similar to that required for a bill of review.

8

An original bill in the nature of a bill of review lies to review only a final, not an interlocutory, decree. A bill of review may be incorporated into such a supplemental bill. It must be filed as soon after the new matter is discovered as it reasonably may be, for a party will not be permitted to file such a bill where he has been guilty of laches.10 A bill in the nature of a bill of review in its frame nearly resembles a bill of review, except that, instead of praying that the former decree may be reviewed and reversed, it prays that the cause may be heard with respect to the new matter at the same time that it is reheard upon the original bill."

7 Mitford, Eq. Pl. 91, 92; Story, Eq. Pl. § 422; Hyman v. Smith, 10 W. Va. 298.

8 Bates v. Great Western Telegraph Co., 35 Ill. App. 254; Story, Eq. Pl. §§ 408a, 421.

Story, Eq. Pl. § 422; Perry v. Phelips, 17 Ves. 173; Pendleton v. Fay, 3 Paige (N. Y.) 204.

10 Story, Eq. Pl. § 423. Where, after a cause has been submitted to the court on a bill to set aside a conveyance made in fraud of creditors, and confirm the title to the land in the complainant as purchaser of the same under execution, the decree being entered of the term the cause is submitted, the judgment under which the same was made is reversed, the defendant may, on application at the next term, obtain a rehearing, if he is entitled to the benefit of the reversal; or he may file a bill in the nature of a bill of review upon newly-discovered matter, and thus obtain relief. Gould v. Sternberg, 128 Ill. 510, 21 N. E. 628.

11 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1581, citing Story, Eq. Pl. § 425. For parties to bills in the nature of bills of review, see Maxwell Land Grant & Railway Co. v. Thompson, 1 N. M. 603.

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CHAPTER LV.

BILLS IN THE NATURE OF BILLS OF REVIVOR.

§ 962. Definition and general nature.

When the interest of a party dying is transmitted to another in such a manner that the transmission may be litigated in the court of chancery, as in the case of a devise, the suit is not permitted to be continued by bill of revivor, but such person, if he succeeds to the interest of a complainant, is entitled to the benefit of the former suit; and if he succeeds to the interest of a defendant, the complainant is entitled to the benefit of the former suit against him, and this benefit is to be obtained by an original bill in the nature of a bill of revivor.1 A devisee or alienee cannot maintain a bill of revivor, but he may maintain a bill in the nature of a bill of revivor.2 Cases of bankruptcy and insolvency are cases where the question of title may be put in issue and litigated.3 Such a bill is said to be original merely for want of that privity of title between the party to the former bill, and the party to the latter, though claiming the same interest, which would have permitted the continuance of the suit by a bill of revivor. Therefore, where the validity of the alleged transmission of interest is established, the party to the new bill will be equally bound by, or have advantage of, the

12 Barbour, Ch. Pr. 81; Story, Eq. Pl. § 378; Mitford, Eq. Pl. 71, 97; Douglass v. Sherman, 2 Paige (N. Y.) 358; Wilkinson v. Parish, 3 Paige (N. Y.) 653. See, supra, § 849.

2 Northman v. Liverpool, L. & G. Ins. Co., 1 Tenn. Ch. 317; Pendleton v. Fay, 3 Paige (N. Y.) 205; Russell's Heirs v. Craig's Devisee, 3 Bibb (Ky.) 377; Lyons v. Van Riper, 26 N. J. Eq. 337; Peer v. Cookerow, 14 N. J. Eq. 361; Backhouse v. Middleton, 1 Ch. Cas. 174.

82 Barbour, Ch. Pr. 36; Monteith v. Taylor, 9 Ves. 615; Mendham v. Robinson, 1 Mylne & K. 217; Bainbrigge v. Blair, Younge, 386.

proceedings on the original bill, as if there had been such a privity between him and the party to the original bill, claiming the same interest. The suit is considered as pending from the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defendant to answer before an answer can be compelled to a cross bill, and every other advantage which would have attended the institution of the suit by the original bill, if it could have been continued by a bill of revivor merely.5

§ 963. How it differs from a bill of revivor.

The distinction between bills of revivor and bills in the uature of bills of revivor seems to be that the former, in case of death, are founded upon privity of blood, or representation by operation of law; the latter, in privity of estate or title by act of the party. In the former case nothing can be in contest except whether the party be heir or personal representative; in the latter, the nature and operation of the whole act by which the privity of estate or title is created is open to controversy. Thus, the heir may be made a party by a bill of revivor, for his title is by mere operation of law; but the devisee must come in by a bill in the nature of a bill of revivor, for he comes in as a purchaser under the testator in privity of estate or title. which may be disputed.7

§ 964. How it differs from original bill in the nature of a supplemental bill.

Upon an original bill in the nature of a bill of revivor, the benefit of the former proceedings is absolutely obtained, so that the pleadings in the first cause, and the depositions of witnesses,

42 Barbour, Ch. Pr. 81; Story, Eq. Pl. § 380; Mitford, Eq. Pl. 71, 97, 98; Houlditch v. Marquis of Donegal, 1 Sim. & S. 495.

2 Barbour, Ch. Pr. 81; Story, Eq. Pl. § 380.

Story, Eq. Pl. § 379; 2 Barbour, Ch. Pr. 82; Peer v. Cookerow, 14 N. J. Eq. 361; Northman v. Liverpool, L. & G. Ins. Co., 1 Tenn. Ch. 317: Slack v. Walcott, 3 Mason, 508, Fed. Cas. No. 12,932.

72 Barbour, Ch. Pr. 82; Story, Eq. Pl. § 379; Harrison v. Ridley, 2 Eq. Cas. Abr. 3. Purchasers, assignees, devisees, and other persons

if any have been taken, may be used in the same manner as if filed or taken in the second cause, and, if any decree has been made in the first cause, the same decree shall be made in the second. But upon an original bill in the nature of a supplemental bill, a new defense may be made; the pleadings and depositions cannot be used in the same manner as if filed or taken in the same cause; and the decree, if any has been obtained, is in nowise of advantage other than as it may be an inducement to the court to make a similar decree.

§ 965. Parties.

A bill of this nature cannot be brought, except by some person who claims in privity with the complainant in the original bill. Thus, for example, if a bill is filed by a devisee under a will, and afterwards a subsequent will is proved, the latter devisee cannot, by a bill in the nature of a supplemental bill, avail himself of the proceedings in the original bill, for there is no privity between the complainant in the original suit and the complainant in the supplemental suit. But if the bill had been filed by the devisor himself, for some matter touching the estate devised, then the second devisee might file a supplemental bill in the nature of a bill of revivor, notwithstanding the first devisee had already filed such a bill, for he derives his title solely from the devisor, independently of the first devisee.9

coming in privity of estate, but not of representation, are not competent to bring a bill of revivor, but, by an original bill in the nature of a bill of revivor, they may draw to themselves the advantages of the former suit, in whatever stage it may be at the time of the abatement, and, if that happens before decree, they may carry on the suit to a final decision. Privies in estate by deed are entitled to the same benefit of the proceedings upon an original bill in the nature of a bill of revivor as privies in law are upon a bill of revivor. Slack v. Walcott, 3 Mason, 508, Fed. Cas. No. 12,932, citing Mitford, Eq. Pl. 66, 88; Anonymous, 1 Atk. 88, 571; Harrison v. Ridley, 2 Comyn, 589; Huet v. Say, Sel. Cas. t. King, 53; Gilbert, Forum Rom. p. 172.

8 2 Barbour, Ch. Pr. 82; Mitford, Eq. Pl. 72; Story, Eq. Pl. § 384; Lloyd v. Johnes, 9 Ves. 37.

Story, Eq. Pl. § 385; 2 Barbour, Ch. Pr. 83; Oldham v. Eboral, Coop. t. Brough. 27; Rylands v. Latouche, 2 Bligh, 566; Tonkin v.

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Where a bill in the nature of a bill of revivor is filed by any one who was not a party to the original suit, either as the representative of a deceased party or otherwise, all of the other parties to such original suit who have any interest in the further proceedings therein should be made parties to such bill, either as complainants or defendants.10 Wherever there has been a devise of real estate, and the design is to revive the suit, either in favor of or against the devisee the devisee and heir must both be made parties complainant or defendant.11

966. Frame of such a bill.

An original bill in the nature of a bill of revivor should, in general, state the same facts as a bill of revivor. It should state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party deceased has been transmitted. It must also charge the validity of the transmission, and state the rights which have accrued by it.12 The bill should also pray that the suit may be revived, and that the complainant may have the benefit of the former proceedings thereon.13

967. Form of bill in the nature of bill of revivor.

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

Humbly complaining, shows unto your honors your orator, A. B., of, etc.: That on or about the 1st day of May, A. D. 1900, one G. H., of, etc., filed his bill of complaint in this honorable court against C. D., of., etc., thereby stating [setting forth material parts of bill for specific performance of contract to convey land], and praying [set out prayer verbatim]; that the said C. D., being served with process of summons, appeared to said bill, and put in his answer thereto, and the said G. H. filed his replication to said answer, and that, said cause

Lethbridge, Coop. 43; Slack v. Walcott, 3 Mason, 508, Fed. Cas. No. 12,932.

10 2 Barbour, Ch. Pr. 82; Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 538.

11 Peer v. Cookerow, 14 N. J. Eq. 301.

12 2 Barbour, Ch. Pr. 83; Mitford, Eq. Pl. 97; Phelps v. Sproule, 4 Sim.

318; Pingree v. Coffin, 12 Gray (Mass.) 288, 319.

18 2 Barbour, Ch. Pr. 83; Phelps v. Sproule, 4 Sim. 318.