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.

79 2 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.

revivor.84

A defendant to a bill of revivor cannot support as a defense a plea which has been pleaded by the original defendant and overruled. But if a plea has been put in, and the original defendant has died before argument, the defendant to the bill of revivor may plead the same matter de novo.85

§ 870. Answer.

To prevent the order of revivor, either a plea or demurrer must be put in to the bill of revivor.se The putting in of an answer is treated as a waiver of objections to the bill, and as an admission that it is a good bill of revivor, and that it may properly be filed by the party complainant, upon which, notwithstanding anything that may be contained in the answer, it is a matter of course to draw up the order to revive.87 Though the defendant cannot, by answer, prevent the reviving of the suit, he may, if required to answer the bill, controvert in his answer the complainant's title to revive; and if he does so, and succeeds in showing at the hearing that the complainant was not enti tled to revive, or if the complainant fails to establish his right to revive, the latter takes nothing by his suit.88 The answer must be confined to such matters as are called for by the bill, or which would be material to the defense, with reference to

84 2 Barbour, Ch. Pr. 53; Hollingshead's Case, 1 P. Wms. 742; Perry v. Jenkins, 1 Mylne & C. 118; Mason v. Hartford, P. & F. R. Co., 19 Fed. 53. See Shainwald v. Lewis, 69 Fed. 487; Hubbell v. Lankenau, 63 Fed. 881; Riely v. Kinzel, 85 Va. 480, 7 S. E. 907; Peer v. Cookerow, 13 N. J. Eq. 136.

85 2 Barbour, Ch. Pr. 53; Samuda v. Furtado, 3 Brown Ch. 70. 86 2 Barbour, Ch. Pr. 50; Harris v. Pollard, 3 P. Wms. 348; Lewis v. Bridgman, 2 Sim. 465; Codrington v. Houlditch, 5 Sim. 286.

87 2 Barbour, Ch. Pr. 50, 54; Nanney v. Totty, 11 Price, 117; Day v. Potter, 9 Paige (N. Y.) 645. Though, where an answer is called for, the defendant may by it object to the revivor, yet if it be a mere bill of revivor, in which the question between the parties is simply as to the right to revive, an answer, unless required by the bill, is unnecessary. 2 Barbour, Ch. Pr. 54.

88 2 Barbour, Ch. Pr. 50; Douglass v. Sherman, 2 Paige (N. Y.) 358; Harris v. Pollard, 3 P. Wms. 348; Day v. Potter, 9 Paige (N. Y.) 645; Lasco v. Moys, Bunb. 144.

90

the order made upon it.89 Such answer is liable to exceptions for impertinence and insufficiency, the same as an answer to an original bill. It must be signed by counsel, and may be put in and filed in the same manner as other answers, which it resembles in all other points.91 Defenses not made in an answer to the original bill cannot be set up in an answer to a bill of revivor, since such bill puts in issue nothing but the character of the new party brought in.92

§ 871. Replication.

If the answer does not admit the complainant's title to revive, or state any circumstances which he is desirous of controverting, it must, if the abatement has occurred after decree, or after issue joined in the original suit, be replied to, after which the proceedings upon it will be the same as upon an original bill. If the bill of revivor is filed before decree, or before issue joined in the original cause, a separate replication is unnecessary.93

§ 872. Order to revive.

In all cases where the suit abates, an order to revive is necessary, and it is not regular to wait until the hearing, and then proceed to revive by decree. But where a suit abates by the death of the complainant, those who succeed to his rights may apply to the court to punish a breach of an injunction which has taken place either before or after his death, as soon as they have taken the preliminary steps to revive the suit by bill

89 2 Barbour, Ch. Pr. 54; Nanney v. Totty, 11 Price, 117; Wagstaff v. Bryan, 1 Russ. & M. 28.

90 2 Barbour, Ch. Pr. 54. The defendant may, by his answer, consent that the suit be revived. In that case the complainant may obtain an order of course for the revival of the suit. 2 Barbour, Ch. Pr. 55.

91 2 Barbour, Ch. Pr. 55.

92 Fretz v. Stover, 22 Wall. (U. S.) 198.

93 2 Barbour, Ch. Pr. 55; Catton v. Carlisle, 5 Madd. 427.

941 Smith, Ch. Pr. 522; 2 Barbour, Ch. Pr. 49; Day v. Potter, 9 Paige (N. Y.) 645.

of revivor. It is not necessary for them to wait until a decree of revivor is actually obtained.95 If the complainant does not proceed to obtain an order to revive, the defendant may move that he proceed to revive within a specified time, or that the bill of revivor be dismissed.96 Or the defendant may obtain an order that the complainant, within a certain time, procure an order to revive the suit, or that, in default thereof, the defendant be at liberty to draw up such order.97

§ 873. Form of order to plead or demur to bill of revivor.

[Title of court and cause.]

On filing the bill of revivor against N. O. and P. R., executors of C. D., and on motion of J. E., solicitor for complainant, it is ordered that the said defendants do, within ten days after service of a copy of said bill, plead or demur to the same, or that, in default thereof, this suit be revived and proceed in the names of the said N. O. and P. R., executors as aforesaid, as defendants.98

§ 874. Form of order to revive.

[Title of court and cause.]

On reading and filing an affidavit showing the default of the defendants N. O. and P. R., executors of C. D., in not pleading or demurring to the bill of revivor filed in this cause within the time required by the order of this court made on the

day of

last, and on motion of J. E., solicitor for the complainant, no one appearing on the part of the defendants, it is ordered that this suit stand revived, and proceed against the said N. O. and P. R., executors as aforesaid, as defendants.99

95 Hawley v. Bennett, 4 Paige (N. Y.) 163.

96 2 Barbour, Ch. Pr. 49;

v. Bingham, 4 Sim. 483.

Bolton v. Bolton, 2 Sim. & S. 371; Troward

972 Barbour, Ch. Pr. 49; Gordon v. Bertram, 1 Mer. 154; Whitebear v. Hughes, 1 Dickens, 283. Where a demurrer is overruled, the court should not order the demurrant to plead or answer the bill, but should proceed immediately to make the order reviving the decree. Nye v. Slaughter, 27 Miss. 638. See, for practice in the federal courts, Unit ed States Equity Rule 56.

98 This form is taken from 2 Barbour, Ch. Pr. 540.

99 This form is taken from 2 Barbour, Ch. Pr. 540.