that in a Bill of Discovery, in aid of an action or defence at law, no person should be made a party to the Bill, although he has a substantial interest in the action or defence at law, who is not a party of record in the action; if he should be, the Bill will be demurrable.1

1 Ante, § 226, 541, 544, 569; Glyn v. Soares, 3 Mylne & Keen, 450; Irving v. Thompson, 9 Sim. R. 17, 29; Queen of Portugal v. Glyn, 1 West, H. of Lords R. 258, 276; S. C. 7 Clarke & Fin. R. 466.

CHAPTER XII.

DEMURRERS TO BILLS NOT ORIGINAL.

§ 611. HITHERTO our attention has been limited to the consideration of demurrers to original Bills, either for relief or for discovery only. It is proper, therefore, to add a few words in regard to demurrers to Bills not original. As every other kind of Bill is a consequence of an original Bill, many of the causes of demurrer, which will apply to an original Bill, will also apply to any other kind of Bill.' But the peculiar form and object of each kind of Bill afford distinct causes of demurrer to each; and upon these we shall accordingly proceed to make some remarks.

§ 612. And, first, in regard to demurrers to supplemental Bills, and to Bills in the nature of supplemental Bills. A demurrer to a supplemental Bill, or to a Bill in the nature of a supplemental Bill, may be filed, whenever it appears upon the face of the supplemental Bill, that the plaintiff has no right to file that species of Bill, either from want of title, or from mistake in pleading. Thus, in general, if a Bill is filed by a tenant in tail, who dies, the issue in tail, or the remainder-man in tail, claiming under a new limitation, will be entitled to the benefit of the proceedings had in the suit of the first tenant in tail, by merely filing a supplemental Bill. But where a subsequent remain

2

1 Mitf. Eq. Pl. by Jeremy, 201; Cooper, Eq. Pl. 210.

2 Cooper, Eq. Pl. 212, 213.

3 Ibid.

der-man in tail files such a Bill, if it appears, that the suit by the first tenant in tail was founded upon a contract made by him, and was not, in respect of charges, created by the donor; or, if there is any particular difference in the interests derived from the donum, out of which both estates tail are carved; or, if there are any other special circumstances, under which the estate is held, existing in the case, the subsequent remainder-man in tail will not be permitted to file such a Bill. The case is still stronger against holding such Bill to be sufficient, if the new remainder-man in tail happens to be the defendant, instead of the plaintiff in the suit, and has any special facts to state in addition to, or different from those, which constituted the former defence. In such cases, more especially, the Court will not give to a supplemental Bill the effect of binding him by the shape of the defence already made.2

§ 613. But except in special cases of this sort, a supplemental Bill is maintainable by persons standing in privity of title with the original plaintiff. Therefore, where a decree, in the suit of a feme covert by her next friend against her husband and trustees, had declared a right to a settlement by the husband on her and her children; and the wife died before the Master could make his report; a supplemental Bill being filed by the children to have a provision made for them, the defendants demurred, both on the form, and on the want of merits. But the Court decreed the right of the children to the provision sought; and thought, that if they had such right by the judgment in the former suit, it being subsequent to the institution of the pro

1 Cooper, Eq. Pl. 75, 76, 212, 213.

2 Cooper, Eq. Pl. 74, 213, 214. Such a Bill, though called in Murray v. Elibank, 10 Ves. 83, a supplemental Bill, is, properly speaking, an original Bill in the nature of a supplemental Bill. See Ante, § 345.

ceedings in that suit, they might maintain a supplemental Bill; and, therefore, overruled the demurrer.1

§614. It is a general rule, that the Court will not permit a supplemental Bill to be filed, except upon new matter; because the same end can generally be answered by an amendment of the original Bill. If, therefore, a supplemental is brought upon matter, arising before the filing of the original Bill, where the suit is in that stage of the proceedings, in which an amendment will be allowed, the defendant may demur. And even if a supplemental Bill, upon matter arising subsequent to the filing of the original Bill, is brought against a person, who was not a party to the original Bill, and who claims no interest arising out of the matters in litigation in it, the defendant to the supplemental Bill may also demur; especially, if the supplemental Bill prays, that he may answer the matters charged in the original Bill. So, if a supplemental Bill is brought against a person not a party to the original Bill, praying, that he may answer the original Bill, and no reason is assigned, why he could not be made a party to the original Bill by an amendment, he may demur.5 These, however, are grounds of demurrer, arising rather from the plaintiff's having mistaken his remedy, than from his being without one."

615. Upon another, and a distinct ground, if new facts or events shall have arisen subsequently to the filing of the original Bill, but those new matters are immaterial to the relief sought under the original Bill, or are such, as may come before the Master under the

1 Ibid.

2 Cooper, Eq. Pl. 214; Mitf. Eq. Pl. by Jeremy, 202, 203, 207; Usborne v. Baker, 2 Madd. 387; Baldwin v. Mackown, 3 Atk. 817; Stafford v. Harlett, 1 Paige, R. 200; Colclough v. Evans, 4 Sim. R. 76.

3 Ibid.
EQ. PL.

4 Ibid.

75

5 Ibid.

6 Ibid.

proper decretal order in the original cause, a demurrer will lie. For, if the new facts or events are not material, they are irrelevant; and if material, and yet they are now properly within the reach of the Court, or before the Master under the original cause, there is no ground, why the record should be incumbered with superfluous matter.'

§ 616. Another distinct ground of demurrer is, that the Bill is not properly supplemental; but that it seeks to make a new and different case from the original Bill, upon new matter; for that, in a proper stage of the cause, might be the fit subject of an amendment; or, at all events, of an original Bill. Therefore, if the purpose for which a supplemental Bill is brought, is not properly supplemental to the matters already in litigation between the parties to the original Bill, and in respect to which the relief is sought, a demurrer will lie. Thus, where a Bill was brought against the surviving executors, to have the testator's estate administered according to the trusts of the will; and it impeached certain accounts settled between the defendants and a deceased co-executor; and the plaintiff, without making the representative of the deceased executor a party, went on to a hearing; and a decree was made at the hearing, restricting the account to the receipts of the defendants, and directing, that the

1 Adams v. Dowding, 2 Madd. R. 53; Milver v. Harewood, 17 Ves. 144; Mitf. Eq. Pl. by Jeremy, 63, note (o), 202, note (q); Hare on Discov. 158.

2 Colclough v. Evans, 4 Sim. R. 76; Dias v. Merle, 4 Paige, R. 259. It is proper here to remark, that the case put in the text, is, where the matter is not properly supplemental. For, if the plaintiff, when his cause is in such a state, that he cannot amend his Bill, discovers new matter, which may tend to vary the relief prayed, or to show, that the plaintiff is entitled to the relief prayed, by the original Bill, that is properly the subject of a supplemental Bill. Ante, § 336, 337. Crompton v. Wombwell, 4 Sim. R. 628.