in the original suit cannot be retried except so far as they remain undecided.109

§ 878. Effect of revivor.

A bill of revivor by a defendant merely substantiates the suit, and brings before the court the parties necessary to see to the execution of the decree, to be the objects of its operations, rather than to litigate the claims made by the several parties in the original pleadings, except so far as they remain undecided.110 Where the abatement is total, an order to revive places the suit, and all the proceedings in it, in precisely the same condition as at the time when the abatement took place. The new complainant may take the same proceedings that the original complainant might have taken.111 Generally, where an abatement is occasioned by the death of a defendant, the order to revive against his representatives will place the suit as fully in the same position, with regard to such representatives, as can be done with reference to the change of the individuals before the court. But while a new complainant may prosecute process of contempt against a defendant, taking it up where it left off at abatement, and, if issued before such abatement, such process will be revived by the order to revive the suit, such is not the case where the abatement is occasioned by

109 Winston v. McAlpine, 65 Ala. 377. The only questions that can be raised upon the bill of revivor are whether the complainant by whom the revivor is asked has succeeded to the rights of the deceased, or has become his legal representative, so as to enable him to continue the prosecution of the suit, if undetermined, or to enforce the decree already rendered, if unexecuted. Sharon v. Terry, 36 Fed. 337. "Nothing can be more clear than that, upon a bill to revive, the sole questions before the court are the competency of the parties and the correctness of the frame of the bill to revive." Bettes v. Dana, 2 Sumn. 383, Fed. Cas. No. 1,368; Newcombe v. Murray, 77 Fed. 493; Fretz v. Stover, 22 Wall. (U. S.) 198; Arnold v. Styles, 2 Blackf. (Ind.) 391; 2 Maddock, Ch. Pr. 403.

110 2 Barbour, Ch. Pr. 57; Mitford, Eq. Pl. 79.

111 2 Barbour, Ch. Pr. 58; Mitford, Eq. Pl. 78; Hyde v. Forster, 1 Dickens, 132; Gregson v. Oswald, 1 Cox, 343; Philips v. Derbie, 1 Dickens, 98.

the death of the defendant, as the process, being personal, cannot be revived.112 Where there is a cross bill, a revivor of the original suit will not have the effect of reviving the cross suit. There must be a revivor in each cause.113

112 2 Barbour, Ch. Pr. 58; Hyde v. Forster, 1 Dickens, 132 118 2 Barbour, Ch. Pr. 58.

(940)

CHAPTER XLVIII.

BILL OF REVIVOR AND SUPPLEMENT.

879. Definition and nature.

A bill of revivor and supplement is a compound of a supplemental bill and a bill of revivor. It not only continues a suit which has abated, but supplies any defects in the original bill arising from subsequent events.1 If a suit becomes abated, and, by any act besides the event occasioning abatement, the rights of the parties are affected, as by a settlement or a devise, under certain circumstances, though a bill of revivor merely may continue the suit, so as to enable the parties to prosecute it, yet, to bring before the court the whole matter necessary for its consideration, the parties must, by supplemental bill, added to and made part of the bill of revivor, show the settlement, or devise, or other act by which their rights are affected. Likewise, if any other event occasioning an abatement is accompanied or followed by any matter necessary to be stated to the court, either to show the rights of the parties, or to obtain the

1 Story, Eq. Pl. § 387; Mitford, Eq. Pl. 80; Cooper, Eq. Pl. 84; 2 Barbour, Ch. Pr. 88; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334; Eastman v. Batchelder, 36 N. H. 141, 72 Am. Dec. 295; Bowie v. Minter, 2 Ala. 406; Manchester v. Mathewson, 2 R. I. 416; Douglass v. Sherman, 2 Paige (N. Y.) 358; Pendleton v. Fay, 3 Paige (N. Y.) 204; Templeman v. Steptoe, 1 Munf. (Va.) 339. "A bill of revivor and supplement is said to be a compound of a supplemental bill and bill of revivor, and it not only continues the suit which has abated, but supplies any defects in the original bill arising from subsequent events; and where a complainant has a right to revive a suit, he may add to the bill of revivor such supplemental matter as is proper to be added, but the supplemental matter must have been newly discovered, and verified by affidavit, and may be demurred to by the defendant." Bowie v. Minter, 2 Ala. 406.

full benefit of the suit beyond what is merely necessary to show by or against whom the cause is to be revived, that matter must be set forth by way of supplemental bill added to the bill of revivor.2 Where a suit abates by the death of one of the original defendants, and a third party subsequently acquires the interest of the deceased party by purchase from his heirs, before the revival of the suit against such heirs, the suit must be revived by a bill of revivor and supplement against the purchaser. Whenever a complainant has a right to revive a suit, he may add to the bill of revivor such supplemental matter as is proper to be added. Such supplemental matter must have been newly discovered, and must be verified by affidavit.5 New matter may be introduced into a bill of revivor and supplement, so that defects in the original bill arising from subsequent events may be supplied; but this cannot be done with any effect where there is nothing in the original bill by which it may be sustained, for such original bill must show a case for the complainant, otherwise the new matter would be a new cause in court.

§ 880. When such bill may be filed.

A bill of revivor and supplement may be filed at any time, as a matter of right, within the ordinary periods of limitation. If no decree has been made, or if the supplemental matter has arisen since the decree, it is a matter of course to permit the complainants to file their bill of revivor and supplement, leaving the defendant to make his objection, in the usual mode, to

2 Story, Eq. Pl. § 387; Cooper, Eq. Pl. 64; Mitford, Eq. Pl. 70, 71; 2 Barbour, Ch. Pr. 88, 89; Merrewether v. Mellish, 13 Ves. 161; Rylands v. Latouche, 2 Bligh, 566; Russell v. Sharp, 1 Ves. & B. 500; Bampton v. Birchall, 1 Phillips, 568.

8 Harrington v. Becker, 2 Barbour, Ch. (N. Y.) 75.

42 Barbour, Ch. Pr. 88; Pendleton v. Fay, 3 Paige (N. Y.) 204. Bowie v. Minter, 2 Ala. 406; Pendleton v. Fay, 3 Paige (N. Y.)

204.

• Eastman v. Batchelder, 36 N. H. 141, 72 Am. Dec. 295; Bampton v. Birchall, 5 Beav. 330. See Westcott v. Cady, 5 Johns. Ch. (N. Y.) 234; Pendleton v. Fay, 3 Paige (N. Y.) 204.

the whole or any part of the bill. It would seem on principle that such a bill should not be filed without leave, though there are utterances to the contrary.8

$ 881. Frame of bill.

A bill of revivor and supplement is merely a compound of a bill of revivor and a supplemental bill, and must be framed and proceeded upon in the same manner.9

§ 882. Form of bill of revivor and supplement.

[Title of court and cause, and address to the court.]

Complaining, shows unto your honor your orator A. B., of, etc.: That your orator did, on or about exhibit his original bill of complaint in this honorable court against C. D., of, etc., thereby [set forth so much of the bill, with the prayer, as may be necessary]; and the said C. D., being duly served with process of subpoena for that purpose, appeared and put in his answer thereto, and, your orator having replied thereto, witnesses were examined in said cause on both sides, as by the said pleadings and other proceedings in the said cause, now remaining as of record in this honorable court, reference thereunto being had, will more fully appear.

And your orator further shows unto your honor that, before any further proceedings were had in the said cause, and on or about the said C. D. departed this life without issue, leaving G. H., of, etc., a defendant hereinafter named, his heir at law; and the said suit and the proceedings therein having become abated by the death of the said C. D., your orator, as he is advised, is entitled to have the same revived against the said G. H. as the heir of the said C. D., and restored to the same condition in which they were at the time of his death.

And your orator, by way of supplement, showeth unto your honor that the said C. D. in his lifetime duly made and published his last will and testament in writing, in such manner as is by law required

7 Pendleton v. Fay, 3 Paige (N. Y.) 204; Young v. Kelly, 3 App. D. C. 296. See Story, Eq. Pl. § 831; Hollingshead's Case, 1 P. Wms. 742; Perry v. Jenkins, 1 Mylne & C. 122.

& Pendleton v. Fay, 3 Paige (N. Y.) 204; Sedgwick v. Cleveland, 7 Paige (N. Y.) 287. See, for practice in federal courts, United States Equity Rule 56. A bill of revivor and supplement in the nature of a bill of review must be founded upon an affidavit of the discovery of new matter, and cannot filed without the special leave of court. 2 Barbour, Ch. Pr. 89: Pendleton v. Fay, 3 Paige (N. Y.) 204.

2 Barbour, Ch. r. 89; Cooper, Eq. Pl. 84.