and the difference between the two is practically one of mere nomenclature."

2

§ 184. Bills of revivor and supplement.- A bill of revivor and supplement is a bill which revives a suit after an abatement, and at the same time supplies a defect which has arisen. in it since its institution. Thus, where by the death of a defendant new rights accrue to the plaintiffs, a bill of revivor and supplement is necessary to state those rights; and where, in a suit to restrain the infringement of a patent, the complainant assigned his interest and died, it was held improper for the assignee to revive the suit by a bill of revivor, the court saying that a "supplemental bill," but evidently intending thereby a bill of revivor and supplement, must be filed. It has been held in England that by such a bill a defect apparent upon the face of the original bill cannot be cured. A bill of revivor and supplement is merely a compound of a bill of revivor and a supplemental bill, and in its separate parts must be framed and proceed in the same manner. It seems that it may be held good as to the revivor, and bad as to the supplemental matter. All parties to the original bill should be made parties to a bill of revivor and supplement, although a revivor is sought against but one defendant. A bill may be sustained upon demurrer where its allegations are sufficient to support equitable relief, whether properly or not styled a bill of revivor and supplement.8

§ 185. Supplemental bills in the nature of bills of revivor. A supplemental bill in the nature of a bill of revivor is a bill filed to cure an abatement when the person by or against whom the suit is to be continued, although claiming under the individual whose death caused the abatement, is not the representative whom the law allows to be recognized, but is one whose

5 Grew v. Breen, 12 Met. (Mass.) 369. § 184. Mitford's Pl., ch. 1, § 2; Story's Eq. Pl., §§ 387, 627; Daniell's Ch. Pr. (2d Am. ed.) 1722, 1723.

Eq. Pl., §§ 387, 627; Daniell's Ch. Pr. 1722, 1723; Pendleton v. Fay, 3 Paige (N. Y.), 204.

6

Randolph v. Dickerson, 5 Paige 2 Westcott v. Cady, 5 J. Ch. (N. Y.) (N. Y.), 517. But see Bampton v. 334, 342.

Birchall, 5 Beav. 330; s. c. on appeal,

3 Metal S. Co. v. Crandall, 18 Off. 1 Phil. 568. Gaz. 1531.

4 Bampton v. Birchall, 5 Beav. 330;

S. C. on appeal, 1 Phil. 568.

7 Lake v. Austwick, 4 Jur. 314.

8 Shainwald v. Lewis, 69 Fed. R.

487. But see Campbell v. City of

5 Mitford's Pl., ch. 1, § 3; Story's New York, 35 Fed. R. 14.

title could not have been litigated in the English Court of Chancery, but might have been disputed before another tribunal.' It has also been held that where during the pendency of a suit a trustee died, and the court appointed a successor to him, the new trustee could only be brought in by a supplemental bill in the nature of a bill of revivor. Upon the death of a trustee or assignee in bankruptcy or insolvency his successor is brought in by a bill of this character. Where one of the complainants died leaving a will, which was proved in a foreign country, a motion of his executor and testamentary trustee to revive the suit upon a bill in the nature of a bill of revivor was denied with leave to him and the decedent's devisees to file a supplemental bill. Such a bill, however, although designated as being in the nature of a bill of revivor, is neither more nor less than a supplemental bill."

§ 186. What renders a suit defective. If, after the institution of a suit in equity, a person who is a necessary party thereto comes into being, or any other event occurs, which, without abating the suit, occasions such an alteration in the interest of any of the original parties, or gives any person not a party such an interest therein, as makes it necessary that the change of interest shall be brought to the attention of the court, and the person not already a party brought before it, the suit is said to become defective. The circumstances causing the change of interest must then be alleged, and the new party brought in by a supplemental bill, or a bill in the nature of a supplemental bill. An assignment, whether voluntary' or by operation of law,' during the pendency of a suit, of the whole or a part of a party's interest therein, does not make the suit defective, nor affect the rights of the other parties, since the assignee takes the same rights and is subject to the same obligations as his assignor, and is equally bound or ben

185. 1 Daniell's Ch. Pr. (2d Am. ed.) 1721.

2 Greenleaf v. Queen, 1 Pet. 138, 148 3 Daniell's Ch. Pr. (2d Am. ed.) 1721. 4 Currell v. Villars, 72 Fed. R. 330. 5 Daniell's Ch. Pr. (2d Am. ed.) 1721. § 186. Jones v. Jones, 3 Atk. 217; Mitford's Pl., ch. 1. § 3; Daniell's Ch. Pr. (2d Am. ed.) 1663.

2 Jones v. Jones, 3 Atk. 217; Mitford's Pl., ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1663.

3 Ex parte Railroad Co., 95 U. S. 221; Hazelton T. B. Co. v. Citizens' Street Ry. Co., 72 Fed. R. 325.

4 Hewett v. Norton, 1 Woods, 68; Eyster v. Gaff, 91 U. S. 521.

efited by the decree. The assignee need not, therefore, be made a party, unless the assignment disables the assignor from performing the decree of the court, when he should be brought before it; but he may at any time be brought in at his own request. It has been said that a person entitled to the benefit of a decree by his subsequent acquisition of an interest in the subject-matter in controversy is not entitled to invoke the aid of the court or take further action until he has made himself a party by a supplemental bill or other appropriate pleading, and has thus brought in the representatives or successors in interest of the original parties, plaintiff or defendant. In a case in admiralty, it was held that a suit brought in the name of Napoleon III., on account of an injury to property,— a French ship held by him in his sovereign capacity,— did not abate by his deposition and the succession of the French Republic to the French Empire, and that the name of the plaintiff could at any time be changed by order.9

§ 187. Supplemental bills. A supplemental bill, according to Lord Redesdale, is merely an addition to the original bill.1 At first supplemental bills were filed, not only for the purposes mentioned in the last section, but also to supply such defects as might have been cured by amendment after the time to perfect a bill by amendment had expired. Now, however, that amendments may be allowed at any stage of a suit,' they are no longer needed for that purpose; and as the fact that the matter pleaded in a supplemental bill may be inserted in the original bill by amendment, was also a good ground of demurrer, it is doubtful whether they can be any longer so used.3

5 Eyster v. Gaff, 91 U. S. 521; Ex parte Railroad Co., 95 U. S. 221.

6 Daniell's Ch. Pr. (2d Am. ed.) 1664. 7 Foster v. Deacon, Mad. & Geld. 59; Eyster v. Gaff, 91 U. S. 521; Ex parte Railroad Co., 95 U. S. 221, 226; infra, § 190.

2 Mitford's Pl., ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1653-1663; Story's Eq. Pl., § 334; Jenkins v. Eldredge, 3 Story, 299; Mosgrove v. Kountze, 14 Fed. R. 315.

3 Rule 29.

4 Mitford's Pl., ch. 2, § 2, part 1;

8 Secor v. Singleton, 41 Fed. R. 725, Daniell's Ch. Pr. (2d Am. ed.) 1681. 726; infra, § 190.

9 The Sapphire, 11 Wall. 164. See Allen v. The Mayor, 7 Fed. R. 483; S. C., 18 Blatchf. 239; Hemingway v. Stansell, 106 U. S. 399, 402.

§ 187. Mitford's Pl., ch. 1, § 2.

5 Tubman v. Wason Mfg. Co., 44 Fed. R. 429; Electrical A. Co. v. Brush El. Co., 44 Fed. R. 602. See, however, Davies v. Williams, 1 Sim. 5; Nevada Nickel Syndicate v. National Nickel Co., 86 Fed. R. 486.

When an event happens subsequently to the filing of an original bill which gives a new interest in the matter in dispute to any person, whether or not already a party, without depriving all of the original plaintiffs suing in their own right of their interest, the defect arising from this event may be supplied by a supplemental bill. A remainder-man may also, in this same manner, be made a party to a suit brought by or against a tenant in tail upon the determination of the latter's estate, and the acquisition by the former of the present interest to the property in litigation. A supplemental bill which brings in a new party may be original as to him, but supplemental as to the rest. If, pending a suit, a tenant in tail of an estate thereby affected by it is born; or if, pending a suit against a husband and wife concerning the latter's estate, the man dies, and the wife thus acquires a new interest; 10 or if one of two or more plaintiffs suing in their own right is entirely deprived of his interest, by any other event than an assignment of it; " or if the interest of a sole plaintiff suing in a representative capacity entirely determines by death or otherwise, and some other person becomes entitled to the same property under the same title, the defect in the suit thereby occasioned must be cured by a supplemental bill. So, if pending a suit a party becomes a lunatic, or if pending a suit by or against a lunatic and his committee a new committee is appointed, the committee should

12

9

6 Hobson v. McArthur, 16 Pet. 182; Daniell's Ch. Pr. 1663-1675; Story's Eq. Pl., §§ 336-343; Mitford's Pl., ch. 1, § 3. It has been held that supplemental bills may be filed to plead the removal, subsequent to the original bill, of liens which were obstacles to part of the plaintiff's claim (Sheffield & B. L. & Ry. Co. v. Newman (C. C. A.), 77 Fed. R. 787), and to plead an election to declare the principal of a mortgage due, made subsequent to the original bill to foreclose for a default in interest (Seattle, L. S. & G. Ry. Co. v. Union Tr. Co., 79 Fed. R. 179); or to plead subsequent defaults in interest. N. Y. Security & Tr. Co. v. Lincoln Stone Ry. Co., 74 Fed. R. 67. See also S. C., 77 Fed. R. 525. A bill by a surviving partner to settle

the partnership affairs is a separate and distinct proceeding from a suit subsequently brought by the same party to subject real estate of the deceased partner to the payment of debts held by his heirs, and the statute of limitations cannot be avoided by styling the second bill a supplemental bill. White v. Miller, 158 U. S. 128.

7 Lloyd v. Johnes, 9 Ves. 37; Daniell's Ch. Pr. (2d Am. ed.) 1668-1672. 8 Mitford's Pl., ch. 1, § 3.

9 Mitford's Pl., ch. 1, § 3. 10 Daniell's Ch. Pr. (2d Am. ed.) 1663. 11 Mitford's Pl., ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1664.

12 Mitford's Pl., ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1665; Marriott v. Tarpley, 9 Sim. 279.

16

13

be brought in by a supplemental bill. A supplemental bill may be filed after a decree in aid of the same; as, it has been held, by a purchaser at a foreclosure sale to enjoin an attack upon his title by proceedings in a State court after suit by privies to the original suit, such as stockholders or creditors," and to enjoin the taking possession of property to which the complainant is entitled under the decree; 15 but the successor in office of a cabinet officer cannot be substituted for him in a suit for an injunction and for a decree directing the issue of a patent. According to Lord Redesdale, upon the death of one suing in behalf of himself and others in the same position with him, if his representative do not choose to file a bill of revivor, any one of the class on behalf of whom he sued may revive;" but it seems that the more proper course would be for the one wishing to continue the suit to do so by means of a supplemental bill, which he can only obtain leave to file upon notice to the representatives of the deceased plaintiff, as well as to the defendants.18 Where, however, a suit brought by one in a representative capacity becomes defective by his death, and another acquires the right to continue it under a different title,— as upon the death of an executor or administrator succeeded by an administrator de bonis non, according to Lord Redesdale and Daniell, the latter may continue by a bill of revivor,19 according to Judge Story, only by a bill in the nature of revivor; 20 in no case by a supplemental bill. It has been held that in a case where the defendant is entitled to affirmative relief in his answer without a cross-bill, as a suit under section 4918 of the Revised Statutes, the complainant may plead in a supplemental bill any matter in defense to such a claim for affirmative relief

13 Mitford's Pl., ch. 1, § 3; Daniell's brought into the original suit by supCh. Pr. (2d Am. ed.) 1664. plemental bill. Dadirrion v. Gullian, 80 Fed. R. 986.

14 Central Tr. Co. v. Western N. C. R. Co., 89 Fed. R. 24. But see Keokuk & W. R. Co. v. Scotland County. 152 U. S. 318.

15 Root v. Woolworth, 150 U. S. 401. 16 Warner Valley Stone Co. v. Smith, 165 U. S. 28. Assignees of defendants en joined from using a trademark, who use the mark, but do not base their claim to use it on any rights supposed to be derived from the original defendants, cannot be

17 Mitford's Pl., ch. 1, § 3.

18 Houlditch v. Marquis Donnegall, 1 S. & S. 491; Dixon v. Wyatt, 4 Madd. 392; Daniell's Ch. Pr. (2d Am. ed.) 1671, 1672; Story's Eq. Pl., § 265.

19 Mitford's Pl., ch. 2, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1665; Owen v. Curzon, 2 Vern. 237; Huggins v. York Buildings Co., 2 Eq. Abr. 3, pl. 14. 20 Story's Eq. Pl., § 382, n. 1.