§ 1. Where a bill against several defendants is retained, with liberty CH. XXXIII. for the plaintiff to bring an action against one of them, the trial may take place during an abatement occasioned by the death of where a trial another defendant, provided such other is not directed by the decree to attend the trial, in which case a trial before the suit is revived against such defendant will be irregular. at Law has been directed. vivor. Where the abatement of a suit is total, an order to revive places Effect of rethe suit and all the proceedings in it in precisely the "same plight, state, and condition that the same were in at the time when the abatement took place,"1 and the new plaintiff may take the same proceedings in the cause that the original plaintiff might have done, thus the plaintiff in a revived suit may amend the original bill, and issue an attachment against the defendant for not answering the amended bill. So also, the new plaintiff may prosecute process of contempt against the defendant, taking it up where it left off at the abatement; and if a process has been issued before the abatement, it will be revived by the order to revive.* The case is different where the abatement is occasioned by the death of a defendant; in such case, the process being personal, cannot be revived. In general, however, where an abatement is occasioned by the death of a defendant, the order to revive against the representatives of such defendant 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. It will be necessary still to refer to a distinction which existed under the old practice, and which, though now nearly obsolete, will, in some cases, be necessary to an accurate comprehension of the existing practice. A bill of revivor, properly so called, applied only in cases where a death intervened, and it was necessary to bring the proper representatives, whether real or personal, of the deceased party, before the Court; or where, by reason of the marriage of a female plaintiff, her rights were so modified that the suit could not be carried on by herself alone, but her husband became a necessary party." In each of these cases there was no other fact to be ascertained, 1 Gregson v. Oswald, 1 Cox, 343. 2 Ante, p. 1540; Story Eq. Pl. §§ 342, 376; Peer v. Cookerow, 1 McCarter (N. J.), 361; Benson v. Wolverton, 1 C. E. Green, 110. It is still the same suit, in which both parties are entitled to the benefit of all former proceedings. No answer is required, if the bill has already been answered, unless a discovery of assets is desired; the depositions of witnesses, if any have been taken, may be read; and if the cause has proceeded to final decree, it will remain in force against the new 8 Ld. Red. 78; Philips v. Darbie, 1 Dick. 4 Hyde v. Forster, 1 Dick. 134. Where abate by death of defendant. ment caused CH. XXXIII. than whether the new party brought before the Court had the § 1. character imputed to him. If he had, the revivor was of course:1 but there were many cases, in which there were other facts which might be brought into litigation, besides the mere question of the character of the new party; and to such cases, therefore, the simple bill of revivor did not technically apply. Under such circumstances, an original bill in the nature of a bill of revivor was the appropriate process to bring these facts before the Court, and to put the original proceeding again in motion, and enable the new party to have the benefit of the former proceedings.2 Difference between original bills and bills in the nature of supplemental bills. By whom bills in the of revivor With respect to the cases where the plaintiff after filing a supplemental bill was entitled to the benefit of the former proceedings, reference must be had to the former practice, from whence it appears that there might be this difference between an original bill in the nature of a bill of revivor and an original bill in the nature of a supplemental bill: upon the first, the benefit of the former proceedings was absolutely obtained; so that the pleadings in the first cause, and the depositions of witnesses, if any had been taken, might be used in the same manner as if filed or taken in the second cause; and if any decree had been made in the first cause, the same decree shall be made in the second: but in the other case a new defence might be made; the pleadings and depositions could not be used in the same manner as if filed or taken in the same cause; and the decree, if any had been obtained, was no otherwise of advantage than as it might be an inducement to the Court to make a similar decree. A bill in the nature of a bill of revivor could not be brought, nature of bills except by some person who claimed in privity with the plaintiff in the original bill: thus, for example, if a bill was filed by a devisee under a will, and afterwards a subsequent will was proved, by which the same property was devised to another devisee; in such may be brought. 1 Peer v. Cookerow, 1 McCarter (N. J.), 361, 365; Story Eq. Pl. § 877. 2 Ld. Red. 70, 97; Prac. Reg. 90, 91; Story Eq. Pl. §§ 377, 878; Brady v. McCosker, 1 Comst. 214; Welch v. Lewis, 31 Ill. 446; Peer v. Cookerow, 1 McCarter (N. J.), 361, 365; Story Eq. Pl. §§ 877, 378. Whenever a plaintiff has a right to revive a suit, he may add to the bill of revivor such supplemental matter as is proper to be added. Pendleton v. Fay, 8 Paige, 204; Manchester v. Mathewson, 2 R. I. 416. A bill of revivor and supplement is merely a compound of these two species of bills. Such a bill not only continues a suit that has abated, but supplies any defects in the original bill arising from subsequent events. Westcott v. Cady, 5 John. Ch. 242. It must be framed and proceeded upon in the same manner as the two species of bills of which it is compounded. Ld. Red. 80. And the same defences are applicable, that would be, if they were separate. Lake v. Austwicle, 4 Jurist, 314. If matters contained in a bill of revivor and supplement are irrelevant or improper, the defendant may take advantage of the objection either by plea or by demurrer, or by exceptions for impertinence. Pendleton v. Fay, 8 Paige, 204. But the insertion of supplemental matter in a bill of this nature will not authorize the defendant to demur to the whole bill. He should demur to the supplemental matter only. Randolph v. Dickerson, Paige, 517; see Pendleton v. Fay. 8 Paige, 204; Eastman v. Batchelder, 36 N. H. 141. 3 Ld. Red. 72, and see ante, p. 1518. 4 Story Eq. Pl. § 385; see ante, p. 1508, note. a a case, the latter devisee could not, by a bill in the nature of supplemental bill, avail himself of the proceedings in the original suit; for there was no privity between the plaintiff in the original suit, and the plaintiff in the supplemental bill; 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 has already filed such a bill; for he derives his title solely from the devisor, independently of the first devisee.1 CH. XXXIII. § 1. The material distinction as to the right to the benefit of the Present pracformer proceedings will remain under the existing practice, though tice. the technical distinction as to the names of the different bills will probably not be regarded hereafter; and in all the cases in which, under the former practice, an original bill in the nature of a bill of revivor might have been filed, the same benefit may now be obtained by a simple order to revive. 1 Oldham v. Eboral, Coop. Sel. Ca. 27; Rylands. Latouche, 2 Bligh, 585; Tonkin v. Lethbridge, Coop. Rep. 43. Where a bill in the nature of 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, CHAPTER XXXIV. Nature of a cross-bill. Where necessary. FRAME AND END OF CERTAIN KINDS OF BILLS. SECTION I.-Cross-Bill, and Interrogatories for the examination of Plaintiffs. A CROSS-BILL is a bill brought by a defendant against the plaintiff (and, if necessary, other parties), in another suit, touching the same matter.1 It frequently happens, that a complete decree cannot be made without a cross-bill, or cross-bills, to bring the whole matter in dispute completely before the Court. In such a case, it becomes necessary for some or one of the defendants to the original bill to file a bill against the plaintiff, and, if necessary, other defendants to that bill, or some of them, and bring the litigated point properly before the Court.2 1 Ld. Red. 81; Moss v. Anglo-Egyptian Nav. Co., L. R. 1 Ch. Ap. 108; 12 Jur. N. S. 13 L. C.; Story Eq. Pl. §§ 389, 402; White v. Buloid, 2 Paige, 364. It is treated as an auxiliary suit; or as a dependency upon the original suit; Story Eq. Pl. §399; Slason v. Wright, 14 Vt. 208; Cross v. De Valle, 1 Wallace U. S. 1; and can be sustained only on matter growing out of the original bill. Daniel v. Morrison, 6 Dana. 186; Crabtree v. Banks, 1 Met. (Ky.) 482; Slason v. Wright, 14 Vt. 208; Rutland v. Paige, 24 Vt. 181; Galatian v. Erwin, Hopk. 48, 49; S. C. 8 Cowen, 561. New parties cannot be introduced into a cause by a cross-bill. Curtis J. in Shields v. Barrow, 17 How. U. S. 145; see Lardner v. Ogden, 31 Miss. (2 George) 332. But a purchaser, pendente lite, from a party to a suit, may file a bill in the nature of a cross-bill, to make himself a party to the suit, so as to have his rights protected. Whitbeck v. Edgar, 2 Barb. Ch. 106. So where a junior mortgagee, who is party defendant to a suit for foreclosure of a prior mortgage, seeks relief upon crossbill against a sale made by the prior mortgagee, pending the suit, under a power of sale contained in his mortgage, the purchaser, under such prior mortgage, is an indispensable party to the cross-bill. Hurd v. Case, 32 Ill. 45; see Jones v. Smith, 14 Ill. 229. The cross-bill need not refer to the original suit; it is sufficient, if the subject-matter is the same. Falkland Islands v. Lafone, 3 W. R. 499, M. R.; ib. 561, L. JJ. As to cross-bills, see Adams on Eq. 402; Coop. Eq. Pl. 85; Harr. by Newl. 81; Story Eq. Pl. 389; Welford Eq. Pl. 223; and for forms of such bills, see 1 Van Hey. 361; Willis Eq. Pl. 357, 364; and Vol. III. 2 There should be as little delay as possible in filing a cross-bill. When such a bill is necessary, the proper time for filing it is at the time of putting in the answer to the original suit, and before the issue is joined by filing the replication. And as the matters of defence, upon which a cross-bill is founded, must be stated in the answer to the original suit, as well as in the cross-bill, it can seldom be necessary to delay filing the cross-bill till after the original cause is at issue. 1 Smith Ch. Pr. (2d Am. ed.) 460; Irving v. De Kay, 10 Paige, 319, 322; see Cartwright v. Clark, 4 Met. 110, 111. If the cross-bill is not filed before or at the time of answering in the original suit, the delay must be accounted for, or the proceedings will not be stayed. White v. Buloid, 9 Paige, 164; see Irving v. De Kay, 10 Paige, 319, 322; Josey v. Rogers, 13 Geo. 473. In Cartwright v. Clark, 4 Met. 104, it was held, that, as a general rule, a crossbill must be filed before publication of the A cross-bill should state the original bill, and proceedings there- CH. XXXIV. § 1. on, and the rights of the party exhibiting the bill which are necessary to be made the subject of cross-litigation, or the ground on Form. which he resists the claims of the plaintiff to the original bill, if that is the object of the new bill. But a cross-bill being generally considered as a defence, or as a proceeding to procure a complete determination of a matter already in litigation, the plaintiff is not, at least as against the plaintiff to the original bill, obliged to show any ground of equity to support the jurisdiction of the Court. evidence in the original suit, unless the plaintiff in the cross-bill will go to the hearing upon the proofs already published. See also to the same point and effect, Field v. Schieffelin, 7 John. Ch. 252; Gouverneur v. Elmendorf, 4 John. Ch. 357; Sterry v. Arden, 1 John. Ch. 62; White v. Buloid, 2 Paige, 164; Story Eq. Pl. § 395. In Jackson v. Grant, 3 C. E. Green (N. J ), 145, leave to file a cross-bill was granted on petition after the time limited in the rule to close testimony. Generally, unless directed by the Court, a cross-bill cannot be filed after the hearing on the original bill. Roberts v. Peavey, 29 N. H. 392. But if a creditor, who has come in under a decree in favor of creditors against a debtor, should require relief, for the purpose of assisting the investigation of demands affecting the estate, before the Master, which relief cannot be obtained under the original bill, or by a rehearing, he may, even without the direction of the Court, file a cross-bill for the purpose: Latouch v. Dunsany, 1 Sch. & Lef. 137; for he might not have had an opportunity, at an earlier stage of the proceedings, of presenting his case and his objections. Story Eq. Pl. § 397. 1 Story Eq. Pl. § 401; see Allen v. Allen, 14 Ark. (1 Barb.) 666; Barker v. Belknap, 89 Vt. 168, 172. A cross-bill is prepared and signed by counsel, and engrossed and filed, in the same manner as an original bill. 1 Smith Ch. Pr. (2d Am. ed.) 461. There cannot be a cross-bill in a State Court to an original bill pending in the Circuit Court of the United States. If any cross-bill is wanted in such a case, it should be brought in the same Circuit Court in which the original bill is depending, as it is not an original but an ancillary suit. Story Eq. Pl. § 400. Whenever a cross-bill is brought against co-defendants in a suit, the plaintiff in such suit must be named a defendant together with them. Coop. Eq. Pl. 85. 2 Kemp v. Mackrell, 8 Atk. 812; Field v. Schieffelin, 7 John. 252; Galatian v. Erwin, Hopk. 48; S. C. 8 Cowen, 361; Cartwright v. Clark, 4 Met. 194; Nelson v. Dunn, 15 Ala. 201. No decree can be founded upon new and distinct matters introduced by a crossbill, which were not embraced in the original suit. May v. Armstrong, 3 J. J. Marsh. 262; Daniel v. Morrison, 6 Dana, 186; Galatian v. Erwin, Hopk. 48; S. C. 8 Cowen, 361; Field v. Schieffelin, 7 John. Ch. 252; Josey v. Rogers, 13 Geo. 478; Andrews v. Hobson, 23 Ala. 219; Gouverneur v. Elmendorf, 4 John. Ch. 357; Griffith v. Merritt, 19 N. Y. 529; Story Eq. Pl. § 631. But the cross-bill is not restricted to the issues of the original bill. Nelson v. Dunn, 15 Ala. 201. 8 Ld. Red. 81; Powell v. Hall, 3 De G. & S. 456; Cockrell v. Warren, 14 Ark. (1 Barb.) 346; Cartwright v. Clark, 4 Met. 104; Story Eq. Pl. § 399; Nelson v. Dunn, 15 Ala. 501; Moss v. Anglo-Egyptian Nav. Co., L. R. 1 Ch. Ap. 108, 112; 12 Jur. N. S. 13 L. C. Want of equity is no defence to a crossbill brought forward by way of defence. Lambert v. Lambert, 52 Maine, 544. The plaintiff in the original suit should answer rather than demur to the cross-bill. Lambert v. Lambert, ubi supra. But where on the face of the cross-bill there is no equity, leave to the plaintiff to dismiss the original bill cannot prejudice the defendant. Jacoway v. McGarrah, 21 Ark. 847. And, if the cross-bill seeks relief, it is indispensable that it should be equitable relief, otherwise the bill will be demurrable; for, to this extent it is not a pure cross-bill; but it is in the nature of an original bill, seeking further aid of the Court, beyond the purposes of defence to the original bill; and under such circumstances, the relief should be such, as in point of jurisdiction the Court is competent to administer. Story Eq. Pl. §§ 898, 629; Coop. Eq. Pl. 86; Ld. Red. 81, and note; Calverley v. Williams, 1 Ves. J. 211, 213; Moss v. Anglo-Egyptian Nav. Co., L. R. 1 Ch. Ap. 108, 112; 12 Jur. N. S. 13 L. C. A cross-bill will also be open to a demurrer, when it seeks relief, which is of an equitable nature, and does not contain all the proper allegations, which confer an equitable title to such relief upon the party. Thus, a demurrer was allowed to a crossbill to have usurious securities delivered up, because it did not offer to pay the sum really due. Story Eq. Pl. § 630; Mason v. Gardiner, 4 Bro. C. C. (Perkins's ed.) 436; see Coop. Eq. Pl. 215; Benfield v. Solomons, 8 Ves. 84. Such a bill will also be open to demurrer, if it is filed contrary to the practice of the Court, and |