REVISED STATUTES OF ILLINOIS. SECTION Chapter 1. ABATEMENT. SECTION [*96] 1. When pleas must be verified by affi- 14. Death of part of plaintiffs in eject davit. ment. When survivor may prosecute. 3. Amendments. 16. Death of part of defendants in eject 17. Summons against new defendant. Death of part where cause does not survive in chancery. 6. When suit may proceed. 18. When executor, etc., dies, etc. When new defendant not served. 19. When public officer or trustee dies, 8. Second plea not allowed. 12. Death of part of several plaintiffs or defendants, where cause survives. 9. Marriage of feme sole not to abate. suit. 20. 11. Death of sole defendant-revival 23 against executors, etc. etc. When either party becomes insane. 21. 22. In partition-death-revival. Suit for the use of another. 24. Applies to appeals, writs of error and certiorari. 13. Death of all the plaintiffs or defend- 26. ants, where cause survives. 25. Process. Limitation. AN ACT to revise the law in relation to abatement. [Approved March 2, 1874. In force July 1, 1874.] SEC. I. Be it 1. When must be verified by affidavit. enacted by the People of the State of Illinois, represented in the General Assembly, That no plea in abatement, other than a plea to the jurisdiction of the court, or when the matters relied upon to establish the truth thereof appear of record, shall be admitted, unless the same is verified by the affidavit of the person offering the same, or of some other person for him. [R. S. 1845, p. 43. r; Bancroft v. Eastman, 2 Gilm, 259; King v. Haines, 23 III. 340; Cook v. Yarwood, 41 lil. 115; Miller v. Blow, 68 Ill. 304: Mills v. Bland, 76 Ill. 381; Ryan v. Lander, 89 Ill. 554. 2. Insufficient plea-costs. § 2. When a plea in abatement is adjudged insufficient, by the court, the plaintiff shall recover all costs in the suit to the time of overruling such plea. [R. S. 1845, P. 43. § 2. See ch. 7, § 11; Protection Life Ins. Co. v. Palmer, 81 Ill. 89; McKinstry v. Pennoyer, 1 Scam. 319. 3. Amendments. § 3. No action or proceeding shall be defeated by plea in abatement, if the defect found is capable of amendment and is amended on terms prescribed by the court. [See Practice," ch 110, $245. "Amendments and Jeofails," ch. 7; Heslep v. Peters, 3 Scam. 46; Simons v. Waldron, 70 Ill. 281; Fonville v. Monroe, 74 Ill. 126; Wilday v. Wright, 71 Ill. 375. 4. Non-joinder of defendants-amendment. §4. When a defendant in an action upon a contract, express or implied, pleads in abatement the non-joinder of any other person as defendant, the [*97] court shall, at any time before issue joined on such plea, allow the plaintiff to amend his declaration by inserting therein the name of the person named in such plea, and declaring against him jointly with the original defendant. [See "Practice," ch. 110, § 24; R. S. 1845, P. 43, § 3; Smith v. Harris, 12 Ill. 462; Ross v. Allen, 67 Ill. 317. 5. Summons against new defendant. § 5. The plaintiff shall thereupon sue out a new summons against the person so made defendant (unless he enters his appearance), returnable in like manner as other summons, requiring such defendant to appear and answer the original action. [See "Practice," ch. 110, § 25; R. S. 1845, p. 43, § 3. 6. When suit may proceed. § 6. Upon the return of such snmmons served upon such new defendant, or upon his appearance, the suit may proceed in all respects as if he had been a party at the commencement of the suit. [R. S. 1845, p. 43, § 3. 7. When new defendant not served. § 7. If a new defendant cannot be served with process, the plaintiff, on the return of such summons, may proceed as in other cases in which service is had on part of the defendants only. [See "Practice," ch. 110, § 10; R. S. 1845, P. 44, § 4. 8. Second plea. 8. No second plea in abatement for the nonjoinder of defendants shall be allowed to the same defendant in the same case. [R. S. 1845, P. 44, § 4; Cook v. Yarwood, 41 Ill. 115. 9. Marriage of feme sole not to abate. §9. No action, proceeding or complaint, in law or equity, commenced by or against a feme sole, either alone or with others, shall abate on account of her intermarriage before final judgment, but she may continue to prosecute or defend the same in like manner as if she were sole. When [R. S. 1845, P. 44, $$ 5, 6. See chap. 68, § 1; Young v. Ward, 21 Ill. 223. 10. Death of sole plaintiff-reviving suit. § 10. there is but one plaintiff, petitioner or complainant in an action, proceed. ing or complaint, in law or equity, and he shall die before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if the cause of action survive to the heir, devisee, executor or administrator of such decedent, but any of such to whom the cause of "ction shall survive, may, by suggesting such death upon the record, be substituted as plaintiff, petitioner or complainant, and prosecute the same as in other cases. [R. S. 1845, P. 44. § 7: Murphy v. McGrath, 79 Ill. 594; Milliken v. Marlin, 66 Ill. 13; Thorpe v. Starr, 17 Ill. 199; Singleton v. Wofford, 3 Scam. 576; lloes v. Van Alstyne, 20 ill. 201; bunker v. Green, 48 Ill. 243; Carr v. Casey, 20 Ill. 637. 11. Death of sole defendant-revival against executors, etc. II. When there is but one defendant in an action, proceeding or complaint, in law or equity, and he dies before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if it might be originally prosecuted against the heir, devisee, executor or administrator of such defendant, but the plaintiff, petitioner or complainant may suggest such death on the record, and shall, by order of the court, have summons against such person or legal representative, requiring him to appear and defend the action, proceeding or complaint, after which it may proceed as if it had been originally commenced against him. [R. S. 1845, P. 44, 8. See " Mandamus," ch. 87, 8; Harvey v. Harvey, 87 Ill. 56; Guyer v. Woolkey, 18 Ill. 536; Funk v. Stubblefield, 62 Ill. 405; Davis v. Day, 19 In. 12. Death of part of plaintiffs or defendants. § 12. When there are several plaintiffs, petitioners or complainants, or defendants in an action, proceeding or complaint, in law or equity, the cause of which survives, and any of them die before final judgment or decree, the action, proceeding or complaint shall not on that account abate, but such death may be suggested on the record, and the cause proceed at the suit of the surviving plaintiff, petitioner or complainant, or against the surviving defendant, as the case may be, in all cases as if such persons had been originally sole parties to the suit. [R. S. 1845, P. 44. $9; Camden v. Robertson, 2 Scam. 507; Stoetzell v. Fullerton, 44 Ill. 108; Steele v. Thatcher, 79 Ill. 400. 13. Death of all plaintiffs or defendants. § 13. If, in the case mentioned in the preceding section, all the plaintiffs, petitioners or complainants, or all the defendants, die, the cause may be prosecuted or defended by or against the heir, devisee, executor or administrator, to or against whom the cause survives, of the last surviving plaintiff, petitioner, complainant or defendant respectively, in like manner as if the survivor had been originally the only plaintiff, petitioner, complainant or defendant. [R. S. 1845, p. 98, § 40. [*98] 14. Death of part of plaintiffs in ejectment. § 14. If there are several plaintiffs in an action of ejectment, and any of them die before final judgment, the death of such party may be suggested on the record, and the heir or devisee of the deceased party shall be admitted to prosecute the suit jointly with the survivor, in the same manner as if he had originally joined with him in commencing the action. [R. S. 1845, p. 208, § 26. 15. When survivor may prosecute. § 15. If the interest of the deceased party passes to the surviving plaintiff, or if the heir or devisee of the deceased party does not, within a reasonable time, to be fixed by the court, join in the prosecution of the suit, the surviving plaintiff may prosecute the suit for so much of the premises in question as may then be claimed by him. 16. Death of part of several defendants in ejectment. 16. In case of the death of any of several defendants in an action of ejectment, the action may be prosecuted against the other defendants for so much of the premises as they hold or claim, or the death being suggested, the heir or devisee of the deceased party may be made co-defendant with the others, and the suit procee the same as if such heir or devisee had originally been made co-defendant. [R. S 1845, P. 208, § 26. See ante, § 11. 17. Death of part when cause does not survive in chancery. 17. When there are several complainants or defendants in a suit or proceeding in chancery, and any of them die, and the cause of action does not survive to the surviving complainant, or against the surviving defendant, and any other persons become interested therein in consequence of such decease, such suit or proceeding shall, by reason of such death, be abated only with respect to such deceased party; and the person or legal representative so becoming interested may be made a party to such suit or proceeding in the same manner as in the case of the death of a sole complainant or defendant; or the suit or proceeding may be prosecuted by the surviving complainant against the surviving defendant without reviving the same in favor of or against the person or legal representative so becoming interested therein; but in the latter case such interested person or legal representative, not made a party, shall not be bound by any order or decree made in the cause. [R. S. 1845, P. 97, § 39; Welch v. Louis, 31 Ill. 446; McCall v. Lesher, 2 Gilm. 47. 18. When executor, etc., dies, etc. §18. When an execu. tor, administrator, guardian or conservator is plaintiff, petitioner or complainant, or defendant in a suit or proceeding in law or equity, and dies, resigns, or is removed from office before final judgment or decree, the suit or proceeding shall not on that account abate, but the same may be continued by or against his successor, in like manner as in case of the death of other parties. [R. S. 1845, p. 44, § 10. 19. When public officer or trustee dies or is removed. $19. When an action, proceeding or complaint, in law or equity, is authorized or directed by law to be brought by or in the name of any public officer, or by any trustee appointed by virtue of any statute, and such officer or trustee dies or ceases to be such officer or trustee before final judgment or decree, the suit shall not on that account abate, but the same may be continued by his successor, in like manner as in case of the death of other parties. [R. S. 1845, p. 44, § 11. 20. When either party becomes insane. $ 20. If, during the pendency of an action, proceeding or complaint, in law or equity, either party becomes insane, the cause may be prosecuted or defended by his conservator in like manner as by an executor or administrator in case of the death of a party, or the court may appoint a guardian ad litem, as the case may require. 21. In partition. § 21. No plea in abatement shall be received |