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 origi nal 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." 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.

5 Bowie v. Minter, 2 Ala. 406; Pendleton v. Fay, 3 Paige (N. Y.) 204.

6 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.) 834; 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.

§ 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 be 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.

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. 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.18 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. And so where, on the marriage of a female

19

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.