2 ant to such a bill.' He will come before the court in the same plight as that of the bankrupt, and will be bound by all the prior proceedings in the case. A supplemental bill is also a proper one to be filed against a stranger to the original bill, where he has conspired with the original defendant to infringe the patent in suit after the original defendant was enjoined from doing so himself.” And such a bill is proper, where a patent is extended after the filing of the original bill, if the defendant continues to infringe the patent after the extension is granted.* The same reasons which support the latter rule, will also support a supplemental bill based on a new patent covering some feature of those doings of the defendant which also infringe the patent originally sued upon; and will also support such a bill where the defendant so changes the character of his doings pendente lite as to make them infringe some other patent of the complainant, as a part of the same acts that constitute infringements upon the patent upon which the original bill was based. But a good title, acquired after the filing of an original bill, cannot be brought into a case by a supplemental bill, to take the place of the bad title stated in the original bill.* § 626. A bill in the nature of a supplemental bill is called for, where the original bill was filed by a person in his own right, whenever that right passes to another person by voluntary assignment, or passes from the complainant to his assignee in bankruptcy or insolvency. This rule ap plies not only to cases where the entire right of a sole complainant is thus transferred pendente lite, but also to cases where the the right of one of several complainants is so transferred, and to cases where a part only of the right of 1 Sedgwick . Cleveland, 7 Paige (N. Y.), 290, 1838. 2 Mitford & Tyler's Equity Pleading, 166. * Parkhurst v. Kinsman, 2 Blatch. 72, 1848. 1874. Reedy v. Scott, 23 Wallace, 352, 5 Emerson v. Hubbard, 34 Fed. Rep. 327, 1888. Story's Equity Pleading, Section 349. a sole complainant is made the subject of a voluntary assignment after the filing of the original bill.' § 627. A bill of revivor is the proper means of reviving and continuing an action in equity for infringement of a patent, which has abated by reason of the death of one or more of the parties thereto. It is to be brought by or against the executor or administrator of the deceased party, and not by or against his heirs.' When such a bill is filed, if the facts warrant him in so doing, the defendant may file a plea denying that the person who filed the bill was entitled to do so,' or interposing some statute of limitation applicable to bills of revivor. There is no Federal statute of that kind, but it is not improbable that the relevant statutes of the several States are applicable to bills of revivor in Federal courts." Those State statutes are of many species. In some, the limitation begins to run from the death of the deceased complainant; and in others, from the time his death is suggested in the case; and in others, from the time when a scire facias to revive is served on the person entitled to revive. The length of the limitation also varies in the different States. Perhaps the shortest time is six months, and the longest eighteen. Where a bill of revivor is filed by the proper person within the proper time, the action will stand revived without any pleading being filed by the defendant.' But where a defendant dies without filing a sufficient answer to the original bill and the amendments thereto, the bill of revivor which is occasioned by his death, ought to pray that the person against whom it seeks to revive the suit, be compelled to answer the original bill and its amendments, or so much thereof as remains unanswered. After an action in 1 Story's Equity Pleading, Section 346. 2 Kirk v. Du Bois, 28 Fed. Rep. 460. 1886. Story's Equity Pleading, Section 354a. 4 Story's Equity Pleading, Sections 829 and 830. 'Story's Equity Pleading, Section 831. Revised Statutes, Section 721. Story's Equity Pleading, Sec. 375; Mitford & Tyler's Equity Pleading, 174. equity has been duly revived, it proceeds in the new form, unaffected by the change of name; and all the testimony theretofore taken may be thereafter used, precisely as if no abatement and revivor had occurred.' § 628. A bill in the nature of a bill of revivor is required where the complainant in the original bill assigned the right of action and the patent upon which it was based, and then died before the assignee took his place in the action, by means of a bill in the nature of a supplemental bill. A bill of the latter sort will not answer the purpose, unless it is filed before the death of the original complainant; because that death will cause an abatement of the suit, and because only bills of revivor, or bills in the nature of bills of revivor, can revive an abated action in equity.' Bills of revivor can be filed only by privies in law, such as executors and administrators; and not by privies in estate, such as devisees and assignees. For the latter class of persons bills in the nature of bills of revivor are available, and by means of such a bill, an assignee who did not file a bill in the nature of a supplemental bill before the death of the original complainant, may draw to himself the benefit of the original action, in whatever stage it may have been at the date of the abatement. Such a bill is also the proper means of reviving an action which has abated at the death of the administrator or executor who was prosecuting it in his representative capacity, if the person entitled to revive represents the original testator or intestate, and not the deceased executor or administrator." 3 $629. A bill of revivor and supplement is merely a compound of a supplemental bill, and of a bill of revivor." It is therefore proper to be filed when either of the facts which justify a supplemental bill and either of the facts which require a bill of revivor, occur in one action. So also, any two or more of the four sorts of bills mentioned in the four last sections, may be united in one bill, whenever either of the facts which require either of those bills, occurs in the same action with any of the facts which require any of the others. 2 § 630. Leave of court is a prerequisite to the filing of supplemental bills, and bills in the nature of supplemental bills; and it is to be obtained upon proper cause shown, and due notice to the opposite party.' But neither bills of revivor nor bills in the nature of bills of revivor require any such order, for they may be filed in the clerk's office at any time. The reason of this difference is that neither of the last two kinds of bills are useful except in cases of death. There can be no temptation to file such a bill as either, unless a death has occurred among the parties to the action; and where such a death has occurred, there can be no objection to the filing of one or the other. But the first two sorts of bills are based upon events about the true character of which counsel may be mistaken in any given case, and it is therefore necessary, in order to avoid an improper accumulation of pleadings, that the court should pass upon the propriety of such bills before they are filed. § 631. No demurrer plea or answer is ordinarily required to be filed to a bill of revivor, or to a bill in the nature of a bill of revivor.' But defendants are always required to demur, plead, or answer to supplemental bills, and to bills in the nature of supplemental bills. Where a bill of either of those kinds shows on its face that the person who filed it was not a proper person to do so, the objection may be made by a demurrer,' and when that fault exists, but does not appear on the face of the bill, the defence grounded upon it may be made by a plea. Other defences can be made to supplemental bills, or to bills in the nature of supplemental bills, in the same forms and in the same circumstances in which corresponding defences can be made to original bills for infringement.' § 632. The hearing of an action in equity for infringement of a patent, may take place before one of the judges of the court sitting alone, or before several judges sitting together, or before a judge and a jury,' or before a master in chancery.' Judges constitute the best tribunals for the purpose; but as either of the other methods of trial may be resorted to at the will of the court, it is expedient to outline the law relevant to all three. § 633. An interlocutory hearing by a judge, in a patent action in equity, is one which occurs after the evidence relevant to the validity of the patent and its infringement by the defendant has been taken, and before the case is referred to a master to take and state an account of profits and damages. The final hearing, which occurs after the master has taken that account and filed his report, generally involves nothing but the correctness of that report, and it therefore may appropriately be treated in the chapter on profits. So also, the preliminary hearing, which occurs when a preliminary injunction is applied for, may properly be discussed in the chapter on injunctions. The interlocutory hearing is generally the pivotal point of a litigation. Where it results in the success of the defendant and consequent dismissal of the bill, it becomes a final hearing. § 634. Questions of law, in equity patent cases, are to be decided according to the relevant rules of law and equity in force in the United States courts. The sources of those rules are the statutes of the United States, and the decisions of the United States Supreme and Circuit Courts, and those decisions of the chancellors of England which were made before the adoption of the Constitution of the United 1 Story's Equity Pleading, Sections 611 and 826. 218 Statutes at Large, Part 3, Ch. 77, Section 2, p. 316. 3 Parker v. Hatfield, 4 McLean, 61, 1845. |