CHAPTER XIV.

BILLS OF REVIVOR, SUPPLEMENTAL BILLS, BILLS OF REVIVOR AND SUPPLEMENT, AND BILLS IN THE NATURE OF THE SAME

§ 174. Abatement. If any event happens after the filing of a bill in equity which makes it necessary to bring in a new party, either plaintiff or defendant, in order to obtain a complete or satisfactory determination of the controversy, the suit will either abate or become defective.1 The abatement or defect must be remedied by the filing of a bill of revivor, a bill in the nature of a bill of revivor, a supplemental bill, a bill in the nature of a supplemental bill, or a bill of revivor and supplement. An abatement takes place by the death of one of the parties, or, where a married woman is under a disability, by the marriage of a female plaintiff. An action entirely abates by the death of any of the plaintiffs: unless his interest therein wholly ceases by his death, or survives to another party to the suit," or he has been previously discharged by a decree in an interpleader suit, or a suit in the nature of an interpleader; when it does not. Formerly a suit abated by the marriage of a female plaintiff; but it may be doubted whether this rule would be followed where a married woman has the same power over her property as if she were single. By the marriage of a female defendant, a suit never abated, though her husband had to he named in all subsequent proceedings.10 When the husband of a female plaintiff died, by

§ 174. Mitford's Pl., ch. 1, § 3. 2 Mitford's Pl., ch. 1, § 3. See infra, § 373, for proceedings at common law.

3 Mitford's Pl., ch. 1, § 3.

4 Mitford's Pl, ch. 1, § 3; Story's Eq. PL., § 354.

5 Daniell's Ch. Pr. (2d Am. ed.) 1698; Mitford's Pl, ch. 1, § 3.

6 Fallowes v. Williamson, 11 Ves. 309; Boddy v. Kent, 1 Mer. 364;

Fisher v. Rutherford, Baldw. 188;
Daniell's Ch. Pr. (2d Am. ed.) 1699.

7 Anon., 1 Vern. 351; Jennings v. Nugent, 1 Molloy, 134; Daniell's Ch. Pr. (2d Am. ed.) 1765.

8 Mitford's Pl., ch. 1, § 3; Story's Eq. Pl., § 354.

9 Lorillard v. Standard Oil Co., 2 Fed. R. 902.

10 Mitford's Pl., ch. 1, § 3; Story's Eq. Pl., § 354. A suit does not abate

the former practice she could at her option continue the suit without filing any bill of revivor; but if she did not, it was considered abated and she was not liable for the costs.11 A suit abates upon the death of a defendant who has appeared so far as proceedings against him or his interest are concerned, and if he were an indispensable party to a decree all proceedings must be suspended till his representatives have been brought in.12 If, however, his interest wholly ceases by his death, or wholly survives to one of the other parties, no revivor will be necessary.13 A suit abates by the death of a member of a firm during a suit against it." The death of a defendant before appearance does not abate the suit. For, according to the former practice, till his appearance, or a decree taken against him pro confesso, there was no cause against him: but a bill had to be filed against his representative, which was an original bill as far as respected the defendant, but a supplemental bill with respect to the suit.15 A suit to enjoin an official act abates when the defendant ceases to be a public officer, and cannot ordinarily be revived against his successor.16 It has been held that the death of a sole defendant to a suit for an injunction against the infringement of a patent and for an accounting, when it occurs before a decree for an account, abates and terminates so much of the suit as seeks an injunction, so that it cannot be revived against his executor, unless it be shown that the latter continues the infringement; " but that the suit may be continued against the personal representative for an accounting of profits and for damages.18 After an

by the marriage of a male defendant, althought it affects real estate. Clark v. Hall, 7 Paige (N. Y.), 382. The coming of age of an infant party does not abate the suit or render it defective unless his interest is thereby charged. Campbell v. Bowne, 5 Paige (N. Y.), 34.

11 Mitford's Pl., ch. 1, § 3.

12 Story's Eq. Pl., § 369; Wright v. Phipps, 58 Fed. R. 552.

13 Mitford's Pl., ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1698, 1699; Story's Eq. Pl., § 357.

14 Wilson v. Seligman (U. S. C. C. S. D. N. Y. 1880), 10 Rep. 651.

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15 Shadwell, V. C., in Crowfoot v. Mander, 9 Sim. 396. See U. S. v. Fields, 4 Blatchf. 326.

16 Warner V. S. Co. v. Smith, 165 U. S. 28.

17 Draper v. Hudson, 1 Holmes, 208; Walker on Patents, § 700.

18 Kirk v. Du Bois, 28 Fed. R. 460; Hohorst v. Howard, 37 Fed. R. 97; Lake Superior I. Co. v. Brown, B. & Co., 44 Fed. R. 539; Head v. Porter, 70 Fed. R. 498; Atterbury v. Gill, 13 Off. Gaz. 276; Smith v. Baker, 1 Ban. & A. 117.

interlocutory decree for an accounting, such a suit may be revived against the personal representatives of the deceased defendant.19 Unless there be some clause in its charter to the contrary, a suit by or against a corporation ordinarily abates by the dissolution of the corporation; 20 but it has been held that the entrance into liquidation and the closing of the business of a national banking association does not abate a suit brought in its name.21 After a decree has been reversed upon appeal, and the cause sent back with a special mandate directing the further proceedings to be taken, or affirmed upon appeal and sent back with a mandate directing its enforcement, it is too late to claim for the first time that the suit has abated by the death of the complainant before the entry of the decree from which the appeal was taken.22

§ 175. Effect of abatement.-"An abatement, in the sense of the common law, is an entire overthrow or destruction of the suit, so that it is quashed and ended. But in the sense of courts of equity, an abatement signifies only a present suspension of all proceedings in the suit, from the want of proper parties capable of proceeding therein. At the common law, a suit, when abated, is absolutely dead. But in equity, a suit, when abated, is (if such an expression be allowable) merely in a state of suspended animation, and it may be revived." the total abatement of a suit the cause is completely suspended while the abatement continues; and, in general, all orders made pending such abatement will be considered nugatory and may be discharged. Applications may, however, be made by

19 Atterbury v. Gill, 13 Off. Gaz. 276.

20 National Bank v. Colby, 21 Wall. 609; Greeley v. Smith, 3 Story, 658; Mumma v. Potomac Co., 8 Pet. 281. But see Lake Sup. I. Co. v. Brown, B. & Co., 44 Fed. R. 539; as to municipal corporations, Hemingway v. Stansell, 106 U. S. 399; Grantland v. Memphis, 12 Fed. R. 287; as to the effect of a consolidation of two corporations, Edison El. L. Co. v. Westinghouse, 34 Fed. R. 232; as to the effect of a State statute upon foreign corporations, Marion Phosphate Co. v. Perry (C. C. A.), 74 Fed. R. 425.

Upon

21 National Bank v. Insurance Co., 104 U. S. 54, 72. The appointment of a receiver does not abate a suit against a national bank. Chemical Nat. Bank v. Hartford Deposit Co., 161 U. S. 1.

22 Ex parte Sory, 12 Pet. 339, 342; Lake Sup. L. Co. v. Brown, B. & Co., 44 Fed. R. 539.

§ 175. Story's Eq. Pl., § 354. See also Hoxie v. Carr, 1 Sumn. 173, 178; Mellus v. Thompson, 1 Cliff. 125, 129.

2 Daniell's Ch. Pr. (2d Am. ed.) 1714; Griswold v. Hill, 1 Paine, 483.

parties affected thereby, to discharge process of contempt issued or executed pending the statement. Applications have,

moreover, been granted during an abatement for the payment of money out of court, when the right thereto had been previously established; for the preservation of the property in dispute; for the punishment of a party for breach of an injunction; and to set aside irregular proceedings pending the abatement. So, too, a decree previously made could be enrolled; and it has been held in England that depositions might be taken under a commission previously issued. Orders previously made continue in force until discharged.10 But the time given a party within which to do a certain act is always suspended by an abatement." Where a preliminary injunction has been previously granted, the court may issue an order requiring that the representatives of a deceased plaintiff revive within a certain time, usually a fortnight after notice, or that the injunction be dissolved.12 No such order will be granted after a decree for a perpetual injunction; for that "would be in effect decreeing a perpetual suit." 13 The power of the court to make an order that the representatives of a deceased plaintiff revive within a certain limited time after notice to them, or that the bill be dismissed, is doubtful." Where the abatement is partial, as where it is caused by the death of a defendant, it prevents those proceedings only by which his interest may be affected. Thus, if there be a decree against trustees and the

Daniell's Ch. Pr. (2d Am. ed.) 1715. 4 Finch v. Lord Winchelsea, 1 Eq. Cas. Abr. 2; Roundell v. Currer, 6 Ves. 250; Daniell's Ch. Pr. (2d Am. ed.) 1715. See Wharam v. Broughton, 1 Ves. Sr. 185.

5 Washington Ins. Co. v. Slee, 2 Paige (N. Y.), 365, 368.

11 Gregson v. Oswald, 1 Cox, Eq. 343.

12 Jones v. Massey, Brown v. Warner, Turner v. Cole, all quoted in Chowick v. Dimes, 3 Beav. 290, 292, 293; Chester v. Life Ass'n of America, 4 Fed. R. 487.

13 Askew v. Townsend. 2 Dick. 471. 14 Compare dictum of Judge Story

6 Hawley v. Bennett, 4 Paige (N. Y.), in Hoxie v. Carr, 1 Sumn. 173, 178, and 163.

the case of Chowick v. Dimes, 3

7 Quackenbush v. Leonard, 10 Paige Beav. 290, where Lord Langdale, (N. Y.), 131.

8 Daniell's Ch. Pr. (2d Am. ed.) 1715. 9 Thompson v. Took. 1 Dick. 115; Peters v. Robinson, 1 Dick. 116; Sinclair v. James, 1 Dick. 277.

10 Daniell's Ch. Pr. (2d Am. ed.) 1716; Lee v. Lee, 1 Hare, 622; Hawley v. Bennett, 4 Paige (N. Y.), 163.

M. R., granted such an order, with that of Lee v. Lee, 1 Hare, 617, where Vice-Chancellor Wigram held that the court had no power to make one.

15 Daniell's Ch. Pr. (2d Am. ed.) 1716; Finch v. Lord Winchelsea, 1 Eq. Cas. Abr. 2.

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beneficiary of their trust for a conveyance, and the beneficiary die, the trustees may still be obliged to convey; 16 and, after the death of one defendant, process of contempt may be issued and executed against the others; " after its abatement by the death of the owner of the equity of redemption, a foreclosure suit cannot be remanded before its revivor.18 It has also been held that the death of a defendant after hearing but before a decree does not necessarily prevent judgment,19 which should then be entered as of the date of the hearing, nunc pro tunc, and that, if practicable, a decree made before a defendant's death, for example, a decree for a sale, may be enforced without revivor.20

§ 176. When a suit may be revived and effect of revivor. A suit which has abated may generally be revived when anything further remains to be done therein.1 But a suit will not be allowed to be revived merely for costs which are untaxed, and have not been previously directed to be paid out of a particular estate or fund, nor decreed against an executor out of assets.2 Nor can a bill of revivor be brought upon a bill filed merely for discovery, after the discovery required thereby has been obtained. A suit cannot be revived seven years after its dismissal for a defect of parties caused by a failure to revive. Where the abatement is by the death or marriage of a plaintiff, an order to revive the suit places it and all proceedings in it in precisely "the same plight, state, and condition that the same were in at the time when the abatement took place." The new plaintiff may then take the same proceedings that the original plaintiff might have done. Thus, the

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16 Finch v. Lord Winchelsea, 1 Eq. Cas. Abr. 2; Daniell's Ch. Pr. (2d Am. ed.) 1716.

17 Daniell's Ch. Pr. (2d Am. ed.) 1716. 18 Wright v. Phipps, 58 Fed. R. 552. 19 Davies v. Davies, 9 Ves. 461; Daniell's Ch. Pr. (2d Am. ed.) 1717.

20 Whiting v. Bank of U.S., 13 Pet. 6. $176. 1 Gilbert's Forum Romanum, 181; Johnson v. Peck, 2 Ves. Sen. 465; Fitzpatrick v. Domingo, 14 Fed. R. 216; Daniell's Ch. Pr. (2d Am. ed.) 1694. See Warner V. S. Co. v. Smith, 165 U. S. 28, and supra, § 114.

2 Daniell's Ch. Pr. (2d Am. ed.) 16941697; Story's Eq. PL., § 371; Blower v. Morrets, 3 Atk. 772; Kemp v. Mackrell, 3 Atk. 812; Travis v. Waters, 1 J. Ch. (N. Y.) 85.

3 Horsburg v. Baker, 1 Pet. 232. 4 Houth v. Owens, 30 Fed. R. 910. 5 Gregson v. Oswald, 1 Cox Eq. 344. 6 Vattier v. Hinde, 7 Pet. 252, 266; Phillips v. Derbie, 1 Dick. 98; Hyde v. Forster, 1 Dick. 132; Daniell's Ch. Pr. (2d Am. ed.) 1778.