diction, that objection may be raised by a demurrer to the bill. of revivor.13 If a bill of revivor be brought without sufficient cause to revive, and this be not apparent upon its face, or if the plaintiff is not entitled to revive the suit at all, though a title is stated in the bill so that it is not demurrable, the defendant may set up his objections to it by plea.14 The running of the statute of limitations after the time when a person became entitled to revive is also in most cases, except after a decree for an account,15 a defense and a bar to a bill of revivor, which may be set up by plea.16 No plea can be put in against a bill of revivor which has been pleaded to the original bill and overruled, although if a plea has been put in and the suit abated before argument, it may subsequently be pleaded anew to the original bill. When an answer to a bill of revivor is required, it must be confined to such matters as are called for by the bill, or as would be material to the defense with reference to the order made upon it.18 Allegations which might have been pleaded before abatement to the original bill will be considered as impertinent,19 and disregarded.20 It will not, however, be impertinent, if it states matters of defense which have occurred since the answer to the original bill was filed, though these do not affect the title of the plaintiff to revive.21 Such an answer is impertinent when it describes and complains of irregularities in the suit before the abatement.22 Such an answer should be signed by counsel; 23 and exceptions will lie to it for insufficiency, scandal, and impertinence.24 If it does not admit the plaintiff's title to revive or state any circumstances which he is desirous of controverting, it must, if the abatement has taken place after decree or issue joined in the original cause, be replied to.25 Otherwise, a separate replication will be unnecessary, and one replication will put in issue both the allegations in that and 13 Sharon v. Terry, 36 Fed. R. 337. 14 Daniell's Ch. Pr. (2d Am. ed.) 1710; Lewis v. Bridgman, 2 Simons, 465. 15 Hollingshead's Case, 1 P. Wms. 742; Daniell's Ch. Pr. (2d Am. ed.) 1711. 16 Daniell's Ch. Pr. (2d Am. ed.) 1710; Coit v. Campbell, 82 N. Y. 509; Perry v. Jenkins, 1 Myl. & Cr. 122; Mason v. Hartford, P. & F. Ry. Co., 19 Fed. R. 53, 56; Story's Eq. Pl. § 831. 17 Daniell's Ch. Pr. (2d Am. ed.) 1711. 18 Daniell's Ch. Pr. (2d Am. ed.) 1711; Story's Eq. Pl. § 868 a. 19 Nanney v. Tottey, 11 Price, 117. 20 Gunnell v. Bird, 10 Wall. 304, 308; Fretz v. Stover, 22 Wall. 198, 204. 21 Langley v. Overton, 10 Simons, 345. 22 Wagstaff v. Bryan, 1 R. & M. 28. 23 Daniell's Ch. Pr. (2d Am. ed.) 1712. 24 Wagstaff v. Bryan, 1 R. & M. 28: Daniell's Ch. Pr. (2d Am. ed.) 1712. 25 Daniell's Ch. Pr. (2d Am. ed.) 1712. those in the original answer.26 In all other respects, the form and the proceedings upon demurrers, pleas, and answers to bills of revivor should conform as nearly as possible to those of and upon similar pleadings to original bills.27 A bill of revivor need not be set down for a hearing, unless it prays other relief than a mere revivor.28 Where a bill of revivor seeks merely an admission of assets and a revivor, and the defendant admits assets, the cause may proceed upon the order of revivor merely.29 If, however, any issue is joined upon the answer to it, a hearing will be necessary.30 The sole questions before the court when a bill of revivor is filed are the competency of the parties by and against whom it is filed, and the frame of the bill.81 A cause is not revived until an order of revivor has been entered.32 8 § 182. Bills in the Nature of Bills of Revivor in general. A bill in the nature of a bill of revivor is a bill filed "to obtain the benefit of a suit after abatement in certain cases which do not admit of a continuance of the original bill."1 "If the death of a party whose interest is not determined by his death is attended with such a transmission of his interest that the title to it, as well as the person entitled, may be litigated in the court of chancery," as in the case of a devise 2 or conveyance of real estate, "the suit is not permitted to be continued by a bill of revivor. An original bill upon which the title may be litigated must be filed, and this bill will so far have the effect of a bill of revivor that if the title of the representative substituted by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill as if the suit had been continued by a bill of revivor." 4 "The bill is said to be original merely for want of that privity between the party to the former and the party to the latter bill, though claiming the same interest, which would have permitted the continuance of the suit by bill of revivor. Therefore, when the validity of the alleged 26 Catton v. Earl of Carlisle, 5 Madd. 427; Daniell's Ch. Pr. (2d Am. ed.) 1712. 27 Daniell's Ch. Pr. (2d Am. ed.) 1711, 1712. 31 Bettes v. Dana, 2 Sumner, 383. § 182. 1 Mitford Pl. ch. 1, § 3. See Slack v. Walcott, 3 Mason, 508, 512; 28 Pruen v. Lunn, 5 Russ. 3; Daniell's Sharon v. Terry, 36 Fed. R. 337, 353. Ch. Pr. (2d Am. ed.) 1713. 29 Mitford's Pl. ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1713. 2 Slack v. Walcott, 3 Mason, 508. 3 Sharon v. Terry, 36 Fed. R. 337. 4 Mitford's Pl. ch. 1. § 3. See Slack v. 30 Daniell's Ch. Pr. (2d Am. ed.) 1713; Walcott, 3 Mason, 508. Mitford's Pl. ch. 1, § 3. transmission of interest is established, the party to the new bill shall be equally bound by, or have advantage of the proceedings in the original bill, as if there had been such a privity between him and the party to the original bill claiming the same interest; and the suit is considered as pending from the time of 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 original bill, if it could have been continued by bill of revivor merely."5 So the pleadings filed and any testimony taken in the original cause can be used in the same manner in the second cause after a bill in the nature of a bill of revivor has been filed. Such a bill can only be filed for the purpose of bringing in a person who claims in privity with the party whose death caused the abatement. Thus, if a bill is filed by a devisee under a will, and afterwards a subsequent will is proved, the devisee under the second will can in no way avail himself of the proceedings in the suit; for there is no privity between him and the original plaintiff. If, however, a bill has been filed by the devisor himself for some matter concerning the estate devised, the second devisee may file a supplemental bill in the nature of a bill of revivor, even if the first devisee have already filed such a bill; for he derives his title to do so solely from the devisor independently of the first devisee. When the court had jurisdiction of the original suit, a want of difference of citizenship between the parties to the bill in the nature of a bill of revivor will not be a defect in it." § 183. Frame of Bills in the Nature of Bills of Revivor and Proceedings upon them. A bill in the nature of a bill of revivor "must state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party dead has been transmitted; and it must charge the validity of the transmission, and state the rights which have accrued by it."1 5 Mitford's Pl. ch. 1, § 3. 6 Slack v. Walcott, 3 Mason, 508; Vattier v. Hinde, 7 Pet. 252, 266; Story's Eq. Pl. §§ 371-387; Daniell's Ch. Pr. (2d Am. ed.) 1719. 7 Daniell's Ch. Pr. 1720; Story's Eq. Pl. § 385; Rylands v. Latouche, 2 Bligh, 585; Tonkin v. Lethbridge, G. Cooper, 43. 8 Oldham v. Eboral, Cooper Select Cases, 27. Clarke v. Mathewson, 12 Pet. 164; s. c. 2 Sumner, 262; Minnesota Co. v. St. Paul Co., 2 Wall. 609. § 183. 1 Mitford's Eq. Pl. ch. 1, § 3. It usually prays that the original suit may be revived, and the party filing it have the benefit of the former proceedings therein.2 Probably a subpœna issued in accordance with its prayer may be served upon the attorney of an absent defendant, who had already appeared, in the same manner as a subpoena upon a bill filed to stay proceedings at law. Otherwise the form and the proceedings upon bills in the nature of bills of revivor are the same as those upon bills of revivor; and the difference between the two is practically one of mere nomenclature.5 4 § 184. Bills of Revivor and Supplement. A bill of revivor and supplement is a bill which revives a suit after an abatement, and at the same time supplies a defect which has arisen in it since its institution. Thus, where by the death of a defendant new rights accrue to the plaintiffs, a bill of revivor and supplement is necessary to state those rights; and where, in a suit to restrain the infringement of a patent, the complainant assigned his interest and died, it was held improper for the assignee to revive the suit by a bill of revivor, the court saying that a "supplemental bill," but evidently intending thereby a bill of revivor and supplement, must be filed. It has been held in England that by such a bill a defect apparent upon the face of the original bill cannot be cured. A bill of revivor and supplement is merely a compound of a bill of revivor and a supplemental bill, and in its separate parts must be framed and proceed in the same manner. It seems that it may be held good as to the revivor, and bad as to the supplemental matter. All parties to the original bill should be made parties to a bill of revivor and supplement, although a revivor is sought against but one defendant.7 A § 185. Supplemental Bills in the Nature of Bills of Revivor.supplemental bill in the nature of a bill of revivor is a bill filed to cure an abatement when the person by or against whom the 8 Metal Stamping Co. v. Crandall, 18 Off. Gaz. 1531. 2 Daniell's Ch. Pr. 1721; Story's Eq. Pl. § 386. 3 Norton v. Hepworth, 1 Hall & Tw. 158; Dunn v. Clarke, 8 Pet. 1, 2. See § 96. 4 Daniell's Ch. Pr. 1720, 1721; Rule 56. 5 Grew v. Breed, 12 Met. (Mass.) 369. § 184. Mitford's Pl. ch. 1, § 2; Story's Eq. Pl. §§ 387, 627; Daniell's Ch. Pr. (2d Am. ed) 1722, 1723. 2 Westcott v Cady, 5 J. Ch. (N. Y.) 334, 342. Bampton v. Birchall, 5 Beav. 330; 8. c. on appeal, 1 Phil. 568. 5 Mitford's Pl. ch. 1, § 3; Story's Eq. Pl. §§ 387, 627; Daniell's Ch. Pr. 1722, 1723; Pendleton v. Fay, 3 Paige (N. Y.), 204. Randolph v. Dickerson, 5 Paige (N.Y.), 517. But see Bampton v. Birchall, 5 Beav. 330; s. c. on appeal, 1 Phil. 568. 7 Lake v. Austwick, 4 Jur. 314. suit is to be continued, although claiming under the individual whose death caused the abatement, is not the representative whom the law allows to be recognized, but is one whose title could not have been litigated in the English Court of Chancery, but might have been disputed before another tribunal.1 It has also been held that where during the pendency of a suit a trustee died, and the court appointed a successor to him, the new trustee could only be brought in by a supplemental bill in the nature of a bill of revivor.2 Upon the death of an assignee in bankruptcy or insolvency his successor is brought in by a bill of this character.3 Sueh a bill, however, although designated as being in the nature of a bill of revivor, is neither more nor less than a supplemental bill.* § 186. What renders a Suit defective. If, after the institution of a suit in equity, a person who is a necessary party thereto comes into being, or any other event occurs, which, without abating the suit, occasions such an alteration in the interest of any of the original parties, or gives any person not a party such an interest therein, as makes it necessary that the change of interest shall be brought to the attention of the court, and the person not already a party brought before it, the suit is said to become defective. The circumstances causing the change of interest must then be alleged, and the new party brought in by a supplemental bill, or a bill in the nature of a supplemental bill.2 An assignment, whether voluntary or by operation of law, during the pendency of a suit, of the whole or a part of a party's interest therein, does not make the suit defective, nor affect the rights of the other parties, since the assignee takes the same rights and is subject to the same obligations as his assignor, and is equally bound or benefited by the decree. The assignee need not, therefore, be made a party,5 unless the assignment disables the assignor from performing the decree of the court, when he should be brought before it; but he may at any time be brought in at his 6 § 185. 1 Daniell's Ch. Pr. (2d Am. ed.) 1721. 2 Greenleaf v. Queen, 1 Pet. 138, 148. Daniell's Ch. Pr. (2d Am. ed.) 1721. Daniell's Ch. Pr. (2d Am. ed.) 1721. § 186. 1 Jones v. Jones, 3 Atk. 217; Mitford's Pl. ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1663. 2 Jones v. Jones, 3 Atk. 217; Mitford's Pl. ch. 1, § 3; Daniell's Ch. Pr. (2d 3 Ex parte Railroad Co., 95 U. S. 221. 5 Eyster v. Gaff, 91 U. S. 521; Ex parte Railroad Co., 95 U. S. 221. 6 Daniell's Ch. Pr. (2d Am. ed.) 1664. |