admission of assets by a representative of a deceased party is requisite, it must pray that, if the defendant do not admit assets to answer the purposes of the suit, the accounts may be taken.71 In this latter case, if the defendant does admit assets, the case may proceed against him upon an order of revivor merely. If not, it must be heard for the purpose of obtaining the necessary accounts of the estate to answer the demands made against it by the suit.72 If the defendant to an original bill dies before putting in an answer, or after an answer to which exceptions have been taken, or after amendment of the bill to which no answer has been given, the bill of revivor, though requiring in itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original bill, or so much of it as the exceptions extend to, or of the amendments as remain unanswered.78 If the bill seeks merely to revive the suit, it prays simply for a subpoena to revive. If it requires an answer, as in the case of a bill against an executor requiring him to admit assets, it should pray a subpoena to revive and answer.74 A bill of revivor must be signed by counsel.75 712 Barbour, Ch. Pr. 47. 72 Story, Eq. Pl. § 374. 73 Mitford, Eq. Pl. 76; 2 Barbour, Ch. Pr. 47; Story, Eq. Pl. § 375. The common prayer in the case of a bill of revivor on the death of the complainant is: "To the end, therefore, that the said defendant may answer the premises, and that the said suit and proceedings which so became abated as aforesaid may stand revived, and be in the same plight and condition as the same were in at the time of the death of the said J. A., or that the said defendant may show cause to the contrary: May it please, etc." On the death of the defendant, it is as follows: "Therefore that the said suit and proceedings which became so abated by the death of the said N. S. may stand and be revived against the said T. R., and be in the same plight, state, and condition as the same were in at the time of the abatement thereof, and that complainant may have the benefit thereof, or that the said defendant, T. R., may show cause why the said suit and proceedings should not be so revived, and that the same may be revived accordingly.” Van Heythuysen, Eq. Drafts. 341, 342. 74 2 Barbour, Ch. Pr. 48. 75 2 Barbour, Ch. Pr. 48. (929) 1 § 864. Form of bill of revivor against executors of a deceased defendant. [Title of court and cause, and address to the court.] day of Complaining, shows unto your honors your orator, A. B., that on or about the your orator exhibited his bill of complaint in this honorable court against C. D., of and E. F., of -, etc., and R., his wife, thereby praying, etc. [here state the prayer]. That the said defendants, having been served with process of subpoena for that purpose, duly appeared and put in their answers to the said bill, and divers other proceedings were had in the said cause, and the same came on to be heard on or about the day of before this honorable court, whereupon a decretal order was made in the said cause, and G. H., Esq., one of the masters of this court, to whom this cause was referred thereby, afterwards made a report in the said cause, which said report was duly confirmed, as by the said bill, answer, decree, report, and the other proceedings in the said cause, now remaining duly filed as of record in this honorable court, reference being thereunto had, will more fully appear. And your orator further shows unto your honors that the said C. D. departed this life on or about the day of -, and before any further proceedings were had in the said cause, having, in his lifetime, duly made and published his last will and testament, in writing, bearing date on or about the by appointed N. O. and P. R., the defendants herein named, executors thereof, who have, since the death of the said testator, duly proved his will before the and taken upon themselves the burthen of the execution thereof; and under and by virtue of such probate have possessed themselves of the personal estate of the said testator sufficient for the payment of his funeral and testamentary expenses and debts, and also to answer every demand of your orator thereon touching the matters in question in said cause. And the said suit having abated by the death of the said C. D., your orator is advised that he is entitled to have the same, and the several proceedings therein, revived against the said N. O. and P. R. as executors of the said C. D., and restored to the condition in which they were at the time of the death of the said C. D. court of day of and there To the end, therefore, that the said N. O. and P. R. may, upon their several and respective oaths, full, true, perfect, and distinct answer make to the several matters aforesaid [if answer under oath is waived, state such fact as in form of original bill, supra, § 69], and particularly that they, in like manner, answer and set forth whether your orator did not, at or about the time aforesaid, and when, exhibit his original bill of complaint in this honorable court against such persons and for such purposes as therein and herein before mentioned. And whether such decree and report and other proceedings as aforesaid have not been made in the said cause. And whether the said C. D. did not depart this life at or about the time aforesaid, and publish his last will and testament in writing of such date as aforesaid, and thereby appoint the said N. O. and P. R., respectively, executors thereof. And whether they have not proved the said will, before the proper court, and taken upon themselves the burthen of the execution thereof. And whether they, or one and which of them, have or has not possessed sufficient of the personal estate and effects of the said testator to satisfy his funeral and testamentary expenses and debts, and also every demand of your orator thereon touching the matters in question in this cause, or how otherwise. And that the said N. O. and P. R., respectively, may either admit assets of the said C. D. come to their hands, sufficient for the purposes aforesaid, or that they may set forth an account of his personal estate possessed by or on behalf of them, or either of them, and of the application and administration thereof. And that the suit and the proceedings thereon may stand revived against the said defendants N. O. and P. R. as such executors aforesaid, and be restored to the same plight and condition as they were in at the time of the said C. D.'s death, or that the said N. O. and P. R., respectively, may show good cause to the contrary; and in case the said executors shall not admit, to the satisfaction of this honorable court, assets sufficient to pay and satisfy your orator's said demand, then that an account may be taken by and under the decree of this honorable court of the said testator's estate and effects received by or for the use of them, the said N. O. and P. R., as such executors as aforesaid, or either of them, and of the application and administration thereof: May it please your honors to grant unto your orator the people's writ of subpoena to revive and answer, issuing out of and under the seal of this honorable court, to be directed to the said N. O. and P. R. as such executors as aforesaid, thereby commanding them, at a certain day and under a certain penalty, to be therein limited, personally to be and appear before your honors, in this honorable court, then and there to answer the premises, and to show cause, if they can, why the said suit and the proceedings therein had should not stand and be revived against them, and be in the same plight and condition as the same were in at the time of the abatement thereof; and further to stand to and to abide such order and decree in the premises as to your honors shall seem meet. And your orator shall ever pray, etc. A. B., Complainant. L. C., Solicitor for Complainant.76 § 865. Filing bill of revivor. A bill of revivor is to be filed in the same manner as an Te This form is taken from 2 Barbour, Ch. Pr. 537. original bill. Whenever a bill of this kind is necessary, it may be filed of course, without applying to the court for leave so to do.77 § 866. Process. If a party to the original suit does not voluntarily appear upon the filing of a bill of revivor, the complainant must proceed by subpoena to obtain an appearance to the same. The form of such subpoena is the same as that issued upon an original bill, except that it states the nature of the bill to which the defendant is required to appear. It is sued out and served in the same manner as an ordinary subpoena. Service upon the solicitor of the party in the original cause is insufficient.78 The complainant in a bill of revivor may proceed against a defendant who cannot be personally served with process by a substituted service, as provided by statute.79 § 867. Appearance. By the English practice, if the defendant, having been served with a subpoena, neglected to appear within the time limited thereby, an attachment might be issued to take him into custody, and then, if he was taken upon such attachment, and refused or neglected to enter an appearance within eight days after the return of such attachment, the complainant was entitled, as of course, upon motion or petition, to the common order to revive.80 772 Barbour, Ch. Pr. 48; Pendleton v. Fay, 3 Paige (N. Y.) 204; Lewis v. Bridgman, 2 Sim. 465. See, for practice in the federal courts, United States Equity Rule 56. 78 Brown v. Lee, 2 Dickens, 545; 2 Barbour, Ch. Pr. 48; Lawrence v. Bolton, 3 Paige (N. Y.) 294; Shields v. Craig's Adm'rs, 6 T. B. Mon. (Ky.) 373. See, for practice in the federal courts, United States Equity Rule 56. 792 Barbour, Ch. Pr. 48; Yates v. Payne, 4 Hen. & M. (Va.) 412; Duguid v. Patterson, 4 Hen. & M. (Va.) 445; Foster v. Burem, 1 Heisk. (Tenn.) 783. But see supra, § 129, note 41; Foster, Fed. Pr. (3d Ed.) § 96, quoted approvingly in Shainwald v. Davids, 69 Fed. 701. 80 2 Barbour, Ch. Pr. 49. A demurrer will lie either for want of privity, or for want of sufficient interest in the party seeking to revive, or for some imperfection in the frame of the bill. If a bill of revivor 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 brought, the defendant may, by demurrer, show cause against the revival. If the proper parties to the bill of revivor are not made, it is demurrable.81 It is said that a demurrer will not lie for want of a party who has not appeared to the original bill.82 § 869. Plea. If a bill of revivor is brought without sufficient cause to revive, and this fact is not apparent on the face of the bill, the defendant may plead the matter necessary to show that the complainant is not entitled to revive the suit against him; or, if the complainant is not entitled to revive the suit at all, though a title is stated in the bill so that the defendant cannot demur, the objection to the complainant's title may be taken by way of plea.83 If a person entitled to relief does not proceed in due time, he may be barred by the statute for limitation of actions, which may be pleaded to a bill of revivor. Yet where the bill of revivor is after a decree to account, it is not within, nor barred by, the statute of limitations. If a suit abates before decree, the statute of limitations is a good plea to the 81 2 Barbour, Ch. Pr. 51, 52; Cooper, Eq. Pl. 210; Story, Eq. Pl. §§ 617-626; Fallowes v. Williamson, 11 Ves. 306; Gould v. Barnes, 1 Dickens, 133; Nanney v. Totty, 11 Price, 117; University College in Oxon' v. Foxcroft, 2 Ch. R. 244; Pendleton v. Fay, 3 Paige (N. Y.) 204; Phelps v. Sproule, 4 Sim. 318; Humphreys v. Ingledon, 1 P. Wms. 753; Harrison v. Ridley, Comyn, 590; Crowfoot v. Mander, 9 Sim. 396; Horwood v. Schmedes, 12 Ves. 311; Metcalfe v. Metcalfe, 1 Keen, 74; Harris v. Pollard, 3 P. Wms. 348; Williams v. Cooke, 10 Ves. 406. 82 2 Barbour, Ch. Pr. 52. 83 2 Barbour, Ch. Pr. 53; Mitford, Eq. Pl. 289; Pendleton v. Fay. 3 Paige (N. Y.) 204. |