§ 3. jected below, which the House thinks ought to have been received, CH. XXXII. the usual course is to remit the cause to the Court below. It seems, however, that, before doing this, the House will look at the rejected evidence, in order to see whether, if it were admitted, it would affect the opinion of the House, in forming their judgment.1 reading of the deposition, the evidence was properly heard. Birdsong v. Birdsong, 2 Head (Tenn.), 289. 1 Maccabe v. Hussey, 5 Bligh N. S. 715, 729. CHAPTER XXXIII. OF ABATEMENT, REVIVOR, AND SUPPLEMENT. SECTION I. Abatement. In the preceding chapters, the attention of the reader has been directed to the rules and course of proceedings in a suit originally perfect in its frame, and in which no incidental circumstances have occurred to alter the state of the original parties, or the relation in which they stood to each other at the commencement of the proceedings. It frequently, however, occurs that, as the cause advances, defects in its original constitution are discovered; or, assuming that it was in all respects correctly instituted, the death of parties, or other events happening subsequently to the commencement of the cause, render it impossible that a suitable hearing or decree can take place. To obviate difficulties of this description it was, until the recent changes in the practice of the Court, the rule for the plaintiff to institute subsidiary suits by filing bills of different descriptions, designated by the terms Bills of Revivor, Bills of Supplement, Bills in the nature of Bills of Revivor and other phrases. The comparative simplicity of modern proceedings in Chancery, and more especially the abbreviation of the time usually elapsing between the commencement of a cause and the hearing, have diminished the number of occasions when it is necessary to have resort to proceedings of this description, with the view of remedying defects in a cause; and when such occasions do now occur, the means provided by the present practice are much simpler than they were formerly, and many of the distinctions that formerly prevailed have therefore become obsolete. It will be convenient, first, to consider the case where the suit was originally perfect, but where an event happening subsequently has caused what is technically called an abatement, that is to say, has put the suit in such a condition that no further proceedings can be taken until the defect is remedied; and in order to make the provisions of the modern Act of Parliament on the subject of abatement intelligible, it will be convenient to state shortly what CH. XXXIII. § 1. was the previous practice to which the Act now applies. ment. Upon the death of a plaintiff or defendant materially interested, Former practhe suit, both according to the former and the present practice, tice on abateabates.1 So, also, if a transmission of the interest in the suit of a plaintiff or defendant takes place after the commencement of the cause, it is necessary that the person to whom the interest is transmitted should be before the Court, and until he is made a party the suit is not absolutely abated, but deemed defective. Under these circumstances, to render the record complete, different courses were, according to the former practice, necessary. In a simple case a bill of revivor was sufficient, and thereupon, in a few days, an order of course to revive the suit was obtained if no objection was taken. Frequently, however, when there was any fact capable of being disputed in Chancery, as the transmission of the interest, a bill of supplement was necessary; in which case an answer was put in, a decree was made, and all the proceedings of a formal suit were taken. With respect to the species of abatement which might be remedied by bill of revivor, it was laid down, that whenever a suit abated by death, and the interest of the person whose death caused the abatement was transmitted to that representative which the Law gives or ascertains, as an heir-at-law, executor, or administrator, so that the title could not be disputed, at least in the Court of Chancery, but the person in whom the title vested was alone to be ascertained, the suit might be continued by bill of revivor merely; so also, if a suit abated by the marriage of a female plaintiff, and no act was done to affect the rights of the party but the marriage, no title could be disputed; the person of the husband was the sole fact to be ascertained, and therefore the suit might be continued in this case likewise, by bill of revivor merely.* 1 See Crook v. Turpin, 10 B. Mon. 243. 2 Where one of the defendants in an Equity suit dies while the suit is pending, and his heirs cannot be prejudiced by the proceedings, they need not be made parties. Adams v. Stevens, 49 Maine, 362. 8 Boynton v. Boynton, 21 N. H. 246; Story Eq. Pl. § 364; Feemster v. Markham, 2 J. J. Marsh. 303; Peer v. Cookerow, 1 McCarter (N. J.), 361, 365. Where a bill in Equity to redeem mortgaged premises is abated by the death of the plaintiff, his heirs may renew the suit by a bill of revivor. Putnam v. Putnam, 4 Pick. 139; see Pell v. Elliott, 1 Hopk. 86; Thompson v. Hill, 5 Yerger, 418; Douglass v. Sherman, 2 Paige, 358; Randolph v. Dickenson, 5 Paige, 517. In a suit for the rescission of a contract for lands, if the plaintiff dies, it should be revived in the name of the heirs, and not of the ex 8 ecutors. If the defendant dies, it is error If a suit abates, after a decree affecting 409. 4 Douglass v. Sherman, 2 Paige, 358; Boynton v. Boynton, 21 N. H. 246. The Cases where simple bill of sufficient according to tice. revivor was former prac Marriage of female plain tiff. CH. XXXIII. § 1. Where abate ment could not be remedied by revivor according to former practice. Rule as to defendant. If, however, upon the abatement happening, the interest of the party did not vest in any representative which the law gives or ascertains, as in the case of bankruptcy or insolvency, or of a devisee of real estate,1 the suit could not be continued by bill of revivor, but must, where the abatement was caused by the bankruptcy or insolvency of a defendant, be continued by supplemental bill. So, where the suit abated by the bankruptcy or insolvency of a sole plaintiff, his assignees could not continue the suit by bill of revivor, but must do so by original bill, in the nature of a supplemental bill. So also, in a suit relating to land, where a plaintiff died, having devised the land which was the subject of the litigation, the suit could not be continued on the part of the devisee by a simple bill of revivor.3 The same rule applied to abatements occasioned by the death of parties defendant as well as of parties plaintiff; therefore, a bill of simple revivor did not lie against the devisee of a defendant, but the suit was continued against him in the same manner that it was continued by the devisee of a plaintiff. It has been necessary to refer to the nature of the distinctions that existed in the former practice, in order to render the new rules intelligible. The Act of Parliament now declares, "that upon any suit in object of the bill of revivor, in such case, 1 A devisee cannot maintain a bill of Where a bill in the nature of a bill of revivor is filed by any one who was not a party to the original suit, either as the representative of a deceased party or otherwise, all of the other parties to such original suit, who have any interest in the further proceedings therein, should be made parties to such bill, either as plaintiff's or defendants. The Farmers' Loan and Trust Co. v. Seymour, 9 Paige, 538. 2 See Johnson v. Fitzhugh, 3 Barb. Ch. 360. Where a creditor's bill is brought against a debtor, who afterwards obtains a discharge in bankruptcy, the plaintiff, if he wishes to contest the validity of the discharge, should file a supplemental bill, setting out the commencement of the original suit, the subsequent decree in bankruptcy, the discharge, and the facts relied upon to avoid the discharge, and should make the assignee and the bankrupt parties to such bill. Penniman v. Norton, 1 Barb. Ch. 246; Alcott v. Avery, 1 Barb. Ch. 347. But if he merely wishes to proceed against the property, he must revive the suit against the assignee alone, stating the discharge as a reason for proceeding no farther against the bankrupt; and if the assignee has sold his interest in the property, that fact should be shown, and the purchaser made a party to the suit instead of the assignee. Penniman v. Norton, 1 Barb. Ch. 246. 8 Slack v. Walcott, 3 Mason, 308; Douglass v. Sherman, 2 Paige, 358; Russell v. Craig, 3 Bibb, 377; Pingree v. Coffin, 12 Gray, 288; Peer v. Cookerow, 1 McCarter (N. J.), 361. 4 15 & 16 Vic. c. 86, § 52. abatement, order may be shall have same effect as made which a bill of re vivor. the said Court becoming abated by death, marriage, or otherwise, CH. XXXIII. $1. or defective by reason of some change or transmission of interest or liability,' it shall not be necessary to exhibit any bill of revivor In cases of or supplemental bill in order to obtain the usual order to revive such suit, or the usual or necessary decree or order to carry on the proceedings; but an order to the effect of the usual order to revive or of the usual supplemental decree may be obtained as of course upon an allegation of the abatement of such suit, or of the same having become defective, and of the change or transmission of interest or liability, and an order so obtained, when served upon the party or parties, who, according to the present practice of the said Court, would be defendant or defendants to the bill of revivor or supplemental bill, shall from the time of such service be binding on such party or parties in the same manner in every respect as if such order had been regularly obtained according to the existing practice of the said Court; and such party or parties 1 A defect of this nature cannot be remedied by amendment, or supplemental statement. Commerell v. Hall, 2 Drew. 194; S. C. nom. Commerell v. Bell, 18 Jur. 141; Williams v. Jackson, 5 Jur. N. S. 264; 7 W. R. 104, V. C. W.; Webb v. Wardle, 11 Jur. N. S. 278, V. C. K.; ante, pp. 406, 407; post, p. 1530, and notes. 2 In Maine, bills may be revived, in proper cases, by an amendment filed with the clerk, on which a subpœna and other process may issue, and be served as in case of an original bill; and the appearance shall be entered, and the like proceedings be had as on original bills, so far as they have not before taken place, or in the manner provided by statute. Rule of Chancery, 21; 37 Maine, 590. By rule of Chancery in Massachusetts, when the death of any party shall be suggested in writing, and entered on the docket, the clerk, upon application, may issue process to bring into Court the representative of such deceased party. Rule 25 It was held in Pingree v. Coffin, 12 Gray, 288, that on the death of a sole plaintiff in a bill in Equity to obtain a title to real estate, his devisee cannot come in and prosecute without a bill in the nature of a bill of revivor. See Mass. Sts. 1865, c 42; 1862, c. 218, § 7. In New Hampshire, "no proceeding in Equity shall be abated, if the person who shall become interested shall, on his petition, briefly setting forth his relation to the cause, be admitted to prosecute or defend as a party thereto; nor, if such person, upon petition of the adverse party, briefly stating his relation to the cause, shall be by order of the Court, duly notified to appear therein. If the person so notified shall neglect to appear, the bill shall be taken as against him as confessed." Rule 28, 38 N. Hamp. 610. In the Courts of the United States, "whenever a suit shall 8 become abated by the death of either party, With respect to the form of a bill of revivor in the Courts of the United States, see Rule 47 of Equity Rules of the Supreme Court of the United States, January Term, 1842; Story Eq. Pl. § 374. Upon a bill of revivor, the sole questions before the Court are, the competency of the party to revive, and the correctness of the frame of the bill to revive. Bettes v. Dana, 2 Sumner, 383. A bill of revivor, when necessary, may be filed of course, without an order of the Court granting permission to file it. Pendleton v. Fay, 3 Paige, 204. 8 From this it follows that when the suit abates by the change or transmission of the interest or liability of a defendant, the order of revivor need only be served upon the persons who have become necessary parties to the suit, by reason of such change or transmission; but when the suit abates by a change or transmission of the interest or liability of the plaintiff, or one of several co-plaintiffs, all the other parties to the suit must be served. See Fallowes v. Williamson, 11 Ves. 306; Cave v. Cork, 2 Y. &. C. C. C. 130; 7 Jur. 461; Bignall |