Abatement And Revival

In Chancery Practice. A suspension of all proceedings in a suit, from the want of proper parties capable of proceeding therein. It differs from an abatement at law in this; that in the latter the action is entirely dead and cannot be revived; but in the former the right to proceed is merely suspended, and may be revived by a supplemental bill in the nature of a bill of revivor; 3 Bla. Com. 301; Boynton v. Boynton, 21 N. H. 246; Sto. Eq. PI. § 20 n. § 354; Ad. Eq. 403; Mitf. Eq. PL, by Jeremy 57; Brooks v. Jones, 5 Lea (Tenn.) 244; Clarke v. Mathewson, 12 Pet. (U. S.) 164, 9 L. Ed. 1041; Kronenberger v. Heinemann, 104 111. App. 156; Zoellner v. Zoellner, 46 Mich. 511, 9 N. W. 831; where interest is transmitted by act of law, as to personal representative or heir a simple bill of revivor may be used; Story, Eq. PI. § 364; Feemster v. Markham, 2 J. J. Marsh. (Ky.) 303, 19 Am. Dec. 131; Putnam v. Putnam, 4 Pick. (Mass.) 139; but where by virtue of act of party, as to devisee, an original bill in the nature of a bill of revivor must be used; Russell v. Craig, 3 Bibb (Ky.) 377; Wood v. Dummer, 3 Mas. 308, Fed. Cas. No. 17,944. ^ Generally speaking, if any property or right in litigation is transmitted to another, he is entitled to continue the suit, or at least have the benefit of it, if he be plaintiff; Talmage v. Pell, 9 Paige, Ch. (N. Y.) 410; or it may be continued against him, or at least perfected, if he be defendant; Story, Eq. PI. §§ 332, 442; Sedgwick v. Cleveland, 7 Paige. Oh. (N. Y.) 290; Sinclair v. Realty Co., 99 Md. 223, 57 Atl. 664. See Pabties. Death of a trustee does not abate a suit, but it must be suspended till a new one is appointed; Shaw v. R. Co., 5 Gray (Mass.) 162; and the further proceedings must be by supplemental bill in the nature of a bill of revivor, setting forth the proceedings and Ed. 85. And where there was a failure to perform duties of a fiduciary nature, carrying compensation, the remedy therefor survived; Warren v. Shoe Co., 1GG Mass. 97, 44 N. E. 112. The death of the owner of the equity of redemption abates a foreclosure suit; Wright v. Phipps, 58 Fed. 552; but the i complainant in a bill to redeem was held not entitled to prosecute it; Smith v. Scanning, 0 Mass. 422; though now the rlghl of an administrator to redeem is given by statute to an administrator; and in a late case it was held that the right to redeem under a deed absolute on its face, but in fact a mortgage, Is based on failure to perform a duty of a fiduciary character and the right of action survives; Clark v. Seagraves, 18G Mass. 430, 71 N. E. 813. There are some cases, however, in which a court of equity will entertain application notwithstanding the suit is suspended: thus, proceedings may be had to preserve property in dispute; Washington Ins. Co. v. Slee, 2 Paige, Ch. (N. Y.) 308; to pay money out of court where the right is clear; 6 Ves. 2.~0; or upon consent of parties; 2 Ves. 399; to punish a party for breach of an injunction; Hawley v. Bennett, 4 Paige, Ch. (N. Y.) 103; to enroll a decree; 2 Dick. 612; or to make an order for the delivery of deeds and writings; 1 Ves. 185. On a bill to set aside a deed, the heirs at law or devisees of a deceased complainant, and not the executor (unless title is vested in him under the will), should file the bill of revivor; Webb v. Janney, 9 App. D. C. 41. The death of the complainant in a bill of discovery after answer abates it and the suit cannot be revived; its purpose is accomplished; Horsburg v. Baker, 1 Pet. (U. S.) 232, 7 L. Ed. 125. Although abatement in chancery suspends proceedings, It does not put an end to them; a party, therefore, imprisoned for contempt Is not discharged, but must move that the complaint be revived in a specified time or the bill be dismissed and himself discharged; Dan. Ch. Pr. (6th Am. ed.) *.1543. Nor will a receiver be discharged without special order of court; Mc Cosker v. Brady, 1 Barb. Ch. (N. Y.) 329. A suit in equity for relief against infringement of a patent does not abate by the death of the plaintiff; Illinois Cent. R. Co. v. Turrill, 110 U. S. 301, 4 Sup. Ct. 5, 28 L. Ed. 154; nor does a suit in Admiralty for prize money; Penhallow v. Doane, 3 Dall. (U. S.) 54, 1 L. Ed. 507. The assignee of the rights of a complainant may proceed by bill of revivor in the old suit or begin a new one; Botts v. Coziue, 1 Hoffni. Ch. (N. Y.) 79. In order to recover damages caused by injunction, it is unnecessary to revive a cause In which a preliminary injunction was isaction on the bond; Grissler v. Stuyvcsant, 1 Hun (N. Y.) 116, 3 Thomp. & C. All declinatory and dilatory pleas in equity are said to be pleas in abatement, or in the nature thereof; see Story, EJq. PL I 708: Bea. Eq, 55; Coop. Eq. PL 236. And such He. is must be pleaded before a plea in bar. if at all; Story, Eq. PI. § 70! 'tus v., 7 Johns. Ch. (N. Y.) 214; Keudrick v. Whitfield. 20 Ga. 379. See I' Of Freehold. The unlawful entry upon and keeping possession of an estate by a stranger, after the death of the a: and before the heir or devisee takes j sion. It is a species of ouster by intervention between the ancestor or devisor and the heir or devisee, thus defeating the rightful possession of the latter; 3 Bla. Com. 167; Co. Litt. 277a.; Cruise. Dig. P.. 1, 60. By the ancient laws of Normandy, this term was used to signify the act of one who, having an apparent right of possession to an estate, took possession of it lmmedj after the death of the actual possessor, before the heir entered. Howard, Ancicnncs, Lois des Franrais, tome 1, p. 539. Of Legacies. The reduction of a legacy, general or specific, on account of the In clency of the estate of the testator to pay his debts and legacies.. Wh< d the estate of a testator is insufficient to pay both debts and legacies, it is thi that the general le te proportionally to an a, nt to pay the debts; Towle v. Swasey, 106 Mas-. Appeal of Trustees of University of Pennsylvania, 97 Pa. 187. If the general leg are exhausted before the debts are then, and not till then, the specif] abate, and proportionally; 2 B and note; Bacon, Abr. Leg. II; 2 P. \ 383; 1 Ves. Sen. 564; Brant v. 2S0; Armstrong's Appeal, 63 Pa. 312. See Legacy. In Revenue Law. The deduction from, or the refunding of, duties sometimes made at the custom house, on account of damages received by goods during importation or while in store. See R. S. § 28 Of Nuisances. The removal of a nuisance. 3 Bla. Com. 5; Poll. Torts 210. See NUI-