revivor.8 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 entitled 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 unnec essary. 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.

the order made upon it.89 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

Such answer is liable to exceptions

§ 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.

94

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

97 2 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.

§ 875. Form of order on complainant's neglecting to obtain order to revive.

[Title of court and cause.]

On reading and filing an affidavit showing the default of the complainant in not obtaining an order to revive this suit, on motion of W. H., solicitor for defendants, and on hearing J. E., solicitor for the complainant, in opposition thereto, it is ordered that the complainant do proceed and obtain such order to revive within ten days after notice of this order, or that the bill of revivor filed in this cause be dismissed, with costs [or, that the said defendants be at liberty to draw up such order],100

§ 876. Form of order to revive on answer consenting to revive. [Title of court and cause.]

On reading and filing the answer of the defendant, C. D., to the bill of revivor filed herein, submitting that this suit and the proceedings had therein may stand and be revived against him, and on reading due proof of service of notice of this motion on the solicitor for the said defendant, and on motion of J. E., solicitor for the complainant, it is ordered that this suit and the proceedings had therein do stand and be revived against the said defendant, and be in the same plight and condition as the same were at the time of the abatement thereof.101

§ 877. Hearing.

The necessity for bringing a bill of revivor to a hearing depends upon whether the object of such bill has been accomplished by the order to revive. If it merely prays that the suit be revived, a hearing will be unnecessary, unless an answer has been put in, contesting the complainant's right to revive, as the object will be effected by the order to revive. This will apply equally to cases in which the bill is filed by the complainant or his representatives, or after a decree by a defendant or his representatives. The mere order to revive will in such case be effectual against both complainants and defendants.102 Upon an answer contesting the right to revive, the

100 This form is taken from 2 Barbour, Ch. Pr. 541. 101 This form is taken from 2 Barbour, Ch. Pr. 544.

102 2 Barbour, Ch. Pr. 56; Day v. Potter, 9 Paige (N. Y.) 645; Pruen v. Lunn, 5 Russ. 3.

cause must proceed in the same manner as upon other bills, and the matters of fact be ascertained and those of law determined as usual. It is brought on in the usual mode, notwithstanding an order to revive has been obtained; upon which the right to revive must be established, or the suit fails. If the decision is in favor of the bill, the order will be that the original suit stand revived and be carried on between the parties to such suit in like manner as between the parties to the original suit.103 Whenever a bill contains supplemental matter, as well as matter of revivor, a hearing must be had, and it must be set down for hearing as well against the party to the revivor as the party to the supplemental matter.10 If the bill of revivor prays for an admission of assets by the representative of a deceased party, and the defendant admits assets, the cause may proceed against him upon the order of revivor merely. If he does not so admit, it must be heard for the purpose of obtaining the necessary accounts of the estate to answer the demands against it.105 Where the decree in the original suit contains a specific direction, that direction cannot be executed by the mere order to revive, but a decree must be made in the revived suit for that purpose.' 106 If the bill of revivor is filed before decree, it may, if the original cause has not been heard, be heard together with it. If such original cause has already been set down, it must be heard separately, and, in respect to costs, is considered as a separate cause until decree.107 If there has been a decree in the original cause, the bill of revivor must, if necessary to be heard, be heard separately, or it may be directed to come on for hearing with the cause upon further directions.108 On a bill to revive a decree, matters litigated

103 2 Barbour, Ch. Pr. 56; 1 Hoffman, Ch. Pr. 383; Day v. Potter, 9 Paige (N. Y.) 645; Harris v. Pollard, 3 P. Wms. 348.

104 2 Barbour, Ch. Pr. 56; Lake v. Austwick, 4 Jur. 314.

105 2 Barbour, Ch. Pr. 57; Mitford, Eq. Pl. 76.

106 2 Barbour, Ch. Pr. 57; Harries v. Johnson, 3 Younge & C. 583.

107 2 Barbour, Ch. Pr. 57.

108 2 Barbour, Ch. Pr. 57.