that he might have pleaded by supplemental answer to a crossbill, had one been filed." A supplemental bill must not be inconsistent with the original bill. Thus, where the original bill stated that the defendants claimed to be a corporation, but were not incorporated, it was held improper to file a supplemental bill claiming relief upon the ground that the defendants were a corporation." Where the original bill against a corporation prayed an injunction and, as incidental relief, a receiver, and the defendant was dissolved by proceedings in a State court, after the issue of an inquisition, but before the appointment of a receiver, a supplemental bill seeking to continue the injunction against the liquidators was held improper.23 A defective original cannot be cured by new matter subsequently arising, set forth in a supplemental bill, such as the entry of judgment in favor of the plaintiff subsequent to his filing a creditor's bill. The only exceptions to this rule are the probate of a will, or obtaining letters of administration by a party who has sued as executor or administrator.25

§ 188. Parties and frame of a supplemental bill. As a general rule, all parties to the original suit must be made such to a supplemental bill filed to supply a defect in it,1 unless such a bill be filed to bring in a mere formal defendant, or to allege matter which cannot possibly affect a decree against more than one defendant, when the others need not be made parties to it." An objection for want of parties must, however, be made by demurrer, plea, answer, or when the motion for leave to file the bill is argued. It will be too late to make it at the hearing. If the court had jurisdiction of the original bill it will take jurisdiction of the supplemental bill, no matter what may be the citizenship of the new parties; provided at least that they have a right to sue and be sued in a Federal court. A

21 Electrical A. Co. v. Brush El. Co., 44 Fed. R. 602, 607; supra, §§ 154, 171. 22 Maynard v. Green, 30 Fed. R. 643. 23 Lang v. Louisiana Canning Co., 56 Fed. R. 675.

24 Putney v. Whitmore, 66 Fed. R. 885; Neubert v. Massman, 37 Fla. 91, 19 S. R. 625; Heffron v. Knickerbocker, 57 Ill. App. 339; N. Y. Security & Tr. Co. v. Lincoln Street Ry. Co., 74 Fed. R. 67. But see s. C., 77 Fed. R. 525. 25 Supra, § 164.

§ 188. Daniell's Ch. Pr. (2d Am. ed.) 1678; Jones v. Jones, 3 Atk. 217; Dyson v. Morris, 1 Hare, 413; Jones v. Howells, 2 Hare, 342.

2 Greenwood v. Atkinson, 5 Sim. 419: Dyson v. Morris, 1 Hare, 413; Wilkinson v. Fowkes, 9 Hare, 193; Story's Eq. Pl., § 343.

3 Jones v. Jones, 3 Atk. 217.

4 Minnesota Co. v. St. Paul Co., 2 Wall. 609. See § 21.

5 See Adams Express Co. v. Denver

6

"supplemental bill must state the original bill, and the proceedings thereon, and if the supplemental bill is occasioned by an event subsequent to the original bill, it must state that event, and the consequent alteration with respect to the parties." The equity rules provide that "it shall not be necessary in any supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case require it." This, however, although copied from an English Chancery order, is merely a reaffirmance of the pre-existing practice. If the bill brings in no new party, there is never any need of its containing any of the statements in the original pleadings.10 When, however, it brings in a new party, as it is in fact original as to him, it must state enough of the former proceedings to show an equity against him." This need not be averred positively; but it will be sufficient to state that such matters were alleged in the former bill or answer,12 and only so much of the original pleadings need be averred as suffice to show an equity against the new party. The prayer of a supplemental bill is adapted to the object for which it is exhibited. It formerly always concluded with a prayer for process in the usual form.14 Whether this is now necessary when no new defendants are brought in may be doubted.15 It should be signed by counsel, and in other respects conform to the form of an original bill.16 A supplemental bill may be filed at any time during the progress of a suit, as well after as before a decree," and even during the pendency of an appeal.18 It

13

81; Daniell's Ch. Pr. (2d Am. ed.) 1676, 1677.

14 Daniell's Ch. Pr. 1680.

15 See Shaw v. Bill, 95 U. S. 10. 16 Daniell's Ch. Pr. (2d Am. ed.) 1680. 17 Root v. Woodworth, 150 U. S. $401; Central Tr. Co. v. Western N. C.

9 Daniell's Ch. Pr. (2d Am. ed.) 1675- R. Co., 89 Fed. R. 24; Daniell's Ch. Pr. 1678.

10 Daniell's Ch. Pr. (2d Am. ed.) 1675. 11 Baldwin v. Mackown, 3 Atk. 817; Daniell's Ch. Pr. (2d Am. ed.) 1675, 1676.

12 Lloyd v. Jones, 9 Ves. 37; Daniell's Ch. Pr. (2d Am. ed.) 1676.

13 Vigers v. Lord Audley, 9 Sim. 72; Attorney-General v. Foster, 2 Hare,

(2d Am. ed.) 1659, 1660; Story's Eq. Pl., §§ 333, 338a; 2 Barbour's Ch. Pr. 167; O'Hara v. Shepherd, 3 Md. Ch. Dec. 306; Jenkins v. Eldredge, 3 Story, 299; Woodward v. Woodward, 1 Dick. 33; Dormer v. Fortesque, 3 Atk. 124; Secor v. Singleton, 41 Fed. R. 725.

18 Woodward v. Woodward, 1 Dick. 33.

seems, however, that if the matters which make it necessary or advisable were known to the party filing it before the entry of the decree, afterwards it will be too late; 19 though such an objection must be taken before the hearing upon the supplemental bill.20

1

§ 189. Proceedings upon supplemental bills.-"Whenever any suit in equity shall become defective from any event happening after the filing of the bill (as, for example, by change of interest in the parties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule-day, upon proper cause shown and due notice to the other party. And if leave is granted to file such a supplemental bill, the defendant shall demur, plead, or answer thereto, on the next succeeding ruleday after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court." The petition for leave to file such a bill need not state the averments which are intended to be inserted therein; but must state sufficient to advise the opposite parties and the court of the ground upon which the relief is sought. It has been held that upon the return of the order to show cause an objection which is a proper ground for a demurrer cannot be raised. The objection that a supplemental bill was filed without leave is not a ground of demurrer, but only for a motion to dismiss which rests in the discretion of the court. A motion will not lie to take a supplemental bill off the file for irregu larity upon the ground that it does not state supplemental matter. The proper course in such a case is to demur, or to object to the order allowing it to be filed. Such a motion might, however, be granted if a bill filed should be different from that which the order allowed. A supplemental bill filed without leave may by a subsequent order be allowed to remain on file."

19 Pendleton v. Fay, 3 Paige (N. Y.), 204; Story's Eq. Pl., § 338a.

20 Fulton Bank v. N. Y. & S. C. Co.,

4 Paige (N. Y.), 127.

189. Equity Rule 57.

2 Parkhurst v. Kinsman, 2 Blatchf. C. C. 72.

3 Oregon & Trans. Co. v. N. Pac. Ry. Co., 32 Fed. R. 428.

4 Henry v. Travelers' Ins. Co., 45 Fed. R. 299, 303.

5 Bowyer v. Bright, 13 Price, 316; Daniell's Ch. Pr. (2d Am. ed.) 1682. 6 Ibid.

7 Mackintosh v. Flint & P. M. R. Co., 34 Fed. R. 582.

No subpoena need be issued upon such a bill unless new defendants are to be brought in; and then they only need be served with process. Such a subpoena is in the same form as one issued upon the filing of an original bill, except that it specifies the nature of the bill upon which it is issued. A demurrer to a supplemental bill is in general subject to the same rules, except as to time of filing the same, and will lie for the same reasons as if the bill were original; 10 but there are some grounds of demurrer peculiar to bills of this class. Thus, a demurrer will lie if it appears upon the face of the bill that it pleads matters which occurred before the institution of the suit, and which it is not too late to insert by amendment into the original bill." A supplemental bill is demurrable where it shows on its face that the plaintiff knew the facts therein alleged before his time to amend had expired.1 A supplemental bill is demurrable if when filed after a decree for an account it pleads matter which it shows that the plaintiff knew before the decree.13 A supplemental bill is demurrable when filed to introduce a claim founded upon a title entirely distinct from that in the original bill; as, when a man first sued claiming as heir-at-law, and afterwards sought by supplemental bill to plead a purchase of the interest of the true heir-at-law. A supplemental bill is demurrable if it is brought against a person who neither has nor claims any interest in the subjectmatter of the original suit.15 In a suit to restrain the infringement of a patent, "where the patent expires and is extended pending the litigation, and the infringement by the respondent is continued in respect to the extended patent, a supplemental bill is a proper pleading to prolong the suit, as in that state of the case the complainant may well claim, if he is the original and first inventor of the improvement, to recover of the respondent the gains and profits made by the infringement, both

8 Shaw v. Bill, 95 U. S. 10, 14. 9 Daniell's Ch. Pr. (2d Am. ed.) 1680. 10 Daniell's Ch. Pr. (2d Am. ed.) 1681; Secor v. Singleton, 41 Fed. R. 725.

11 Mitford's Pl., ch. 2, § 2, part 1; Story's Eq. Pl., § 614; Stafford v. Howlett, 1 Paige (N. Y.), 200.

13 Henry v. Travelers' Ins. Co., 45 Fed. R. 299, 303.

14 Tonkin v. Lethbridge, G. Cooper, 43; Daniell's Ch. Pr. (2d Am. ed.) 1681.

15 Baldwin v. Mackown, 3 Atk. 817; Mitford's Pl., ch. 2, § 2, part 1; Dan

12 Henry v. Travelers' Ins. Co., 45 iell's Ch. Pr. (2d Am. ed.) 1681. Fed. R. 299, 302.

before and subsequent to the extension; but the rule is otherwise where the original patent is surrendered, as the effect of the surrender is to extinguish the patent, and hence it can no more be the foundation for the assertion of a right than can a legislative act which has been repealed without any saving clause of pending actions. Consequently, the infringement of the reissued patent becomes a new cause of action for which, in the absence of any agreement or implied acquiescence of the respondent, no remedy can be had except by the commencement of a new suit." 16 Where, however, the defendant made no objection to the complainant's filing a supplemental bill setting forth an infringement of the reissued patent, but filed to it a plea similar to that which he had previously filed to the original bill, it was held that he had waived his right to object upon appeal that the suit was improperly continued, and that an original bill should have been filed." After the complainant had finished taking testimony in a suit for the infringement of a patent and an account, he was allowed to file a supplemental bill setting up infringements which had occurred after the filing of the original bill.18

Any objections to a supplemental bill which do not appear upon its face may be taken by plea or answer, which, in general, are subject to the same rules as pleas and answers to original bills.19 If a defendant has not answered the original bill, his successor may be called upon in the supplemental bill to do so.20 When that is done, the usual course is to include the answer to the original and that to the supplemental bill in the same pleading," although it is not absolutely irregular to separate them. A defense cannot be pleaded to a supplemental bill which has previously been pleaded to the original bill and overruled. If the plaintiff wish to join issue upon averments in the answer, he may file a replication to it. If there has been no replication filed in the original suit, however, a single

16 Clifford, J., in Reedy v. Scott, 23
Wall. 352, 364, 365. See also Fry v.
Quinlan, 13 Blatchf. 205; Jones v.
Barker, 11 Fed. R. 597. But compare
Woodworth v. Stone, 3 Story, 749;
Reay v. Raynor, 19 Fed. R. 308.

17 Reedy v. Scott, 23 Wall. 352.
18 Turrell v. Spaeth, 9 Off. Gaz. 1163.

19 Daniell's Ch. Pr. (2d Am. ed.) 1682. 20 Vigers v. Lord Audley, 9 Sim. 408. 21 Vigers v. Lord Audley, 9 Sim. 408. 22 Sayle v. Graham, 5 Sim. 8. 23 Pentlarge v. Pentlarge, 22 Fed. R. 412.

24 Daniell's Ch. Pr. (2d Am. ed.)1683; Perkins v. Hendryx, 31 Fed. R. 522.