made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause.

Rule 30.

If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made.

Rule 57.

Whenever any suit in equity shall become defective from any event happening after the filing of the bill (as, for example, by change of interest in the parties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule-day upon proper cause shown and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead, or answer thereto on the next succeeding rule-day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court.

Rule 60.

After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be re-sworn, at any time before a replication is put in, or the cause is set down for a hearing upon bill and answer. But after replication, or such setting down for a hearing, it shall

not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original statements, except by special leave of the court, or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by affidavit; and in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom.

Rule 56.

Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time; and, upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule-day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course.

Rule 58.

It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it.

PARKHURST v. KINSMAN.

(Circuit Court for New York : 2 Blatchford, 72-76. 1848.) STATEMENT OF FACTS.-Application for leave to file a supplemental bill making Goddard a party and adding new charges against Kinsman, based partly on recent facts and partly on newly-discovered evidence. Notice having been

served on Kinsman and Goddard, both opposed the application on grounds that will appear sufficiently in the opinion of the court. The original bill was founded on an agreement between the plaintiff and Kinsman, which, upon certain conditions, gave to the latter the right to use the former's patent. There had been a provisional injunction, however, forbidding any further making or selling of the machines.

Opinion by BETTS, J.

It seemed to be supposed on the argument, by the counsel for the defendant, that the supreme court in requiring, by rule 57, notice to be given on an application for leave to file a supplemental bill, had put the petition upon the footing of the bill itself when filed, and that the application could be defeated by showing that the petition did not make a case establishing the propriety of the bill, and the legal liability of the party sought to be brought in, to the remedy sought by the suit. Such, however, is not the effect of the rule. It does not essentially change the practice as it before existed. In England and in this state supplemental bills were allowed to be filed only by leave of the court (Dan. Ch. Pr., 1655, Am. ed., and notes; Eager v. Price, 2 Paige, 333; Lawrence v. Bolton, 3 id., 294); and the court, in addition, frequently ordered notice to be given of the application. Eager v. Price, 2 Paige, 333. The design of notice is to avoid precipitation and a needless accumulation of pleadings. But the court inquires no further than to see whether probable cause exists for the new proceeding. The petition, accordingly, need not embrace the averments intended to be inserted in the supplemental bill, but need only advise the opposite party and the court of the ground on which the relief is applied for. The court may, therefore, deny leave to file a supplemental bill, and yet permit an amendment of the original bill; and this ability to shape and abridge the pleadings may be the reason of the practice which requires the assent of the court to the filing of a supplemental bill. In my opinion, then, all that the court looks to on motions of this description is to see that the plaintiff states facts or circumstances which, if properly pleaded, would sustain a supplemental bill.

The allegations in the petition in regard to Goddard would undoubtedly be insufficient as averments in a supplemental bill, but they embrace matters which, if well pleaded, inay charge him as a party to the suit. The court will not decide

this motion on the technical rules applicable to a demurrer. The petition is sufficiently definite in charging that Goddard has become connected with the subject-matter of the suit against Kinsman since the original bill was filed, and is, in that connection, doing those acts in relation to the interests of the plaintiff which this court, by injunction, has restrained Kinsman from doing; and that is, in substance, sufficient, according to all the authorities, to authorize the plaintiff to bring Goddard before the court in the same suit to answer for his proceedings. On these points the plaintiff is entitled to a discovery from Goddard. It is a mistake to construe the petition as setting up, as the ground of complaint, an independent infringement by Goddard of the plaintiff's rights under his patent. Its bearing and manifest intent is to charge on Goddard a combination with Kinsman, and an acting in concert with him to defeat the right the plaintiff has to restrain Kinsman on the equities of the original bill. It is enough, on this motion, to allege such concert and combination on information and belief, whether such a charge would or would not be sufficient in the bill itself. The leave prayed for must, therefore, be granted in respect to Goddard.

Most of the matters sought to be inserted in the supplemental bill in respect to Kinsman would be proper subjects of amendment to the original bill, and could not lay the foundation for a supplemental bill. 1 Hoff. Ch. Pr., 393, 398; Story's Eq. Pl., § 333. But, as a discovery is sought from Kinsman in regard to particulars not stated in the original bill, and an answer to that has been already put in by him, the course of practice will justify the filing of a new bill. Mitf. Pl., 62, 3d Amer. ed., 99, and note.

The laches imputed to the plaintiff, in not pushing forward his suit since Kinsman's plea and answer were put in, might perhaps call for a fuller excuse, before the court would allow the plaintiff to change the issues by, amending the original bill. Even then, however, the objection would not stand upon the ground of any essential injury to the defendant to arise from permitting such amendment, for it is not shown that any proofs have been taken by either party under the issues, or that the defendant has availed himself of his privilege under our practice of speeding the cause. But a supplemental bill may be filed at any stage of a cause, even after decree rendered (Story's Eq. Pl., § 338), and the nature of the present

litigation would induce the court to lend all reasonable aid to have every dispute between the parties in respect to their rights as involved in it definitively settled, and to leave nothing to be called up and pursued hereafter. Upon these considerations I shall authorize the supplemental bill to be filed as prayed for, with the insertion, as against Kinsman, of the allegations referred to in the petition, and which might not, if brought forward by themselves, justify more than an order for amendment.

LONGWORTH v. TAYLOR.

(Circuit Court for Ohio: 1 McLean, 395-410. 1838.)

Opinion of the COURT.

From the supplementary bill lately filed it appears a part of the lot in controversy was sold by the complainant to Canby, and that he assigned his interest to Carneal; and this equity being still in Carneal, it is objected that he is not made a party to the suit. Is Carneal interested in this controversy? It is admitted that he might file his bill against Taylor, and set up his equity through his assignees; and if he may do this, is he not interested in the subject-matter of the bill? Is not the court called upon to act on an equitable title which includes the title of Carneal? And if he be not a party to the suit, will his rights be concluded by the decree?

It is true he may look to the complainant for a deed, but is he not the assignee of the plaintiff to the extent of the equity he claims? The supreme court has decided that an assignee in equity must make his assignees a party when he asks a specific execution of the contract; and this is required to be done that the court may see that the rights of the assignor are duly protected. But how much stronger is the reason to make the assignee of the equity a party on a bill filed by the assignor. The interests of the assignee are directly involved, and how can these be protected unless he be made a party to the suit?

Carneal may have some special ground of equity against Taylor which the plaintiff has not, and a decree in the case, as it now stands, would not prevent him from setting up this equity hereafter. And if the defendant may be again harassed with the assertion of a right which is necessarily involved in this suit, he may well object to the further progress of the suit until Carneal shall be made a party, if, under the