process, the suit shall stand revived, as of course." The Revised Statutes provide "when either of the parties, whether plaintiff, petitioner, or defendant, dies before final judgment, the executor or administrator may, if the suit survives, prosecute or defend to final judgment. The defendant shall answer, and the cause will be heard and determined, and judgment rendered for or against the executor or administrator. If the executor or administrator neglects or refuses to become a party twenty days after being served with a scire facias, the court may nevertheless render judgment against the deceased party. The executor or administrator on becoming a party is entitled to a continuance until the next term."2 The form of the subpœna upon a bill of revivor is the same as that upon an original bill, except that it states the nature of the bill to which the defendant is required to appear, and the time allowed him by the rules in which to do so.3 The subpoena is also sued out and served in the same manner as one upon an original bill;* but substituted service of the subpoena upon the attorney of the defendant to the original bill may be allowed when the original defendant is beyond the reach of process." It has been held that a suit cannot be revived against the foreign executor or administrator of a deceased defendant who has not taken out letters within the jurisdiction of the court, and has no assets there. If the defendant refuses to appear, process of contempt may be issued against him. A defendant who wishes to oppose the revivor should demur or plead to the bill, or perhaps show cause by affidavit to the contrary. Where an answer is required, that should probably accompany the demurrer or plea. It is not expedient to take in the answer any objection to the revivor. For the English rule was that an objection thus taken would not prevent the order to revive, and the point could then only be determined by bringing the cause regularly to a hearing."

§ 181. 1 Rule 56. See Oliver v. Decatur, 4 Cranch, C. C. 592.

2 U. S. R. S., § 955. See Griswold v. Hill, 1 Paine 483.

3 Daniell's Ch. Pr. (2d Am. ed.) 1707. Daniell's Ch. Pr. (2d Am. ed.) 1707. 5 Dunn v. Clarke, 8 Pet. 1, 2; Norton v. Hepworth, 1 Hall & Tw. 158. See § 96.

6 Mellus v. Thompson, 1 Cliff. 125. 7Daniell's Ch. Pr. (2d Am. ed.) 1707. 8 Daniell's Ch. Pr. (2d Am. ed.) 1709, 1710; Rule 58.

9 Daniell's Ch. Pr. (2d Am. ed.) 1709, 1711; Harris v. Pollard, 3 P. Wms. 348; Lewis v. Bridgman, 2 Sim. 465; Codrington v. Houlditch, 5 Sim. 286.

A bill of revivor is demurrable if it does not show a sufficient ground for reviving the suit or any part of it, either by or against the person by or against whom it is filed; 10 for want of parties apparent upon its face, though not for the omission of such as had not appeared before, or were not before the court at the time of the abatement; " and for any serious defect in form. Upon a demurrer to a bill of revivor, the sufficiency of the original bill cannot be considered.12 Should, however, the original bill fail to state facts giving the Federal courts jurisdiction, that objection may be raised by a demurrer to the bill of revivor.13 If a bill of revivor be brought without sufficient cause to revive, and this be not apparent upon its face, or if the plaintiff is not entitled to revive the suit at all, though a title is stated in the bill so that it is not demurrable, the defendant may set up his objections to it by plea. The running of the statute of limitations after the time when a person became entitled to revive is also in most cases, except after a decree for an account,15 a defense and a bar to a bill of revivor, which may be set up by plea.16 No plea can be put in against a bill of revivor which has been pleaded to the original bill and overruled, although if a plea has been put in and the suit abated before argument, it may subsequently be pleaded anew to the original bill." When an answer to a bill of revivor is required, it must be confined to such matters as are called for by the bill, or as would be material to the defense with reference to the order made upon it.18 Allegations which might have been pleaded before abatement to the original bill will be

10 Harris v. Pollard, 3 P. Wms. 348; University College v. Foxcroft, 2 Ch. R. 244; Daniell's Ch. Pr. (2d Am. ed.) 1709, 1710; Story's Eq. Pl., §§ 617, 829. 11 Metcalfe v. Metcalfe, 1 Keen, 74; Crowfoot v. Mander, 9 Sim. 396; Daniell's Ch. Pr. (2d Am. ed.) 1710.

12 Mason v. Hartford, P. & F. Ry. Co., 19 Fed. R. 53, 55; Sharon v. Terry, 36 Fed. R. 337.

13 Sharon v. Terry, 36 Fed. R. 337. 14 Daniell's Ch. Pr. (2d Am. ed.) 1710; Lewis v. Bridgman, 2 Sim. 465.

15 Hollingshead's Case, 1 P. Wms. 742; Daniell's Ch. Pr. (2d Am. ed.)

14

16 Daniell's Ch. Pr. (2d Am. ed.) 1710; Coit v. Campbell, 82 N. Y. 509; Perry v. Jenkins, 1 Myl. & Cr. 122; Mason v. Hartford, P. & F. Ry. Co., 19 Fed. R. 53, 56; Story's Eq. Pl., § 831. A bill of revivor was stricken from the file when filed twelve years after the filing of an opinion dismissing the original bill, although no decree upon the opinion was ever entered. Hubbell v. Lankenan, 63 Fed. R. 881. 17 Daniell's Ch. Pr. (2d Am. ed.) 1711. 18 Daniell's Ch. Pr. (2d Am. ed.) 1711; Story's Eq. Pl., § 868a.

considered as impertinent," and disregarded.20 It will not, however, be impertinent, if it states matters of defense which have occurred since the answer to the original bill was filed, though these do not affect the title of the plaintiff to revive." Such an answer is impertinent when it describes and complains of irregularities in the suit before the abatement. Such an answer should be signed by counsel; and exceptions will lie to it for insufficiency, scandal, and impertinence.24 If it does not admit the plaintiff's title to revive or state any circumstances which he is desirous of controverting, it must, if the abatement has taken place after decree or issue joined in the original cause, be replied to.25 Otherwise, a separate replication will be unnecessary, and one replication will put in issue both the allegations in that and those in the original answer.28 In all other respects, the form and the proceedings upon demurrers, pleas, and answers to bills of revivor should conform as nearly as possible to those of and upon similar pleadings to original bills. A bill of revivor need not be set down for a hearing, unless it prays other relief than a mere revivor.28 Where a bill of revivor seeks merely an admission of assets and a revivor, and the defendant admits assets, the cause may proceed upon the order of revivor merely. If, however, any issue is joined upon the answer to it, a hearing will be necessary.30 The sole questions before the court when a bill of revivor is filed are the competency of the parties by and against whom it is filed, and the frame of the bill. A cause is not revived until an order of revivor has been entered.32

27

§ 182. Bills in the nature of bills of revivor in general. A bill in the nature of a bill of revivor is a bill filed "to obtain the benefit of a suit after abatement in certain cases which

19 Nanney v. Tottey, 11 Price, 117. 20 Gunnell v. Bird, 10 Wall. 304, 308; Fretz v. Stover, 22 Wall. 198, 204.

21 Langley v. Overton, 10 Sim. 345. 22 Wagstaff v. Bryan, 1 R. & M. 28. 23 Daniell's Ch. Pr. (2d Am. ed.) 1712. 24 Wagstaff v. Bryan, 1 R. & M. 28; Daniell's Ch. Pr. (2d Am. ed.) 1712. 25 Daniell's Ch. Pr. (2d Am. ed.) 1712. 26 Catton v. Earl of Carlisle, 5 Madd. 427; Daniell's Ch. Pr. (2d Am. ed.)

27 Daniell's Ch. Pr. (2d Am. ed.) 1711, 1712.

28 Pruen v. Lunn, 5 Russ. 3; Daniell's Ch. Pr. (2d Am. ed.) 1713. 29 Mitford's Pl., ch. 1, § 3; Daniell's Ch. Pr. (2d Am. ed.) 1713.

30 Daniell's Ch. Pr. (2d Am. ed.) 1713; Mitford's Pl., ch. 1, § 3.

31 Bettes v. Dana, 2 Sumn. 383. 32 Atterbury v. Gill, 13 Off. Gaz 276.

3

"If the

do not admit of a continuance of the original bill." death of a party whose interest is not determined by his death is attended with such a transmission of his interest that the title to it, as well as the person entitled, may be litigated in the court of chancery," as in the case of a devise2 or conveyance of real estate, "the suit is not permitted to be continued by a bill of revivor. An original bill upon which the title may be litigated must be filed, and this bill will so far have the effect of a bill of revivor that if the title of the representative substituted by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill as if the suit had been continued by a bill of revivor." “The bill is said to be original merely for want of that privity between the party to the former and the party to the latter bill, though claiming the same interest, which would have permitted the continuance of the suit by bill of revivor. Therefore, when the validity of the alleged transmission of interest is established, the party to the new bill shall be equally bound by, or have advantage of the proceedings in the original bill, as if there had been such a privity between him and the party to the original bill claiming the same interest; and the suit is considered as pending from the time of the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defendant to answer before an answer can be compelled to a cross-bill, and every other advantage which would have attended the institution of the suit by original bill, if it could have been continued by bill of revivor merely." So the pleadings filed and any testimony taken in the original cause can be used in the same manner in the second cause after a bill in the nature of a bill of revivor has been filed. Such a bill can only be filed for the purpose of bringing in a person who claims in privity with the party whose death caused the abatement. Thus, if a bill is filed by

§ 182. Mitford Pl., ch. 1, § 3. See Slack v. Walcott, 3 Mason, 508, 512; Sharon v. Terry, 36 Fed. R. 337, 353. 2 Slack v. Walcott, 3 Mason, 508. 3 Sharon v. Terry, 36 Fed. R. 337. 4 Mitford's Pl., ch. 1, § 3. See Slack

v. Walcott, 3 Mason, 508.

5 Mitford's PL, ch. 1, § 3.

6 Slack v. Walcott, 3 Mason, 508; Vattier v. Hinde, 7 Pet. 252, 266; Story's Eq. Pl., §§ 371-387; Daniell's Ch. Pr. (2d Am. ed.) 1719.

7 Daniell's Ch. Pr. 1720; Story's Eq. Pl., § 385; Rylands v. Latouche, 2 Bligh, 585; Tonkin v. Lethbridge, G. Cooper, 43.

a devisee under a will, and afterwards a subsequent will is proved, the devisee under the second will can in no way avail himself of the proceedings in the suit; for there is no privity between him and the original plaintiff. If, however, a bill has been filed by the devisor himself for some matter concerning the estate devised, the second devisee may file a supplemental bill in the nature of a bill of revivor, even if the first devisee have already filed such a bill; for he derives his title so to do solely from the devisor independently of the first devisee. The principal difference between the effect of an original bill in the nature of a bill of revivor and an original bill in the nature of a supplemental bill is that under the former the defendant is absolutely bound by the proceedings in the original suit, whereas under the latter he can avail himself of any defense which has arisen since the original bill was filed, or which he has a right to urge against the new complainant, although it did not exist against the original plaintiff. When the court had jurisdiction of the original suit, a want of difference of citizenship between the parties to the bill in the nature of a bill of revivor will not be a defect in it.10

§ 183. Frame of bills in the nature of bills of revivor and proceedings upon them.- A bill in the nature of a bill of revivor "must state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party dead has been transmitted; and it must charge the validity of the transmission, and state the rights which have accrued by it." It usually prays that the original suit may be revived, and the party filing it have the benefit of the former proceedings therein. Probably a subpoena issued in accordance with its prayer may be served upon the attorney of an absent defendant, who had already appeared, in the same manner as a subpoena upon a bill filed to stay proceedings at law. Otherwise the form and the proceedings upon bills in the nature of bills of revivor are the same as those upon bills of revivor;'

8 Oldham v. Eboral, Cooper, Select Cas. 27.

Fulton v. Greacen, 44 N. J. Eq. 443. 10 Clarke v. Mathewson, 12 Pet. 164; s. C., 2 Sumn. 262; Minnesota Co. v. St. Paul Co., 2 Wall. 609.

2 Daniell's Ch. Pr. 1721; Story's Eq. Pl., § 386.

3 Norton v. Hepworth, 1 Hall & Tw. 158; Dunn v. Clarke, 8 Pet. 1, 2. See § 96.

§ 183. Mitford's Eq. Pl., ch. 1, § 3. 56.

4 Daniell's Ch. Pr. 1720, 1721; Rule