A Treatise on the Practice of the Court of Chancery

real and personal estate. M. R. a defendant, devised and bequeathed all her interest in the subject matter of the suit, to certain persons other than her heirs at law and next of kin, and then died. The complainants neglected to revive. The executrix, devisees, and legatees of M. R. applied by petition, under the above sections of the statute, for an order that the suit stand revived against them. The chancellor decided. that so far as respected the real estate, it having been devised out of the line of descent under the statute, the suit could not be revived under those sections of the statute, but must be revived by bill of supplement and revivor. He therefore, under the general prayer in the petition, ordered the complainants to revive the suit within eighty days against the real and personal representatives of M. R. or that the bill be dismissed with costs.

By and against whom suits may be revived.] Upon a bill for an account and distribution of an estate, if one of the distributees dies pending the suit, it must be revived against his personal representatives, and not against his next of kin.(h)

Where, by the death of a party, his interest or title to the property in controversy is transmitted to the representative which the law gives or ascertains, the proceedings may be continued in favor of such representative by a bill of revivor or a petition under the statute.(i) Thus, if a suit abates after a decree affecting both real and personal property, it may be revived by the heirs or personal representatives, or by either.(k) Accordingly, if a bill is filed for a partition of real estate and for an account of the rents and profits, and the suit afterwards abates by the death of the complainant, his heir at law may revive the suit so far as relates to the partition of the estate, and the rents and profits subsequent to the descent to such heir; and the personal representatives may revive as to the rents and profits which accrued before that time.(7)

The executrix of a mortgagor, or of his grantee, having no interest in the premises, is not entitled to redeem, and cannot revive a suit for that purpose commenced by his testator in his lifetime.(m)

After a decree to account, either party may revive.(n)

(h) Jenkins v. Freyer, 4 Paige, 47.
(i) Douglass v. Sherman, 2 Paige, 358.
(k) Owing's case. 1 Bland, 409.
(1) Hoffman v. Tredwell, 6 Paige,

308.

(m) Douglass v. Sherman, 2 Paige, 358.

(n) Griffith v. Bronaugh, 1 Bland, 518.

INDEX.

ABATEMENT.

definition of, 674.

what amounts to, 664, 675, 676.

effect of, 676.

where it is total, 676.

when court will entertain applications notwithstanding, 677.
injunction not dissolved by, 677.

but defendant may have an order that complainant revive, 67.
delivery of deeds and writings, order for, 677.

reading depositions taken during, 677.

death of party since the argument will not prevent court from giv-

ing judgment, 677.

so as to death after the entry of an appeal, and before argument,

will not prevent the running of statute of limitation, 678.

does not put an end to proceedings, 678.

receiver not discharged by, 678.

how sequestration affected by, 75.

where it is only partial, 679.

ABBREVIATION OF PLEADINGS.

to be furnished on hearing, 313, 314.

ABSENT, NON-RESIDENT, AND CONCEALED DEFENDANTS.

method of taking bills as confessed against, 92.

in what cases order to appear may be published, 92.

if defendant resides out of state, proof of that fact necessary, 92.

what proof required, 92.

affidavit as to a party residing in this state, but absent therefrom, 93.
affidavit as to a party's continued absence, 93.

against a married woman, 154.

order to appear.

ABSENT, NON-RESIDENT, AND CONCEALED DEFENDANTS-con-

tinued.

when it may be applied for, 93.

time for appearance, mentioned in, 93.

when it may be extended, 93.

publication of notice of, 94.

for what length of time, 94.

in what newspapers, 94.

not necessary if copy order is served, 94.
may be directed in partition suits, 94.

form of notice, 94.

notice of further order, 94.

how proved, 94.

order to take bill as confessed, 94.

proof of service of order to appear, 95.
affidavit that defendant has not appeared, 95.
reference to master to take proof of facts, 94, 95.
order for may be entered of course, 95.

even after bill has been taken as confessed, 95.
proofs before master, 95.