20 Bills of Revivor. A bill of revivor is brought to revive suits, and allproceedings thereon abated. (a) If the event occasioning the abatement, does not affect the interest transmitted, in such a manner as to make it subject to litigation in a court of equity, the suit may be continued by a bill of revivor merely; after shortly setting forth the original bill and proceedings, the abatement and title to revive, the prayer of this bill is as follows: (b) To the end therefore, that the said bill, answer, and other proceedings thereupon had, may stand revived against the said defendants, and be in the same plight, state and condition, as the same were in at the time of the abatement thereof, May it please your Honor to grant unto your Oraor, the most gracious writ of Subpoena of the state of New York ad Revivendum, to be directed to the said, &c. commanding them respectively at a certain day, under a certain pain therein to be limited, personally to be and appear before your Honor, in this honorable court, then and there to shew cause, if cause there be, why such a suit, and proceedings so abated, as aforesaid, should not be revived, and in the same plight, state and condition, as the same were at the time of the Abatement thereof, and that your Orator may be further relieved in all and singular the premises, as to your Honor may seem meet and his case may require: and your Orator shall ever pray, &c. &c. (c) The subpoena to revive, is obtainable only by the heir, executor, or administrator, who come in the pri (a) 1 Har. 126. 210. Com. Rep. 590. 3 P. Wms. 348 (b) Bart. 155, in notis. see For. Rom. (c) Bar. 153. in notis. vity, that is, in immediate representation to the party litigant deceased; for a devisee or assignee of any plaintiff cannot have a subpoena to revive after the decree of such plaintiff. (d) With respect to the abatement by the death of parties it must be by the death of such as were so materially concerned in interest, as to make it necessary to have their representatives before the court, before the cause can be finally determined. (e) If the plaintiff dies pending a suit, it is abated, and his executor or administrator must revive the cause before the same can be further proceeded upon; and all the orders for the revival of the proceedings, must be served on the adverse party, to the end that he may take notice that the suit is revived. (f) So if a defendant dies, the suit is abated; and if it is a personal demand against him, the bill must be to revive and answer against the representative of such defendant. (g) If two joint tenants exhibit their bill and one releases, this will not abate the other. 2 Freeman, 6th. seems of tenants in common, for a right descends to their representatives. (h) Where a suit abates, it is said that the plaintiff may bring an original bill, or a bill of revivor, at his election. (i) On a plea of abatement for want of proper parties, it is discretionary in the court either to dismiss the bill without prejudice, or to give leave to amend upon the payment of costs of the day. (j) 21 Where a testator had pleaded to a bill, and died before the plea was argued, the executor must plead de novo; for the first cannot be argued now. (k) Bill of Revivor and Supplement. Bill of revivor and supplement is usually filed, where the event which occasions the abatement is accompanied with other circumstances necessary to be stated to the court. In order to obtain a complete decree, such circumstances must be stated to the court by way of supplemental bill added to the bill of revivor. (a) 22 Cross Bill. Is in the nature of a defence, and was first allowed, that the party might state his own case more to his advantage than he could by his answer. (a) It must be brought before publication is passed on the first bill, and not after, except the plaintiff in the cross bill go to the hearing on the depositions already published; because of the danger of perjury and subornation, if the parties should, after publication of the former depositions, examine witnesses de novo to the same matter before examined unto. (b) Where there are cross bills, the defendant in the first bill must generally answer before the defendant in the last shall be compelled to put in his answer. (c) Lord Hardwicke desired it might be observed, that in all cases of a cross bill, after the original cause was proceeded in, motion to enlarge publication should be special, on notice to the other party that the court might judge of the propriety of granting such motion (k) 1 Har. 127. Michlethwaite v. Calverly and Baker. Cases in Equity Tem, Talbot, 8. (a) Hinde, 52. Ca1 Har. 135. Moseley, 881. on circumstances shewn in support of it; and that such motion should be of course, as it is in cases where the original is not proceeded in, for otherwise it would be easy to delay hearing by that means. (d) Bill of Review. No decree shall be reversed, altered, or explained, but upon a bill of review. (a) No bill of review shall be admitted except it contain either error in law appearing on the body of the decree, without further examination of matters of fact, or some new matter which hath arisen in time after the decree, and not any new proof which might have been used when the decree was made. (b) · Nevertheless, upon the mere proof that is come to light, after the decree made, and which could not possibly have been used at the time when the decree passed,a bill of review may be grounded by the special license of the court, and not otherwise. (c) And the leave of the court is never obtained in the first instance but upon allegation on oath, that the new matter could not be produced or used by the party preferring this bill at the time this decree was pronounced, and the court upon the new matter being discovered will decree upon its relevancy or irrelevancy, and permission to file a bill of review will accordingly depend on such decision. (d) When a bill is grounded upon discovery of new matter, an affidavit must be made by the complainant, stating that such new matter was subsisting at the time of pronouncing the decree, and that it came within his knowledge since the hearing, and of which he or his (d) Idem, 2 Ves. 36. (a) Hinde, 56. (b) Idem. (e) Idem, Lord Bacon, Ord. 1. 23 24 agents were not at the time apprized, and which could not be had or used at the time. (e) In England it is necessary to make a deposit of 50%. with the register, and a certificate thereof obtained, (ƒ) and on application by motion and upon having the affidavit read, and producing the certificate, the court will exercise its discretion whether to permit such bill to be filed or not: so in like manner if the application is made by petition, the affidavit must be annexed to the petition and a certificate from the register of the deposit. (g) Obedience should be paid to the sentence as far as it can be paid without prejudice to the right of the party in the cause so to be reviewed. (h) No bill of review shall be admitted, or any new bill to change matter decreed, except the decree be first obeyed and performed: as if it be for land, that the possession be yielded; if it be for money, that the money be paid; if it be for evidences, that the evidences be brought in; and so in other cases which stand upon the strength of the decree alone. (i) A decree can never be impeached by an original bill; it can only be questioned by a bill of review. (j) Bill in the nature of a Bill of Review. When a decree is neither signed nor inrolled, and any new matter has been discovered since the decree, the decree may be examined into and revised upon a species of supplemental bill in the nature of a bill of review. (a) No supplemental, or new bill in the nature of a bill of review, granted upon any new matter discovered, or pretended to be discovered, since the pro (e) Hinde, 57. (g) Hinde. 57,8. (h) Idem. 58. (i) Hinde. 58,9. Lord Bacon, Ord. 3. |