filed August 14, 1880; the plea and demurrer September 6, 1880; the replications July 30, 1881; and that soon after (August 4) the plaintiffs' counsel asked the court to fix a day for the argument. It further appears that after the filing of the plea and demurrer, September 6, 1880, a stipulation was entered into by counsel upon both sides extending the time for hearing to the November rule day, 1880, meantime the complainants to be allowed to file proper pleadings in reply to said plea and demurrer. By further written agreements between counsel the postponement provided for by this stipulation was extended monthly until February, Then we find a further stipulation as follows:

1881.

"It is hereby agreed that no movement on either side shall be made in this cause until May, 1881, without prejudice to complainants' right to file evidence of appointment as administrators in Boston."

By the affidavit of Mr. Payne, one of complainants' counsel, it appears that in October or November, 1880, Mr. Lothrop, one of defendants' counsel, stated in effect that, while he would sign the stipulation, the complainants' counsel might take their own time about bringing the case to a hearing.

In the light of all these circumstances it is fair to presume that complainants' counsel understood that any rigid enforcement of the rule now invoked had been waived, impliedly by acts and conduct, if not in express terms; and we are of this opinion.

Considering the repeated postponements which had taken place for the mutual accommodation of both sides, so far as appears, the language used by defendants' counsel as to time of hearing; and bearing also in mind that the replications were filed within three months after May, 1881; and that within a week thereafter the plaintiffs moved the court to set a time for hearing,it would, we think, be inequitable to allow the defendants' motion to dismiss to prevail. Indirectly, as bearing on this question of laches, reference is made to the fact that the original bill in this case was brought in 1871, the answer filed in 1873, the replication not put in until 1875; also that the original complainant died in 1876, and that the bill of revivor was not brought until 1880. In answer to this charge the complainants say that the delay has been owing

to the pendency of another suit in the state court of Rhode Island, the determination of which might affect the prosecution of this suit, and that consequently the delay was acquiesced in by both sides. They further state that within a short time after the final decision by the Rhode Island state court the bill of revivor was filed, and that they are now anxious to speed the cause. Under these circumstances, and in the absence of any motion on the part of the defendants to speed the cause, we do not see how the charge of laches can be seriously pressed; at least so far as the present motion is concerned.

§ 1690. New matter arising since the commencement of the suit must be set up in a supplemental bill.

The complainants, in the event of their replications being held to be bad, ask leave to withdraw them and to amend their bill of revivor by inserting, among other things, the fact that they were, on the 25th day of July, 1881, by the court of probate for the district of Suffolk, in the state of Massachusetts, duly appointed administrators of the estate of Earl P. Mason. The defendants object upon the ground that this is new matter, accruing since the filing of the bill, which cannot be set up by amendment, but only by supplemental bill. It is true that events which have happened since the filing of a bill cannot be introduced by way of amendment, and that as a general rule they may be set out by supplemental bill. Equity Rule 57, U. S. Court.

In Daniell, Ch. Pl. & Pr. (4th ed.), 1515, note 1, we find "an original bill cannot be amended by incorporating anything therein which arose subsequently to the commencement of the suit. This should be stated in a supplemental bill." And again, on page 828, note 1 (already cited), it is laid down that matters in avoidance of a plea, which have arisen since the suit began, are properly set out by a supplemental bill. Mitford & Tyler, Pl. & Pr. in Eq., 159; Story, Eq. Pl., § 880.

§ 1691. A supplemental bill cannot be used to show plaintiff's right to sue, acquired since the commencement of the suit.

But in this case it is difficult to see how a supplemental bill can be brought. The bill of revivor has not become defective from any event happening after it was filed. But originally, when it was brought, it was wholly defective; for the fact that the plaintiffs were appointed administrators by the proper court in Massachusetts was necessary to its maintenance. Mellus v. Thompson, 1 Clif., 125. And yet this event happened, as the record discloses, nearly a year after it was brought. If the bill is wholly defective, and there is no ground for proceeding upon it, it cannot be sustained by filing a supplemental bill founded upon matters which have subsequently taken place. Candler v. Pettit, 1 Paige, Ch., 168.

In Pinch v. Anthony, 10 Allen, 471, 477, the court observe: "We have found no authority that goes so far as to authorize a party who has no cause of action at the time of filing his original bill to file a supplemental bill in order to maintain his suit upon a cause of action that accrued after the original bill was filed, even though it arose out of the same transaction that was the subject of the original bill." Daniell, Ch. Pl. & Pr. (4th ed.), 1515, note.

We are of the opinion that this new matter cannot be incorporated in the bill of revivor by amendment, nor introduced in a supplemental bill, and that the proper course for the complainants to pursue is to bring a new bill of revivor.

(1) The defendants' motion to strike from the files complainants' replica

tions to plea and demurrer is granted. (2) The defendants' motion to dismiss bill of revivor is denied. (3) The complainants' motion to amend bill of revivor is denied.

§ 1692. Office and scope of. A supplemental bill containing matters having no necessary connection with the original bill will be dismissed. Minnesota Co. v. St. Paul Co., 6 Wall., 742.

§ 1693. A party cannot introduce a material fact which has occurred since the filing of his original bill in an amended bill; but must file a supplemental bill. Copen v. Flesher, 1 Bond, 440.

§ 1694. Discovery as to matters not stated in original bill.— A supplemental bill which seeks discovery from the defendant as to particulars not stated in the original bill will be admitted though it contains new matters which should properly be introduced by way of amendment to the original bill. Parkhurst v. Kinsman, 2 Blatch., 72.

§ 1695. Ancillary bill not necessarily supplemental.- A bill in equity ancillary to another suit in the federal court is not necessarily a supplemental bill in a sense to bring it under the rules of pleading applicable to supplemental bills. Minnesota Co. v. St. Paul Co., 2 Wall., 609.

§ 1696. Sufficiency of petition for.- Under rule 57 in equity, a petition for leave to file a supplemental bill is sufficient if it inform the court and the defendant of the ground on which relief is sought. It may state matters upon information and belief, and need not contain all the averments intended to be set up. Parkhurst v. Kinsman, 2 Blatch., 72.

§ 1697. Matters proper for supplemental bill and for amendment. It is a general rule in equity pleading that matters existing at the time the bill was filed, but omitted in the original bill, are to be introduced by amendment; and that matters pertinent to the case occurring after the bill is filed are to be introduced by supplemental bill. Sometimes, however, as in the case of a suit brought by an administrator appointed in one state, and suing in another before letters of administration have been taken out in such other, a right acquired subsequently to the bringing of the suit may be brought in by amendment to the original bill. Swatzel v. Arnold, 1 Woolw., 383.

§ 1698. Suit on re-issued patent surrendered pending litigation brought by.-If a patent is surrendered and re-issued pending litigation, suit on the re-issued patent cannot be brought by supplemental bill, because surrender extinguishes the old patent. New suit must be brought. But if remedy is sought by supplemental bill, and no objection is made by respondent, but the suit is regularly tried and decree entered in the court below, the irregularity will be held as waived. Reedy v. Scott, 23 Wall., 352.

§ 1699. agreement to arbitrate as plea to.—To a suit on a re-issued patent, irregularly brought by supplemental bill instead of by a new bill, an agreement to arbitrate, made during the pendency of the original bill and before the supplemental, may properly be pleaded to the supplemental as it might have been to the original, provided the identity of the invention covered by the surrendered patent and the re-issued is plain. Ibid.

§ 1700. Bill for dissolution on ground of fraud Supplemental bill to plea of settlement.- Bill for dissolution of copartnership on ground of fraud, etc., settlement pleaded and allowed; a supplemental bill then filed, impeaching the settlement for fraud, etc.; demurrer. Held, proper to set up the matter of avoidance by supplemental bill, as special replications are now disused, and amendment may not be used to bring in matters which have arisen subsequent to the bill. Chouteau v. Rice,* 1 Minn., 106.

§ 1701. Assignee of pending action cannot continue by. When plaintiff, suing in his own right. assigns his whole interest to another, the assignee cannot continue the proceedings by a supplemental bill, but must bring an original bill in the nature of a supplemental bill. Tappan v. Smith, 5 Biss., 73.

§ 1702. Release brought in collaterally by agreed statement of facts cannot be considered Supplemental bill necessary.- A bill in equity alleged that plaintiff bought certain property of defendants at auction, and that the price was greatly enhanced by bybidders. Upon the argument an agreed statement of facts was used, from which it appeared that plaintiff had given the auctioneer a release from all liability in the matter, which release, by the agreement, might be referred to and used in the case, and the whole agreement was to be made a part of the case and to be filed therein. Argument of counsel was directed to the question whether this release to the auctioneer released also the defendant, his principal. But it was held that, as the release was not set up in the pleading, it could not be considered as in issue, although thus brought before the court in argument. In order that the question might be brought properly before the court, it would be necessary for plaintiff to file a sup

plemental bill, setting up the release with suitable averments, so that defendants may fully answer. Veazie v. Williams,* 3 Story, 54.

§ 1703. To compel discovery of assets by defendant after appointment of receiver.When a receiver appointed under a bill in equity has reduced to possession the assets of defendant, a supplemental bill could not be used to compel a discovery by defendant of his assets. Dunham v. Railroad Co., 1 Bond, 492.

$ 1704. But if it does not appear that the receiver so appointed has taken any steps to that purpose, nor that he has accepted the trust, a supplemental bill may be used for such discovery. Ibid.

§ 1705. Bill for specific performance against firm creditor in suit to wind up partnership. When plaintiff, after bringing a bill to wind up a copartnership, brings a second bill against a creditor of the copartnership to enforce specific performance of a contract with the copartnership, such second bill is an original and not a supplemental bill. Myers v. Dorr, 13 Blatch., 22.

§ 1706. New matter discovered after answer filed. A supplemental answer is the proper course when a new matter of defense is discovered after filing the answer, but which existed before. The motion to file is addressed to the discretion of the court, and if the additional matter was known before the answer was filed the motion will be refused, especially if the addition is calculated to embarrass the proceedings, and is not necessary to the defense. Suydam v. Truesdale,* 6 McL., 459.

§ 1707. When a motion was made to file a supplemental answer, and was accompanied by an affidavit that the new matter had been discovered since the answer was filed, but it appeared in a cross-bill already filed by defendant that the matter was known at the time the answer was filed, the motion was refused, especially as this did not materially interfere with the presentation of the defense. Ibid.

§ 1708. A supplemental answer is in the nature of a plea puis darrein continuance under the old practice, and therefore must be filed at the first opportunity and before the next continuance. It can be filed later only by leave of court upon showing satisfactory excuse. French v. Edwards, 4 Saw., 125.

§ 1709. Supplemental answer setting up former judgment.— If, after a refusal by a judge of a federal court to allow a supplemental answer to be filed setting up a former judgment on the ground that an appeal from such judgment is still pending, the appeal is decided, it is matter of discretion for another judge of the same federal court to allow the supplemental answer to be filed. Robinson v. Satterlee, 3 Saw., 134.

III. PLEADING IN ADMIRALTY.

1. In General.

§ 1710. The rules of pleading in admiralty are not as rigid as at common law; there are no technical rules of variance or departure; and the court is not precluded from granting the relief appropriate to the case appearing on the record, and prayed for in the libel, because the entire case is not distinctly stated in the libel. West v. Steamer Uncle Sam, McAl., 505.

§ 1711. The rules of pleading in admiralty do not require all the technical precision which is required at common law, but they require that the cause of action should be clearly set forth, so that a plain and direct issue may be made upon the charge, and the evidence must be confined to the matter put in issue. Jenks v. Lewis, 1 Ware, 51.

§ 1712.

unity of causes of action.- The strict rules of the common law as to unity of causes of action or community of interest or responsibility of parties to actions are not observed in the maritime courts. The Sloop Merchant, Abb. Adm., 21.

§ 1713.

variance or departure. There are no technical rules of variance or departure in pleading in admiralty. Dupont de Nemours v. Vance, 19 How., 162.

§ 1714. In admiralty the proofs and allegations must coincide. - Proofs to facts not put in contestation by the pleadings, and allegations of facts not established by proofs, will both be rejected. The Brig Sarah Ann, 2 Sumn., 206.

§ 1715.

proof alone insufficient. It is a cardinal rule in equity proceedings that no decree can be rendered upon proofs alone if the subject-matter of those proofs is not alleged in the pleadings. Davis v. Leslie, Abb. Adm., 123.

§ 1716. Evidence confined to point in issue.

Under admiralty rule 23 the evidence must be confined strictly to points put in issue by the allegations of the libel and denial of the answer. The Rocket, 1 Biss., 354.

§ 1717. Collision — Variance.— In a collision case the libel did not aver (1) that the steamer changed her course, but averred (2) that the schooner kept hers—and thus brought on the

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