for passing real estates, bearing date, etc., and thereby devised all his real estate to J. T. and G. M., and their heirs forever, as in and by the said last will and testament, reference being thereunto had, will more fully appear.

And your orator further shows that the said C. D. departed this life at the time above specified, without having altered or revoked his said will, and that the said J. T. and G. M. respectively claim to be interested in the said messuages, lands, and tenements by virtue of the said will; and therefore your orator is, as he is advised, entitled to the benefit of the said suit against them, as being or claiming to be so interested, and to the like relief as he would have been entitled to against the said C. D. if he were still living, and the said G. H., as such heir at law as aforesaid, at times disputes the validity of the said will.

To the end, therefore, that the said suit and proceedings so abated as aforesaid may stand revived against the said G. H. as heir at law as aforesaid, and be in the same plight and condition in which they were at the time of the death of the said C. D., or that the said G. H. may show good cause to the contrary, and that the said G. H., J. T., and G. M. may, upon their several and respective corporal oaths, full, true, direct, and perfect answer make to the several matters aforesaid [if answer under oath is not desired, insert waiver as in original bill, § 69, supra], and more especially that they may answer and set forth, in manner aforesaid, whether the said C. D. did not, before his death, duly make and publish his last will and testament in writing, of the date or to the purport or effect aforesaid, so far as the same is herein before set forth, or of any other date, or to such, or some other, and what effect. And whether they respectively, or one and which of them, do or doth not claim to be in some, and what, manner interested in the said real estate, under and by virtue of the said will, or how otherwise. And that your orator may have the benefit of the said suit and the proceedings therein against the said G. H., J. T., and G. M., who claim to be respectively interested as aforesaid, and such relief as, if the said C. D. were still living, he would be entitled to against him:

May it please your honor to grant unto your orator the people's writ of subpoena to revive and answer, issuing out of and under the seal of this court, to be directed to the said G. H., thereby commanding him, at a certain day and under a certain penalty, therein to be inserted, personally to be and appear before your honor in this honorable court, then and there to answer the premises, and to show cause, if he can, why the said suit, and the proceedings therein had, should not stand and be revived against him, and be in the same plight and condition as the same were at the time of the abatement thereof; and further to stand to and abide such order and decree in the premises as to your honor shall seem meet.

And may it please your honor to grant unto your orator the people's writ of subpoena, issuing out of and under the seal of this court, directed to the said J. T. and G. M., thereby commanding them, and each of them, at a certain day and under a certain penalty, therein to be inserted, personally to be and appear before your honor in this honorable court, and then and there full, true, direct, and perfect answer make to all and singular the premises, and further to stand to, perform, and abide such order and decree therein as to your honor shall seem meet.

And your orator, etc.

R. S.,

Solicitor for Complainant.

[Add verification.]10

§ 883. Defenses.

A. B., Complainant.

A bill of revivor and supplement is liable to the same description of defense as the bills, if separate, would be subject to.11 Thus, a demurrer for multifariousness in praying to revive three distinct suits is good.12 If matters added by way of supplement to a bill of revivor be irrelevant or improper, the defendant may always avail himself of the objection, either by a plea, or by demurrer, or by exceptions for impertinence.13 Where supplemental matter is improperly inserted in a bill of revivor and supplement, it does not authorize the defendant to demur to the whole bill. He should demur to the supplemental matter only.14

$ 884. Proceedings upon such bill.

In all cases where there is a bill of revivor and supplement, the case must be set down for hearing against all the parties, though the bill is only a bill of revivor against one, and an or der to revive has been obtained.15

10 This form is taken from 2 Barbour, Ch. Pr. 559.

11 2 Barbour, Ch. Pr. 89.

12 McDermott v. McGown, 4 Edw. Ch. (N. Y.) 592.

13 Pendleton v. Fay, 3 Paige (N. Y.) 204.

14 Randolph v. Dickerson, 5 Paige (N. Y.) 517.

15 2 Barbour, Ch. Pr. 89; Lake v. Austwick, 4 Jur. 314.

(945)

$885. Bill in the nature of a bill of revivor and supplement.

An original bill in the nature of a bill of revivor and supplement is a combination of an original bill in the nature of a bill of revivor and a supplemental bill, and, wherever it is proper to revive a suit by an original bill in the nature of a bill of revivor, the complainant may add to such bill such supplemental matter as is proper to be added.16 Such a bill is an original bill in the nature of a bill of revivor, so far as it seeks to revive or continue the former proceeding, in the name of a new complainant, upon whom the right to continue the proceedings is not cast by the operation of law merely, but upon whom the right is conferred by the operation of law in connection with an alleged act of the former complainant, the validity of which may be controverted by the defendant; and it is a supplemental bill so far as it seeks to supply defects in a suit which has not actually abated by bringing the proper parties before the court to remedy such defects, so that the original suit may be continued and proceeded in to a decree or final termination.17

Where the complainant in a suit assigns all his interest therein to a third person, and then dies, his grantee cannot revive and continue the proceedings by a simple bill of revivor. It can only be done in such case by an original bill in the nature of a bill of revivor and supplement; and where a defendant in such original suit is entitled to revive the proceedings therein, he must do it upon a similar bill.18 Where a complainant in an original bill dies, a person not succeeding to the rights of the decedent by mere operation of law, but as devisee, cannot file a bill of revivor, but can only have the benefit of the original proceedings, and avail himself of new facts, necessary to be stated, by an original bill in the nature of a bill of revivor and supplement.19 And so where, on the marriage of a female

16 See Story, Eq. Pl. § 385.

17 Sedgwick v. Cleveland, 7 Paige (N. Y.) 293.

18 Anderson v. White, 10 Paige (N. Y.) 575. See, also, Perkins v. Perkins, 16 Mich. 162; Webster v. Hitchcock, 11 Mich. 56; Greenleaf V. Queen, 1 Pet. (U. S.) 138.

19 Brady v. McCosker, 1 N. Y. 214.

complainant, her property becomes vested by settlement in trustees, or if any third persons, such as trustees or issue, are made

interested in it, a mere bill of revivor will not do; but the interest of such third persons must be brought forward by an original bill in the nature of a supplemental bill and a bill of revivor.20

20 Welford, Eq. Pl. 220, citing Merrewether v. Mellish, 13 Ves. 161; Manchester v. Mathewson, 2 R. I. 416; Northman v. Liverpool, L. & G. Ins. Co., 1 Tenn. Ch. 312. It has been said that, where the complainant assigns his interest in the suit pendente lite, if the defendant wishes to have the suit brought to a termination, his proper course is to apply to the court for an order that the assignee proceed to file a bill in the nature of a bill of revivor and supplement. Sedgwick v. Cleveland, 7 Paige (N. Y.) 287. The case of Sedgwick v. Cleveland, supra, in support of the above statement, cites Porter v. Cox, 5 Madd. 80, in which case the complainant became a bankrupt, pending the suit. This practice has been followed in Michigan. "By the assignment of all her interest to the present complainant after the suit was so revived, the assignee became a necessary party complainant, and the suit could no longer be prosecuted in her name after the assignment should be brought to the notice of the court. Wallace v. Dunning, Walk. (Mich.) 416. If the assignment did not operate strictly as an abatement of the suit, its effect was much the same, as it left no party complainant before the court competent to prosecute it. The only mode in which the assignee, the present complainant, could revive or get the benefit of the suit, was by filing an original bill in the nature of a bill of revivor and supplement, stating the bill and proceedings in the original suit, and the assignment to himself, and asking that the suit might be continued or revived for his benefit. So far as the present bill is confined to these objects, it was the necessary and proper course to give him the benefit of the former suit. In these respects the bill is not a mere supplemental bill, but an original bill in the nature of a bill of supplement and revivor. Daniell, Ch. Pr. 1666, 1685-1688, 1697, 1698; Sedgwick v. Cleveland, 7 Paige (N. Y.) 293. So far as it is based upon and recites the original cause, it is in the nature of a supplemental bill; so far as it seeks to revive or restore the original cause which had become defective by the assignment of the interest of the administratrix, it would seem to be in the nature of a bill of revivor; but so far as it relates to the assignment and the present complainant, it is entirely original." Webster v. Hitchcock, 11 Mich. 56. See, also, Perkins v. Perkins, 16 Mich. 162. See, also, supra, §§ 44, 828, for consideration of proceedings upon assignment pendente lite. In a New York case it was said that in all cases where, by the death of a party, the suit is abated, and his interest or title to

revivor. 84 A defendant to a bill of revivor cannot support as a defense a plea which has been pleaded by the original defendant and overruled. But if a plea has been put in, and the original defendant has died before argument, the defendant to the bill of revivor may plead the same matter de novo.85

To prevent the order of revivor, either a plea or demurrer must be put in to the bill of revivor.86 The putting in of an answer is treated as a waiver of objections to the bill, and as an admission that it is a good bill of revivor, and that it may properly be filed by the party complainant, upon which, notwithstanding anything that may be contained in the answer, it is a matter of course to draw up the order to revive.87 Though the defendant cannot, by answer, prevent the reviving of the suit, he may, if required to answer the bill, controvert in his answer the complainant's title to revive; and if he does so, and succeeds in showing at the hearing that the complainant was not enti tled to revive, or if the complainant fails to establish his right to revive, the latter takes nothing by his suit.88 The answer must be confined to such matters as are called for by the bill, or which would be material to the defense, with reference to

84 2 Barbour, Ch. Pr. 53; Hollingshead's Case, 1 P. Wms. 742; Perry v. Jenkins, 1 Mylne & C. 118; Mason v. Hartford, P. & F. R. Co., 19 Fed. 53. See Shainwald v. Lewis, 69 Fed. 487; Hubbell v. Lankenau, 63 Fed. 881; Riely v. Kinzel, 85 Va. 480, 7 S. E. 907; Peer v. Cookerow, 13 N. J. Eq. 136.

85 2 Barbour, Ch. Pr. 53; Samuda v. Furtado, 3 Brown Ch. 70. 86 2 Barbour, Ch. Pr. 50; Harris v. Pollard, 3 P. Wms 348; Lewis v. Bridgman, 2 Sim. 465; Codrington v. Houlditch, 5 Sim. 286.

87 2 Barbour, Ch. Pr. 50, 54; Nanney v. Totty, 11 Price, 117; Day v. Potter, 9 Paige (N. Y.) 645. Though, where an answer is called for, the defendant may by it object to the revivor, yet if it be a mere bill of revivor, in which the question between the parties is simply as to the right to revive, an answer, unless required by the bill, is unnecessary. 2 Barbour, Ch. Pr. 54.

88 2 Barbour, Ch. Pr. 50; Douglass v. Sherman, 2 Paige (N. Y.) 358; Harris v. Pollard, 3 P. Wms. 348; Day v. Potter, 9 Paige (N. Y.) 645; Lasco v. Moys, Bunb. 144.