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who had been examined de bene esse had met with an accident, which would prevent him travelling, an order was made for the proper officer to attend at the trial with the original depositions, and if it were proved to the satisfaction of the Court of law, that the witness was unable to travel and attend, then the original depositions were to be tendered to be read in the Court of law.(1)

The Council of Sweden having refused to permit a commission to examine witnesses in chief to be executed, this Court allowed the depositions taken de bene esse to be read.(2) If the witnesses examined de bene esse happen to die before the party has an opportunity of examining them in chief, he applies by a special motion (of which [ *510 ] notice is required) *supported by the usual affidavit of the death of the witness, duly identified, that the clerk in court may publish and copy the depositions of such witness, which is done accordingly; and although there has been delay in the cause on both sides, yet if the

(1) Andrews v. Palmer, 1 V. & B. 21. (2) Gasson v. Wordsworth, 1 Amb. 108.

jurisdiction of the Court, or dead, or unable from sickness or old age to attend the trial. 1 Chit. Archb. 7th ed. 245; Gra. Prac. 2d ed. 586. And these facts, it seems, must be shown by other evidence than the statement in the deposition. Proctor v. Lainson, 7 Car. & P. 629, (32 Eng. Com. Law Rep. 663.)

As to what shall be considered sufficient proof of the absence of the witness, it has been held, that though his deposition could not be read whilst he actually remained in England, Anonymous, 2 Salk. 601, yet that it might be read, when he had actually sail. ed on his voyage, although the vessel, in which he had sailed, was driven back into port, by contrary winds. Fansick v. Agar, 6 Esp. 92; Ward v. Wells, 1 Taunt. 461. But the deposition of a witness, who had been examined on interrogatories, before a judge at chambers, was rejected, for want of sufficient proof of his being out of the country, where it was sworn that he was a seafaring man, belonging to a vessel lying in the Thames, but of what nature the vessel was, or whither she was bound, it did not at all appear. Falconer v. Hanson, 1 Campb. 171. And in all cases, where a deposition, taken de bene esse, is offered in evidence, the party offering it must prove, that he has used due diligence to procure the attendance of the witness, and particularly, that he has made inquiries at the last place of abode of the witness, in order to have him served with a subpoena. Pettibone v. Derringer, 1 Wash. C. C. Rep. 219. And in a late case in New York, evidence preliminary to the introduction of a deposition taken de bene esse, that the party offering it believed that the witness was absent from the state;-that the witness told the party, at the time of his examination, that he expected to leave the state;that previous to his examination, the party was in the habit of seeing him, but since had not seen him ;-was held to be sufficient; it appearing that the witness was a journey. man carpenter, without a fixed habitation, and in pursuit of employment. Guyon v. Lewis, 7 Wend. 26.

This preliminary proof must be furnished on a motion to publish the depositions taken de bene esse. The ordinary course of the Court is, not to allow their publication, unless the witness dies before issue is joined in the cause, so that there has been no opportunity to examine him in the ordinary course, or unless he is at a great distance, so that it is impossible to have him examined again. In such cases, an order for the publication may be obtained, on motion of course, supported by a proper affidavit. 2 Dan. Ch. Prac. 500. This preliminary proof, it would seem, may be made by a party to, or one interest. ed in, the suit. Jackson v. Kent, 7 Cowen, 59.

witness die before an opportunity of examining him in chief occurs, his depositions de bene esse may be published, saving just exceptions.(1)

The Court will not order the depositions de bene esse to be published, in order to compare them with the depositions in the same cause taken on an examination in chief.(2) It is too late at the hearing of a cause to object to the depositions taken de bene esse; the application should be to discharge the order for publication.(3)[a]

(I) Anon. 2 Ves. 496.

(2) Cann v. Cann, 1 P. W. 566.

(3) Dean and Chapter of Ely v. Warren, 2 Atk. 189.

[] See, fully, on the subject of this chapter, 2 Dan. Ch. Prac. 540-554.

CHAPTER X.

ABATEMENT OF A SUIT AND BILL OF REVIVOR.

In what manner suits abate, 511. Partial abatement, 512. Abatement by death of plaintiff or defendant, 512. By marriage, 513. By bankruptcy or insolvency, 514. Effect of abatement, 514. Abatement occasioned by death of defendant, 516. Effect of bankruptcy, 516. Of marriage, 516. Who is entitled to revive, 517. Revivor for costs, 518. Bill of revivor, 519. Order to revive, 520. Proceedings after abatement, 523. To prevent suit being revived, 524. Effect of abatement, 524. Supplemental bill, 525. Object of, 526. How prepared and framed and parties to, 527. Proceedings upon, 528. Supplemental bill, to what extent dispensed with by the effect of the new orders, 528.

A SUIT in equity abates or becomes defective by the death of any of the parties materially interested; by change or transfer of interest; or by operation of law. This abatement or defect in the suit sometimes affect all parties, in other cases it is only partial.[a] Thus, the death of a plaintiff abates the suit altogether, while the death of one of many defendants only abates the suit so far as the interest of that defendant is concerned.[6]

If any of the parties plaintiffs or defendants, die, who

[a] An abatement of a suit in equity, (as contradistinguished from a court of law, where it is an entire overthrow of the suit, so that it is quashed and ended, 3 Bl. Com. 168,) signifies only a present suspension of all proceedings in the suit, from the want of proper parties, capable of proceeding therein. It is not very accurately stated in the books, in what cases a suit becomes defective, without being absolutely abated, and in what cases it abates, as well as becomes defective. But, upon the whole, it may be collected, that if, by any means, any interest of a party to the suit in the matter in litigation becomes vested in another, the proceedings are rendered defective, in proportion as that interest affects the suit; so that, although the parties to the suit may remain as before, yet the end of the suit cannot be obtained. And if such a change of interest is occasioned by, or is the consequence of, the death of a party, whose interest is not determined by his death, or by the marriage of a feme plaintiff, the proceedings become likewise abated, or discontinued, either in whole or in part. For, as far as the interest of a party dying extends, there is no longer any person before the Court, by whom or against whom the suit can be prosecuted; a married woman is incapable, by herself, of prosecuting a suit. There is, also, the same want of accuracy in the books, in ascertaining the manner, in which the benefit of a suit may be obtained, after it has become defective, or abated, by an event subsequent to its institution, as there is in the distinction between the cases, where a suit becomes defective merely, and where it likewise abates. It seems, however, clear, that if any property or right in litigation, vested in a plaintiff, is transmitted to another, the person to whom it is transmitted is entitled to supply the defects of the suit, if it has become defective mercly, and to continue it, or at least to have the benefit of it, if it is abated. It seems also, clear, that if any property or right, before vested in a defendant, becomes transmitted to another person, the plaintiff is entitled to render the suit perfect, if it has become defective, or to continue it, if it has abated, against the person to whom that property or right is transmitted. Story's Eq. Pl. 289. 266, 267.

[b] Story's Eq. Pl. 289, 290.

are so far material parties, and so concerned in interest, as to make it necessary to have their representatives before the *Court, before there can be a final [ *512 ] determination of the cause, the suit abates.(1)

The death of the plaintiff abates the suit as against all parties.[a] If, however, the interest of the plaintiff who dies determines or survives to a co-plaintiff it is no abatement.[6] Thus, the death of a plaintiff after a decree in an interpleader suit is no abatement,(2)[c] nor is the death of a husband suing jointly with his wife,(3) in right of his wife,[d] although the wife may drop the suit if she pleases. Neither is the suit abated by the death of one of two or more plaintiff creditors suing in behalf of the creditors in general, nor by the death of one of two relators(4) or jointtenants.[e]

If, however, costs have been reserved under a decree, the defendants have a right to a continued representation of all the original plaintiffs as a security for costs, although they are not necessary parties.(5) The death of one of two plaintiffs, tenants in common, abates the suit.(6)

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(3) Where husband and wife file a bill in right of the wife, and a plea is overruled with costs, the wife by survivorship shall have the costs, Coppin v. -- 2 P. W. 495, on the principle that the suit was not abated. (4) Mitf. Pl. 91.

(6) Fallowes v. Williamson, 11 Ves. 306.

(5) Blackburn v. Jepson, 3 Swanst. 138.

[a] Douglass v. Sherman, 2 Paige, 360. If the whole ground of the suit has been removed by the death of the complainant, the Court will not hear an argument, merely to determine the question of costs. Johnson v. Thomas, 2 Paige, 377.

[b] On the death of a party to a suit in Chancery, if the cause survives to or against some other of the parties, so that a perfect decree, as to every part of the subject of litigation, can be made between the surviving parties, the suit does not abate as to the survivors; and, on motion of either party, the Court will order the suit to proceed between such survivors. Where the cause of action against a deccased party does not survive, but some third person becomes vested with his interest, or subject to his liabilities, the complainant may elect to proceed without reviving the suit against the representatives of a deceased party, provided a perfect decree can be made between the survivors, without bringing such representatives before the Court. Leggett v. Dubois, 2 Paige, 211.

[c] Where a bill in equity is merely ancillary to a suit at law, if the latter abates, the former does also. Robertson v. Bingley, 1 McCord's Ch. Rep. 347.

[d] But a suit brought by husband and wife, to recover a demand in right of the wife, abates by her death. Archer v. Colley, 4 Hen. & Munf. 410.

In a bill for dower, if the husband died seised, the death of the dowress, pending a suit for her dower, will not deprive her personal representatives of the arrears due at the time of her death; but they may revive the suit, for the purpose of obtaining such arrears of dower. But where the husband did not die seised of the premises, if a suit in Chancery abates by the death of the complainant, before her right to the dower is estab. lished, the personal representatives are not entitled to any arrears of dower, and there. fore cannot revive. Johnson v. Thomas, 2 Paige, 377.

[e] 1 Hoff. Ch. Prac. 368.

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41

The death of a defendant abates the suit only so far as his interest is concerned,[f] and although the plaintiff cannot bring his cause to a hearing unless all parties interested are before the Court, yet he may generally proceed against co-defendants pending an abatement by the death of a defendant; likewise one defendant is not stayed in his proceedings against the plaintiff by the death of another defendant. If the interest of a defendant dying determines or survives to another defendant, and he is not an accounting party, his death is no abatement of the suit. Thus, [*513] the *death of one of two executors or trustees, (if not an accounting party) is no abatement; so if a bill be exhibited for a legacy against husband and wife, who is executor of the testator, and pending the suit, the husband dies, it is no abatement.(1) So if a man marries an administratrix, and the plaintiff obtains a decree against him and his wife, and the wife dies, the plaintiff may proceed against the husband without reviving against the administrator of the wife, but the husband is not bound to answer further than to the extent of the estate he had with his wife.(2)[a]

After a decree in a suit in which a lunatic and his committee were defendants, the committee died and a new one was appointed, it was held not to be an abatement of the suit, but an order was made upon motion that the new committee should be named as such, in all future proceedings in the cause.(3)

In a suit by an impropriate rector for tithes, where the defence is, that the tithe in question is vicarial, and the vicar, who is a defendant, dies during the suit, it is not necessary to make the new vicar a party if the plaintiff will waive the account subsequent to his induction.(4)

(1) 1 Eq. Ca. Ab. 1.

.

(3) Lyon v. Mercer, 1 S. & S. 356.

(2) 1 Eq. Ca. Ab. 3.
(4) Daws v. Benn, Jac. 95.

[f] When one is made a defendant, and dies after having answered, and denied his interest in the matter, and his death being suggested, without steps taken to revive against him, the cause will abate as to him, without injury to the other parties concerned. Breedlove v. Stump, 3 Yerg. 257.

[a] A husband and wife, being defendants to a bill praying accounts against the wife, who was the personal representative of the plaintiff's debtor, on the death of the wife, the husband is entitled, the plaintiff refusing to revive, to set the cause down, to have the bill dismissed with costs as to him. For that purpose, the suit is abated. Hogan v. Morgan, 2 Moll. 417, (12 Eng. Ch. Rep. 533.)

Eng. Chan. Reps. i. 182.

Eng, Chan. Reps. iv. 300.

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