CHAPTER IV.

OF AMENDED BILLS AND BILLS OF REVIVOR AND SUPPLEMENT.

Occasions of Amending a Bill-Order to Amend-Amending Bill before Answer-After Answer-After ReplicationCosts of Amendment-When fresh Subpoena is necessaryCompelling Answer to Amended Bill-Abatement of Suit and Bill of Revivor-When death of a party abates a Suit and when not-The Cases in which a Bill of Revivor is most frequently necessary-Death-Marriage-Bankruptcy -Insolvency-Outlawry-By whom Bill of Revivor may be filed-How the Right to Revive contested-Order to Revive-Supplemental Bill-Proceedings on it-Difference between Bill of Revivor and Supplemental Bill-Bill of Revivor and Supplement-The Proceedings on such a Bill.

Ir constantly happens that a plaintiff, after he has filed his bill, either from a discovery by himself of facts of which he was not before aware, or of something either disclosed or asserted in the defendant's answer, finds that his case is defectively stated in the bill, or that it can be more advantageously stated, and, consequently, an amendment of the bill becomes necessary; when this is so, an order is obtained giving the plaintiff leave to make the amendment, and the plaintiff must make the amendment within a certain time from the date of it.

Where a bill is amended it must always be done with the sanction, and must bear the signature of counsel, and if this be omitted it is said the amended bill may be demurred to.

Until the defendant has put in his answer the plantiff may amend his bill as often as he is advised, but after an answer has been filed, he is, as a matter of

course, entitled to one order for leave to amend the bill; this order must be obtained before replication, or undertaking to reply, and within four weeks (in which vacation does not count, ante, p. 19) after the answer, if there be but one defendant, or after the last of the answers, if there be more defendants than one, is to be deemed sufficient, (as to which, see ante, pp. 19, 20); this, however, does not extend to amendments which are made only for the purpose of rectifying a clerical error, or error in names, dates, or sums, in which cases a further order to amend may be obtained without notice. If a further amendment in the bill be necessary after answer, and after having obtained the one order, the plaintiff must make a special application to the Master, on an affidavit, to his satisfaction, that the draft of the proposed amendments has been settled, approved and signed by counsel, and that such amendments are not intended to be made for the purpose of delay or vexation, but because the same are considered to be material for the case of the plaintiff; this affidavit must be made by the plaintiff, or one of the plaintiffs, and his, her, or their solicitor, or by the solicitor alone, in case the plaintiff or plaintiffs, from being abroad or otherwise, are unable to join therein, and in that case the reason why the plaintiff does not join must appear from the solicitor's affidavit. After a replication has been filed, or an undertaking to reply given, or after the expiration of the four weeks, the plaintiff will not be permitted to amend the bill without special application to the Master for that purpose, of which notice has been given by warrant in the usual the Master being satisfied by affidavit of the plaintiff and his solicitor, or the solicitor alone if plaintiff cannot join, that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill. The decisions of the Master on these applications may be appealed from if either party think it worth while, but when the matter comes before the Court on such

way,

appeal, no other affidavits can be used than those

which were used before the Master, and others if tendered would be rejected.mle

二

Before the defendant has appeared the plaintiff may amend his bill without paying costs; it may also be amended without payment of costs after appearance, unless the amendments are such as to require a new ingrossment, and also after answer where the plaintiff does not require a further answer from the defendant; also if the Master have reported · the answer insufficient, or if the defendant have submitted to answer exceptions, the plaintiff may amend his bill without costs, his solicitor in these cases amending the defendant's office copy of the bill; in other cases the plaintiff pays costs of amending, which are not however taxed costs, but a fixed sum of 20s.; if, however, the plaintiff amends after a plea or demurrer is filed and set down, he must pay taxed costs in those cases where the plaintiff must pay the 208. costs on amending, he must, where a new ingrossment is necessary, or where a further answer is required, pay that sum to each set of defendants appearing by different solicitors; there may, however, be cases in which the Master or the Court will order the plaintiff to pay costs beyond the 208., as where the amendment renders a portion of the bill as originally filed useless, and the facts were within his knowledge when the bill was first filed. Where the bill is not re-ingrossed, the plaintiff's solicitor amends the original record and the defendant's office copy of the bill, but where it is re-ingrossed the defendant takes a fresh office copy.

Where the plaintiff in an injunction cause has obtained the common injunction to stay proceedings at law, he may (either before or after the answer of the defendant is put in, and whether the injunction has or has not been continued to the hearing of the cause) obtain an order, as of course, for leave to amend the bill without prejudice to the injunction, but he must amend the bill within one week after

the date of the order, and in default thereof the order becomes void. And in case the bill is amended pursuant to the order, the defendant is thereupon, and although he may not have put in his answer to the bill or the amendments thereof, at liberty to move the Court, on notice, to dissolve the injunction, on the ground that the bill as amended does not, even if the amendments be true, entitle the plaintiff to the injunction. Where there is no injunction, the plaintiff must amend his bill within fourteen days from the date of the order, or the order becomes void.

In case an injunction to stay proceedings at law is prayed for by the bill, and either has not been obtained, or having been obtained, has been dissolved upon the merits stated in the answer, and the plaintiff afterwards amends his bill, if the defendant does not plead answer or demur to the amended bill within eight days after appearance, the plaintiff is entitled to move for an injunction, upon affidavit of the truth of the amendments.

Where a plaintiff amends his bill before answer, no fresh subpoena is necessary; but where the amendment is made after answer, and a further answer is required, a subpoena must be issued. Personal service, however, is not necessary, service on the defendant's solicitor being sufficient; but if new defendants are added by the amendment, it is an original bill as to them, and the service of the subpoena on them must be as in ordinary cases. As to the time allowed to answer an amended bill, see ante, pp. 10, 11. If the defendant does not answer an amended bill within the time allowed, the same consequences follow as in ordinary cases.

A suit in equity may abate by the death of parties, or by their marriage, bankruptcy, or insolvency, and, where this happens, it is necessary to revive the suit by filing a bill, which is called a bill of revivor. Sometimes a bill of revivor and supplement is required.

It is not, however, in all cases, that the death of a party abates the suit: for it is a general rule, that

wherever the right of the party dying survives to his co-plaintiff or co-defendant, and the cause is in the same condition after the party's demise as it was before, the suit does not abate, and, consequently, there is no need to revive it, because no other person is necessary to be brought before the Court, nor is any other person necessary to be made a party to the complaint. The case of joint-tenants will illustrate this; for where two plaintiffs or two defendants are joint-tenants, and one of them dies, his interest survives to the other, and does not go to a stranger to the suit, and, consequently, the suit is in no way defective. The same thing holds where the interest of a party dying is altogether determined and at an end. But where the right does not so survive, but goes to some one not a party to the suit, there the suit must be revived; because there will not be proper parties, unless those who take the interest of the deceased person are before the Court. The case of tenants in common is an illustration of this; as where two plaintiffs or defendants are tenants in common and one dies, his interest does not survive to his co-tenant, but goes to a stranger to the suit, who must therefore come or be brought before the Court. It is true that the other tenant in common may happen to be the party to whom the interest survives, (as where he is the heir,) and then a revival would not be necessary, but that would only be an accidental case.

It may be useful to point out the particular cases in which a bill of revivor is most frequently necessary; but one or two of these must be understood as being qualified by the rule which has been mentioned, as to the parties' interest surviving to a coparty.

A suit abates by the death of a sole plaintiff, and his heir or personal representative (according as his interest in the subject-matter of the suit goes to the one or the other) may revive the suit; but if the heir or representative do not choose to do so, the defend