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new plaintiff may prosecute process of contempt against the defendant, taking it up where it stood at the abatement; and if a process has been previously issued it will be revived with the revivor of the suit. But where the abatement is caused by the death of a defendant, "the process, being personal, cannot be revived." In general, however, an order to revive against the representatives of a deceased defendant, will place the suit as fully in the same position with regard to such representatives as can be done with reference to the change of the individuals before the court. After revivor testimony previously taken can be used.10

§ 177. Who may revive a suit. It is generally necessary, in order to entitle one to revive, that there should be a privity in representation between him and the party whose death caused the abatement. Therefore, upon the death of one suing in a representative capacity, the defect can usually be remedied only by a supplemental bill, and not by a bill of revivor. It has been held, however, that upon the death of an administrator, the administrator de bonis non may file a bill of revivor, "though there is no actual privity between him and the original plaintiff." But Judge Story suggests that a bill in the nature of a bill of revivor would be more appropriate. It is said by Lord Redesdale that in the case of a bill by creditors on behalf of themselves and other creditors, any creditor may revive;1 but according to Daniell, in practice the form of a bill in such a case is that of a supplemental bill in the nature of a bill of revivor, and not of a mere bill of revivor. Before decree, a suit can only be revived by one or all of the surviving plaintiffs, or the representatives of one that has died. If any of these refuse to join, he must be made a defendant to the bill filed to revive the suit. If the suit concerned solely the real estate of

7 Hyde v. Forster, 1 Dick. 132; Dan1ell's Ch. Pr. (2d Am. ed.) 1778.

8 Daniell's Ch. Pr. (2d Am. ed.) 1778. 9 Daniell's Ch. Pr. (2d Am. ed.) 1778. 10 Vattier v. Hinde, 7 Pet. 252, 266. § 177. Daniell's Ch. Pr. (2d Am. ed.) 1697; Story's Eq. Pl., § 340.

2 Daniell's Ch. Pr. (2d Am. ed.) 1697; Mitford's Pl., ch. 1, § 3; Huggins v. York Bldg. Co., 2 Eq. Cas. Abr. 3;

Owen v. Curzon, 2 Vern. 237; New-
combe v. Murray, 77 Fed. R. 492.
3 Story's Eq. Pl., § 382, note 4.
4 Mitford's Pl., ch. 1, § 3.

5 Daniell's Ch. Pr. (2d Am. ed.) 1703. 6 Daniell's Ch. Pr. (2d Am. ed.) 1700; Chester v. Life Ass'n of America, 4 Fed. R. 487.

7 Daniell's Ch. Pr. (2d Am. ed.) 1700; Fallowes v. Williamson, 11 Ves. 309.

8

a deceased plaintiff, his heirs alone are entitled to represent him therein; if solely his personal estate, his executor or administrator; if both, separate bills of revivor may be filed by his heirs and personal representatives, and the neglect of one to revive will not prejudice the other.10 In the case of a suit by a corporation sole, the death of the plaintiff, if he were entitled to the subject-matter for his own benefit, caused an abatement; and the suit could be revived by his personal representative." If, however, he were only entitled to the subject-matter in his corporate capacity, the suit became defective, and could only be continued by his successor by means of an original bill in the nature of a supplemental bill.12 Where a corporation had, by a purchase at a foreclosure sale, succeeded to the rights of one that was defunct, it was held that it could not by a bill of revivor take the benefit of a suit by the stockholders of the defunct corporation, to which the mortgagee had not been a party. After a decree, a suit may be revived by any defendant, or by the representative of any deceased defendant, who has acquired any right thereunder, as well as by any plaintiff.14

13

§ 178. Manner of revivor in general.-"When a suit became abated after a decree signed and enrolled, it was anciently the practice to revive the decree by a subpœna in the nature of a scire facias, upon the return of which the party to whom it was directed might show cause against the reviving of the decree, by insisting that it was not bound by the decree, or that for some other reason it ought not to be enforced against him, or that the person suing the subpoena was not entitled to the benefit of the decree. If the opinion of the court was in his favor he was dismissed with costs. If it was against him, or if he did not oppose the reviving of the decree, interrogatories were exhibited for his examination touching any matter neces

8 Mitford's Eq. Pl., ch. 1, §3; Ferrers v. Cherry, 1 Eq. Cas. Abr. 3, 4; Mellus v. Thompson, 1 Cliff. 125.

9 Mitford's Pl., ch. 1, § 3; Mellus v. Thompson, 1 Cliff. 125; Ferrers v. Cherry, 1 Eq. Cas. Abr. 3, 4.

10 Mitford's Pl., ch. 1, § 3; Story's Eq. Pl., § 367; Mellus v. Thompson, 1 Cliff. 125; Ferrers v. Cherry, 1 Eq. Cas. Abr. 3, 4.

11 Daniell's Ch. Pr. (2d Am. ed.) 28, 1701; 1 Kyd on Corporations, 77.

12 Daniell's Ch. Pr. (2d Am. ed.) 28, 1701; 2 Bac. Abr., Corporation, E. 2. 13 Keokuk & W. R. Co. v. Scotland County, 152 U. S. 318.

14 Williams v. Cooke, 10 Ves. 406; Devaynes v. Morris, 1 Myl & Cr. 213, 225.

sary to the proceedings. If he opposed the reviving of the decree on the ground of facts which were disputed, he was also to be examined upon interrogatories, to which he might answer or plead; and issue being joined, and witnesses examined, the matter was finally heard and determined by the court. But if there had been any proceeding subsequent to the decree, this process was ineffectual, as it revived the decree only, and the subsequent proceedings would not be revived but by bill, and the enrollment of decrees being now much disused, it is become the practice to revive in all cases indiscriminately by bill." The writer is not acquainted with any instance of such practice in the United States. The only methods of reviving a suit in equity in the Federal courts seem to be a bill of revivor, a bill in the nature of a bill of revivor, a bill of revivor and supplement, and a supplemental bill in the nature of a bill of revivor. It was held in one case that the personal representative of a deceased defendant may voluntarily come in and be made a party upon motion. When a board of public officers was abolished by statute and a new board substituted for it, it was held, without determining whether or not a revivor was necessary, that the members of the new board could properly be made parties to the suit by means of a bill of revivor.3

§ 179. Definitions of bills of revivor and parties to the same. A bill of revivor is a continuance of the original bill, when, by death, some party to it has become incapable of prosecuting or defending a suit, or a female plaintiff has by marriage incapacitated herself from suing alone.1 "Whenever a suit abates by death, and the interest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir-at-law, executor, or administrator; so that the title cannot be disputed, at least in the Court of Chancery, but the person in whom the title is vested is alone to be ascertained; the suit may be continued by bill of revivor merely. If a suit abates by marriage of a female plaintiff, and no act is done to affect

§ 178. Mitford's Ch. Pl., ch. 1, § 3. 2 Griswold v. Hill, 1 Paine, 483. See U. S. R. S., § 955.

3 Hemingway v. Stansell, 106 U. S. 399, 402. See also The Sapphire, 11

Wall. 164; Allen v. Mayor, 18 Blatchf. 239; s. c., 7 Fed. R. 483.

§ 179.1 Mitford's Pl., ch. 1, § 3; Fitzpatrick v. Domingo, 14 Fed. R. 216.

the rights of the party but the marriage, no title can be disputed; the person of the husband is the sole fact to be ascertained; and therefore the suit may be continued in this case likewise by bill of revivor merely." The persons who may be plaintiffs in a bill of revivor have been specified in a preceding section. If the abatement be caused by the death or marriage of a plaintiff, all previous defendants to the suit must be made parties to the bill of revivor; unless it be filed after a decree, when all whose rights or duties have been fixed and ascertained thereby must be joined. If any of the previous plaintiffs refuse to join in the continuance of the suit, they also must be made defendants to the bill of revivor." If the abatement be caused by the death of a defendant, only his heirs or personal representatives, or both, according as the suit affected his interest in real or personal property, should be made defendants to the bill of revivor; unless the bill be filed after a decree, when all parties interested thereunder should be joined. There is no need of any difference of citizenship among the different parties to such a bill, provided that the court had jurisdiction of the original suit. A bill of revivor cannot be filed against the representatives of a defendant not served with process under the original bill. They can only be brought in by a bill in the nature of an original bill.10

§ 180. Frame of a bill of revivor.- A bill of revivor must state the filing of the original bill, and the several proceedings thereon, and the abatement; but it need not set forth any of the statements in the original suit, unless the special circumstances of the case require it." "It must show a title to revive, and charge that the cause ought to be revived, and stand in the same condition with respect to the parties in the bill of revivor as it was in with respect to the parties to the original bill at the time the abatement happened; and it must pray that

2 Mitford's Pl., ch. 1, § 3.

3 § 177.

7 Daniell's Ch. Pr. 1704.

8 Clark v. Mathewson, 12 Pet. 164;

4 Daniell's Ch. Pr. (2d Am. ed.) 1703, s. C., 2 Sumn. 262. 1704.

5 Finch v. Lord Winchelsea, 1 Eq. Cas. Abr. 2; Daniell's Ch. Pr. (2d Am. ed.) 1700.

6 Bettes v. Dana, 2 Sumn. 383; Daniell's Ch. Pr. (2d Am. ed.) 1704.

9 U. S. v. Fields, 4 Blatchf. 326. 10 See § 174.

§ 180. 1 Mitford's Pl., ch. 1, § 3. 2 Rule 58.

Where a decree has

be

the suit may be revived accordingly.” 3 been made reviving a former decree, a second bill for the same purpose properly seeks to revive the first decree of revivor, and so, ipso facto, the original decree. If a bill of revivor seeks simply to revive the suit, it prays only for a subpœna to revive. If it requires an answer, it should pray a subpoena to revive and answer. This is usually only required in two classes of cases. Where the bill is filed against an executor or administrator, and requires an admission of assets, the prayer usually is, not only that the suit may be revived, but also that, in case the defendant shall not admit assets to answer the purposes of the suit, an account of the estate of the deceased party may taken; "and so far the bill is in the nature of an original bill.” "If a defendant to an original bill dies before putting in an answer, or after an answer to which exceptions have been taken, or after an amendment of the bill to which no answer has been given, the bill of revivor, though requiring in itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original bill, or so much of it as the exceptions taken to the answer of the former defendant extend to, or the amendment remaining unanswered." A bill of revivor should be signed by counsel, and in general comply so far as is practicable with the requirements for original bills.

§ 181. Proceedings upon bills of revivor.- The Equity Rules provide that "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

3 Mitford's Pl., ch. 1, § 3.

4 Shainwald v. Lewis, 69 Fed. R. 487. 5 Mitford's Pl., ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1707.

6 Mitford's Pl., ch. 1, § 3.

7 Mitford's Pl., ch. 1, § 3.

8 Daniell's Ch. Pr. (2d Am. ed.) 1707.

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