fendant, in opposition thereto, and it appearing to the court that [state shortly the object of the supplemental bill], and that it is necessary to bring G. H. before this court as a party defendant in this suit, it is, on motion of the solicitor for said complainant, ordered that the said complainant have leave to file his supplemental bill in this suit.

§ 838. Process and appearance.

Under the English chancery practice, if a party to the original bill does not voluntarily appear to a supplemental bill, the complainant must proceed by subpoena to obtain an appearance to the same.75 The subpoena is in the same form as a subpoena to answer an original bill, except that it specifies the nature of the bill which has been filed.76 Obedience to the writ may be enforced in the same manner and by the same process as to a subpoena to answer the original bill.77

A demurrer to a supplemental bill may be filed whenever it appears upon the face of the supplemental bill that the complainant has no right to file that species of bill, either from

75 2 Barbour, Ch. Pr. 75. See Lawrence v. Bolton, 3 Paige (N. Y.) 294. In Illinois, upon the filing of a supplemental bill, no summons need issue against a party already in court, nor need any appearance to a supplemental bill be entered before a pro confesso order can be entered. A defendant already in court by service or appearance may be required to answer a supplemental bill, and, on his failure to do so, a decree pro confesso to such supplement may be rendered. Mix v. Beach, 46 Ill. 315. United States Equity Rule 57 requires the defendant to a supplemental bill to plead thereto on the next rule day after the supplemental bill is filed, unless the court assigns some other time. Upon a supplemental bill, no process of subpoena need issue unless new parties are made. The rule upon parties already served to answer the supplemental bill is sufficient. Shaw v. Bill, 95 U. S. 10. See, also, Great Western Telegraph Co. v. Purdy, 162 U. S. 329. But see French v. Hay, 22 Wall. (U. S.) 238, saying: "New process is necessary unless waived upon a supplemental bill and a bill of revivor, but not upon an amended bill, as to defendants who are already before the court. Cunningham v. Pell, 6 Paige (N. Y.) 657; Longworth v. Taylor, 1 McLean, 516, Fed. Cas. No. 8,491."

76 2 Barbour, Ch. Pr. 75.

77 2 Barbour, Ch. Pr. 75. See supra, § 129.

want of title or from mistake in pleading.78 If a supplemental bill is filed without any sufficient grounds, the defendant may demur.79 If it appears upon the face of such a bill that all the matters alleged therein arose previous to the commencement of the suit, and might have been inserted in the original bill by way of amendment, the objection may be taken by demurrer, even though the supplemental bill contains an allegation that the facts were not known to the complainant until the original cause was at issue.80 Many of the causes of demurrer which apply to an original bill will also apply to a supplemental bill, but there are some grounds of demurrer which are applicable solely to supplemental bills.81 If a supplemental bill is filed upon matters arising subsequent to the time of filing the original bill against a person who claims no interest out of the matters in litigation by the former bill, the defendant to the bill thus brought as a supplemental bill may demur, especially if the bill prays that he may answer the matters charged in the former bill.82 A defendant to a supplemental bill may also demur if the complainant files a supplemental bill claiming the same matter as in his original bill, but upon a title totally distinct.83 A defendant cannot demur to a bill of this kind on the ground that, by the practice of the court, the complainant

78 Story, Eq. Pl. § 612; Cooper, Eq. Pl. 212.

79 2 Barbour, Ch. Pr. 75; Lawrence v. Bolton, 3 Paige (N. Y.) 294. 80 2 Barbour, Ch. Pr. 75; Story, Eq. Pl. § 614; Stafford v. Howlett, 1 Paige (N. Y.) 200; Colclough v. Evans, 4 Sim. 76; Walker v. Gilbert, 7 Smedes & M. (Miss.) 456. See Crompton v. Wombwell, 4 Sim. 628. A bill purporting to be a supplemental bill will not be ordered, on motion, to be taken off the file on the ground that it is not in fact such. The defendant should demur. 1 Barbour, Ch. Pr. 366; Bowyer v. Bright, 13 Price, 316. Where the defendant who answered the original bill specifically alleged a want of equity therein, and thereafter complainant filed a supplemental bill, it was held proper to consider and decide, on demurrer to the supplemental bill, the question of want of equity in the original bill. Williams v. Winans, 22 N. J. Eq. 573. 81 2 Barbour, Ch. Pr. 75.

82 2 Barbour, Ch. Pr. 75; Mitford, Eq. Pl. 202; Baldwin v. Mackown, 3 Atk. 817.

83 2 Barbour, Ch. Pr. 75, 76; Tonkin v. Lethbridge, Coop. 43.

may obtain the requisite relief by petition.84 A motion to take a supplemental bill off the file for irregularity, on the ground that it does not state supplemental matter, will not lie. The proper course in such a case is to demur.85 A supplemental bill cannot be filed after a dismissal of the original bill.86 Demurrers to supplemental bills are subject to the same rules, both with respect to their form and substance, and to the practice arising upon them, as the demurrers to original bills.8

§ 840. Plea.

87

Besides those grounds of plea which are common to supplemental and original bills, if a supplemental bill is brought on matter which arose before the original bill was filed, and which might have been introduced into the original bill, and this fact does not appear upon the supplemental bill, so as to enable the defendant to demur, it may be pleaded.88 If a supplemental bill is filed without sufficient grounds, the defendant may make the objection by way of plea.89 Pleas to supplemental bills are subject to the same rules, both with respect to their form and substance and to the practice arising upon them, as pleas to original bills.90

If the defendant to the supplemental bill neither demurs nor pleads to it, he must put in his answer as in the case of an original bill. It is said that, if there is any matter in the supplemental bill which is properly the subject of demurrer or plea, he may, by his answer, claim the same benefit for it that

84 2 Barbour, Ch. Pr. 76; Davies v. Williams, 1 Sim. 5.

85 2 Barbour, Ch. Pr. 76; Bowyer v. Bright, 13 Price, 316; Wing v. Champion, 1 Tenn. Ch. 517.

86 Burke v. Smith, 15 Ill. 158.

87 2 Barbour, Ch. Pr. 76.

88 2 Barbour, Ch. Pr. 76; Stafford v. Howlett, 1 Paige (N. Y., 200.

89 Cooper, Eq. Pl. 303, 304; 2 Barbour, Ch. Pr. 76; Lawrence v. Bol

ton, 3 Paige (N. Y.) 294.

90 2 Barbour, Ch. Pr. 76.

he would have been entitled to had he demurred or pleaded."1 The answer must be restricted to the matters stated in the supplemental bill, and the defendant has no right, under pretext of answering a supplemental bill, to add to or amend his answer to the original bill.92 But where a defendant is called upon to answer the original bill at the same time that he answers the supplemental matter, the usual course is to include the answers to the original bill and supplemental bill in the same answer. It appears, however, that it is not absolutely irregular to separate them. 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, and are subject to the same contingencies.95 After the answer has been put in, and proceedings on the supplemental bill have arrived at the same point at which the original bill stood, they then proceed pari passu together.96

§ 842. Replication.

93

A replication may be filed by the complainant to the defendant's answer, if one is put in, in the same manner as in the case of an original bill. A separate replication in a supplemental suit is only necessary where there has been already a replication in the original suit. Where 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.97 843.

Evidence.

If the new matter in the supplemental bill is not admitted by the defendant's answer, it must be proved; otherwise the

91 2 Barbour, Ch. Pr. 76, 77.

92 Swan v. Dent, 2 Md. Ch. 111; Thomas v. Visitors of Frederick County School, 7 Gill & J. (Md.) 369.

98 2 Barbour, Ch. Pr. 77; Vigers v. Audley, 9 Sim. 408.

94 Sayle v. Graham, 5 Sim. 8; 2 Barbour, Ch. Pr. 77.

95 2 Barbour, Ch. Pr. 77.

96 2 Barbour, Ch. Pr. 77; Lube, Eq. Pl. 138.

97 2 Barbour, Ch. Pr. 77; Catton v. Carlisle, 5 Madd. 427. See Day T. Potter, 9 Paige (N. Y.) 645.

supplemental bill will be dismissed with costs. Witnesses may be examined as to the new matter contained in the supplemental suit.98 Where no witnesses have been examined in the original cause, they may be examined (provided publication has not passed) to prove the matters in issue in the original cause, as well as those in issue in the supplemental suit.99 Whatever evidence was properly taken in the original suit may be made use of in both suits, even though not entitled in the supplemental suit.100 In cases of alienation pendente lite, the alienee is bound by the proceedings in the suit after alienation, and before the alienee became a party to it, and depositions of a witness taken after the alienation, and before the alienee became a party, may be used by other parties against the alienee as they might have been used against the party under whom he claims.101

If there has been no decree in the original suit before the filing of the supplemental bill, the original and supplemental suit may come on for hearing together, unless the supplemental bill is merely for discovery, and one decree will be made in both; but if a decree has been obtained before the event by which the supplemental bill was rendered necessary, though it be only a decree nisi, there must be a decree on the supplemental bill, for which purpose the supplemental cause must be brought to a hearing alone, or it may be heard with the original cause for further directione 102

98 2 Barbour, Ch. Pr. 78.

99 2 Barbour, Ch. Pr. 78. When publication has passed, it will be ir regular to examine witnesses as to matters in issue in the original suit, and, if any are re-examined as to such matters, the depositions cannot be read at the hearing. 2 Barbour, Ch. Pr. 78; Bagnall v. Bagnall, 12 Vin. Abr. 114, pl. 9.

100 2 Barbour, Ch. Pr. 78;

Giles v. Giles, 1 Keen, 685.

101 2 Barbour, Ch. Pr. 79; Mitford, Eq. Pl. 74; Garth v. Ward, 2 Atk 174.

102 2 Barbour, Ch. Pr. 71, 72, 79; Mitford, Eq. Pl. 64, 75, 76; Story Eq. Pl. § 343; Seton, Decrees, 385, 386; Adams v. Dowding, 2 Madd. (913)