as to the other part by another. Thus, if the rights of a complainant in a suit upon his death become vested, part in his heir, and part in his personal representative, each may revive the suit, so far as concerns his title.20 But while a suit may be revived as to a part of the matter in litigation, it cannot be revived as to a part only of the proceedings. A revivor cannot be made to operate from a particular period of the proceedings only, but the whole proceedings, bill, answer, and orders made in the cause, must stand revived, for the revivor is but a continuance of the same suit, and it cannot be a continuance of the same unless it proceeds from where the other left off.21

852. Revival for costs.

It is a general rule that no suit shall be revived for costs merely unless such costs are taxed and report thereof made in the life-time of the party; but if costs are to be paid out of an estate, the suit may be revived for them.22 This rule, however, is not favorably regarded,23 and has been disregarded.24 To obtain the costs, the executor or personal representatives must be before the court expressly in their character as such; for if the bill of revivor states the complainants to be the heirs and devisees of the party deceased, though some of them be in fact executors, they are only before the court in their former character.25 The rule does not apply where anything else is directed by the decree which remains unexecuted.26 Whether

20 2 Barbour, Ch. Pr. 37; Mitford, Eq. Pl. 63; Cooper, Eq. Pl. 71; Hoffman v. Tredwell, 6 Paige (N. Y.) 308; Ferrers v. Cherry, 1 Eq. Cas. Abr. 3, 4; Owings' Case, 1 Bland (Md.) 409; Hord v. Marshall, 5 Dana (Ky.) 495.

21 2 Barbour, Ch. Pr. 37.

22 Story, Eq. Pl. § 371; 2 Barbour, Ch. Pr. 35; Jupp v. Geering, 5 Madd. 375; Hall v. Smith, 1 Brown Ch. 438; Blower v. Morrets, 3 Atk. 773; Johnson v. Thomas, 2 Paige (N. Y.) 377; Kemp v. Mackrell, 2 Ves. Sr. 580; Morgan v. Scudamore, 3 Ves. 195.

23 Johnson v. Peck, 2 Ves. Sr. 465; Glenham v. Stutwell, 1 Dickens, 14. 24 Owings' Case, 1 Bland (Md.) 370, 409; Ridgely v. Bond, 18 Md. 433. 25 Travis v. Waters, 1 Johns. Ch. (N. Y.) 85.

26 2 Barbour, Ch. Pr. 35; Johnson v. Peck, 2 Ves. Sr. 465.

the abatement occurs by the death of the party who is to pay, or of the party who is to receive, the costs, is of no consequence.27 § 853. Revival for appeal.

A defendant has been allowed to file a bill of revivor in order to enable him to appeal from a decree where the complainant died before the defendant brought an appeal.28

§ 854. To give effect to action of court of review.

Where a party complainant died pending appeal, and the appellate court reversed the decree and remanded the cause with directions, the defendant was allowed to file a bill of revivor against the personal representatives of the deceased complainant and the surviving complainants, and the order directed such personal representatives and surviving complainants to show cause why a decree should not be entered to carry into effect the decree of the appellate court.2

29

§ 855. Revivor on bill and cross bill, and on decree in several suits.

Wherever there is an original bill and cross bill thereto, if an abatement takes place, there must generally be a bill of revivor in each case; but if the bills relate to an account, and there is a decree for an account, the two causes become thereby so consolidated that one bill of revivor praying for a revivor of the whole revives both causes.30 Where one decree has been taken in several suits, and an abatement afterwards occurred, one bill of revivor is sufficient.31

§ 856. Who may revive-Before decree.

Upon abatement by death, before decree, of a sole complain

27 2 Barbour, Ch. Pr. 35; Jupp v. Geering, 5 Madd. 375.

28 Peer v. Cookerow, 13 N. J. Eq. 136; Anderson v. White, 10 Paige (N. Y.) 575.

29 Rogers v. Paterson, 4 Paige (N. Y.) 409. See, also, Ashley v. Cunningham, 16 Ark. 168.

30 2 Barbour, Ch. Pr. 38; Story, Eq. Pl. § 363; Cooper, Eq. PL 64. 31 2 Barbour, Ch. Pr. 38; Moore v. Elkington, 2 Beav. 574.

ant in a suit in equity, the only person entitled to revive such suit is the representative, real or personal, as the case may be, of the person deceased, unless the bill was originally filed by the complainant in a representative capacity, in which case the party to revive will be the individual in whom the representation of the deceased person is vested, and not the representative of the original complainant, unless such representative is also clothed with the character of representative of the original testator or intestate.82 If abatement has occurred by the death of one of several complainants, the suit may be revived by the representative of the deceased complainant, in conjunction with or separately from the surviving complainants, who must, however, be made parties.33 One of such surviving complainants may, if the others refuse to join, file a bill of revivor making the other surviving complainants, as well as the representatives of the deceased complainant, defendants.34 On the marriage of a female complainant, the suit may be revived by husband and wife jointly, or, if the property in litigation is the wife's separate property, the bill must be filed on the part of the wife by a next friend. Such a bill, however, can hardly be a bill of revivor alone, but must be accompanied by a supplementary statement to show the settlement under which the wife became entitled to a separate estate.

$ 857.

85

Defendant not entitled to revive before decree.

In no case, before decree, can the defendant, or those claiming under him, revive a suit by a bill of revivor, as the ground upon which a defendant can revive must be that he has some interest under the decree.36 Where a suit is abated by the death

82 2 Barbour, Ch. Pr. 39; Benson v. Wolverton, 16 N. J. Eq. 110; Souillard v. Dias, 9 Paige (N. Y.) 393; Reid v. Stuart's Ex'r, 20 W. Va. 382; Newcombe v. Murray, 77 Fed. 492.

33 2 Barbour, Ch. Pr. 40; Fallowes v. Williamson, 11 Ves. 309.

34 2 Barbour, Ch. Pr. 40; Finch v. Winchelsea, 1 Eq. Cas. Abr. 2.

35 2 Barbour, Ch. Pr. 40. For right of new corporation succeeding

to rights of old corporation in property involved in foreclosure, see Keokuk & W. R. Co. v. Scotland Court, 152 U. S. 318.

18 2 Barbour, Ch. Pr. 41; Souillard v. Dias, 9 Paige (N. Y.) 393;

of some of the defendants, and before decree, the proper course for the survivor, if he wishes to speed the cause, is to move for an order that the complainant revive the suit within such time as shall be directed by the court, or that his bill be dismissed with costs.37

§ 858. Who entitled to revive after decree.

The case is different after decree, and the suit may then be revived at the instance of a defendant, if the complainants, or those standing in their rights, neglect so to do. It was at one time held that the right of the defendant so to do extended only to the single case of a decree to account. By the modern decisions, such right has been extended to every case in which the defendant can derive a benefit from the further proceeding.38 And so it is held that, after decree, complainants and defendants being equally entitled to the benefit of a decree, either have a right to revive it.39 Where both parties have the right to revive, the complainant is given a reasonable time so to do, but, if he does not revive the suit within a reasonable time, the defendant may revive.40 If an abatement takes place

Benson v. Wolverton, 16 N. J. Eq. 110; Horwood v. Schmedes, 12 Ves. 311; McDermott v. McGown, 4 Edw. Ch. (N. Y.) 593; Livermore v. Bainbridge, 49 N. Y. 125.

37 Bolton v. Bolton, 2 Sim. & S. 371; Harrington v. Becker, 2 Barb. Ch. (N. Y.) 75; Adamson v. Hull, 1 Sim. & S. 249; Livermore v. Bainbridge, 49 N. Y. 125.

88 2 Barbour, Ch. Pr. 42; Souillard v. Dias, 9 Paige (N. Y.) 393; Anonymous, 3 Atk. 692; Williams v. Cooke, 10 Ves. 407; Horwood v. Schmedes, 12 Ves. 311; Gordon v. Bertram, 1 Mer. 154; Griffin v. Spence, 69 Ala. 393. "When the defendants have acquired such an interest in the cause that the plaintiff would not be allowed to dismiss the cause at his pleasure, or where there has been such an order of reference in the cause as that, if a balance should be found in favor of the defendant, he would be entitled to a decree against the plaintiff, and, in that stage of the cause, the plaintiff dies, the defendant would have a right to revive by bill of revivor." Reid v. Stuart's Ex'r, 20 W. Va. 382.

89 Peer v. Cookerow, 13 N. J. Eq. 136; Benson v. Wolverton, 16 N. J. Eq. 110; Livermore v. Bainbridge, 49 N. Y. 125.

40 2 Barbour, Ch. Pr. 42; Pendleton v. Fay, 3 Paige (N. Y.) 205;

after decree, and the complainant files a bill of revivor, but neglects to obtain the order to revive, upon the expiration of the usual time the defendant may, if he is entitled to file a bill of revivor, move that the suit be revived, and he be at liberty to carry it on.41 A person applying to revive must have some interest under the decree, that is, an interest in the further prosecution of the suit. Where the object of the revivor is not to continue the suit, but merely to put an end to an injunction, and to be allowed to proceed at law, a bill of revivor by the defendant will be demurrable.42 Where the suit abates by the death of either party pending an injunction, the defendant or his representatives must move that the complainant or his representatives revive the suit within a reasonable time, or that the injunction be dissolved.43

$859. Applicant to revive must claim only by operation of law.

The party seeking to revive must claim only by operation of law.44 Therefore a devisee or alienee cannot bring a bill of revivor for want of privity. Neither can an assignee or purchaser maintain a bill of revivor;45 for a revivor is but a continuation of the cause, and can only be had in the name of the representative of him by whose death it abated. And as the heir is, as to the real estate, the legal representative of a man after his death, the suit can only be revived in his name when land is the subject of litigation; and as the personal representative is, as to the personalty, the legal representative of a man after his death, the suit can only be revived in his name when

Quackenbush v. Leonard, 10 Paige (N. Y.) 131; Leggett v. Dubois, 2 Paige (N. Y.) 211.

41 2 Barbour, Ch. Pr. 43.

42 2 Barbour, Ch. Pr. 42; Horwood v. Schmedes, 12 Ves. 311.

43 Leggett v. Dubois, 2 Paige (N. Y.) 211; Hawley v. Bennett, Paige (N. Y.) 163; Chandos v. Talbot, Sel. Cas. t. King, 24; Hill v. Hoare, 2 Cox, 50.

44 2 Barbour, Ch. Pr. 43.

45 Peer v. Cookerow, 14 N. J. Eq. 361; Dunn v. Allen, 1 Vern. 426; Russell's Heirs v. Craig's Devisee, 3 Bibb (Ky.) 377; Backhouse V. Middleton, 1 Ch. Cas. 174.