after such interlocutory judgment, (or if he died after, against his executors or administrators,) to show cause why damages in such action shall not be assessed and recovered by the plaintiff or plaintiffs; and if such defendant or his executors or administrators shall Proceedings appear at the return of such writ, and not show or allege any maton the scire fa- ters sufficient to arrest the final judgment, or being returned warn cias. Several plff's ed, or upon two writs of scire facias it be returned that the defendant or his executors or administrators had nothing whereby to be summoned, or could not be found in the county, shall make default, a writ of inquiry of damages shall be thereupon awarded, which being executed, judgment final shall be given for the said plaintiff, his executors or administrators, prosecuting such writ or writs of scire facias against such defendant, his executors or administrators: and if there be wo or more plaintiffs or defendants, and one or more of them should die, if the cause of action should survive to the surviving plaintiff or plaintiffs against the surviving defendant or defendants, the writ or action shall proceed at the suit of survive & pro- the surviving plaintiff or plaintiffs against the surviving defendant or defendants: and in all actions, real, personal and mixed, if either abate between party shall die between verdict and judgment, such death shall not verdict & judg- be pleaded in abatement, but judgment shall be entered as if both parties were living. or def'ts, and the cause of action survives, the suit not to abate, but to gress. Suits not to ment. 1801. IN FORCE FROM ITS PASSAGE. of defendant But scire fa to revive. AN ACT to amend an act entitled, an act to reduce into one the several acts for preventing vexatious suits, and regulating proceedings in civil cases: Approved December 18, 1801.-2 Litt. 441. SEC. 5. Be it further enacted, That whensoever any writ origiSuits not to nal, or subsequent process shall be sued out of any of the courts of abate by death this commonwealth, and after the execution thereof, the defendant before interlo- or defendants shall depart this life before interlocutory or final judgcutory or final ment obtained therein, such action shall not abate, if the same judgment. were originally maintainable against the executors of such defencias may issue dant; but it shall and may be lawful for the plaintiff or plaintiffs in any such suit, to have a scire facias against the representatives of such decedent, to show cause why the plaintiff should not sustain of plaintiff af- such action; and if the plaintiff or plaintiffs in any suit, after the execution of the writ therein, shall depart this life before interlccutory or final judgment, such suit shall not abate, provided the same were originally maintainable by the executors or administrators of such decedent; but the executors or administrators of such decedent may have a scire facias against such defendant or defendants, to show cause why such action should not be sustained against Suits not to abate by death ter service of process and be fore interlocu tory or final judgment. But scire facias may issue to revive. them; which shall be subject to the same rules and regulations, as in case of a scire facias after an interlocutory judgment. 1796. IN FORCE FROM ITS PASSAGE. AN ACT to reduce into one the several acts or parts of acts concerning Sheriffs: When sheriff found. SEC. 8. No sheriff shall return upon a writ directed to him, that the defendant is not found within his bailiwick, unless such sheriff shall return not or his deputy shall have actually been at the place of residence of such defendant, and not finding him, shall have left a true copy of the process, or unless such defendant's place of residence is unknown to such sheriff or officer. If the defendant cannot be arrested by the sheriff, and shall be a known inhabitant of another county, the sheriff shall return the truth of the case, and thereupon process as to such defendant shall abate. 1800. What return where defendanother county. ant resides in IN FORCE THREE MONTHS AFTER ITS PASSAGE. AN ACT to amend the laws of proceeding in civil cases: Approved December 18, 1800.-2 Litt. 403. SEC. 10. And be it further enacted, That whenever it is necessary to revive a suit in chancery, in which the answer of the defendant deceased shall have been filed, an order of the court for that purpose, reviving the same in the names of the legal representatives of the deceased, shall be sufficient without bill of revivor, as heretofore. But where such order is made against the representatives of the defendant, a copy thereof shall be served on the persons so made defendants by order of revival, if they reside within this commonwealth: and where the defendants do not reside within this commonwealth, that then, in such cases, the said order shall be published in the public papers, as in other cases of absent defendants. (a) (a) Whenever the answer of a deceased defendant has been filed, the statute dispenses with the necessity of a bill of revivor. On the death of a complainant, or of a defendant before answer filed, a bill of revivor is necessary, and there must be either an actual or constructive service of process before a decree can be regularly pronounced.-Robinson v. Hopkins, 3 Mar. 584; Gatewood's Heirs v. Rucker's Heirs, 1 Mon. 22; Bentley v. Gregory, &c., 7 Mon. 369; Sweet's Heirs v. Biggs and Craig, 5 Litt. 17; Hawkins v. Marshall, 4 Bibb, 472. 2. If defendants who have answered before complainant's death, appear to an order for reviving the suit, in the names of his heirs, and so proceed to a hearing, it will do for a revivor as to them; but as to defendants who do not appear, such an attempt to revive will not be effectual.--Roberts' Heirs v. Elliott's Heirs, 3 Mon. 399. 1812. Certain spe juries not to die with the person, but may sur vive. IN FORCE FROM ITS PASSAGE. AN ACT to amend the law of proceedings in civil cases: Approved February 4, 1812.-4 Litt. 384. SEC. 5. Be it further enacted by the authority aforesaid, That cies of action hereafter no species of actions for personal (b) injuries, shall cease for personal inor die with the person, except actions for assaults and batteries, slander, criminal conversation, and so much of the action for malicious prosecution, as is intended to recover for the personal injury; but that for any other injury than those herein excepted, an action may be brought and maintained by executors or administrators, or against exccutors and administrators, in like manner with causes of action founded upon contract. And upon the decease of either plaintiff or defendant to any actions which, by the provisions of this section, will not die with the person, it shall be lawful for such action to be revived in the name of the executors or administrators of the deceased, in the same manner, subject to the like proceedings, as in cases which heretofore survived to the executors or administrators of the deceased, may be. Upon the death of either party in such actions, how to be re vived. SEC. 6. Be it further enacted by the authority aforesaid, That in Suits may be all cases where several persons are sued as joint obligors in the same writing, or as joint and several obligors, and the sheriff or other officer shall return on any process issued against any of the abated as 10 those joint, or joint and sexe 3. When a defendant dies after answer, the bill may be revived against his representatives by an order of court, but the representa ives must be served with a copy of the order.-Bentley v. Gregory, &c. 7 Mon. 369; Hawkins v. Marshall, 4 Bibb, 472. 4. If the complainant in chaocery die, the suit should be revived by bill of revivor, and not by order of court.-Holder's Heirs v. Mount's Heirs, 2 J.J. Mar. 188. 5. On the death of complainant, a revivor in the name of his administrator, without a bill of revivor and service of process, will be error, unless it appear on the face of the record that the defendant waived all objections to the manner of reviving the suit.—Hall v. Johnston's Adm'r., 5 J. J. M. 281; see Shields v. Craig's Adm'r, 6 Mon. 373; Barnes v. Smith, 5 J. J. M. 311. 6. It is error to proceed to a decree on a bill of revivor by the heirs of a complainant, without process on the bill of revivor executed.Sweet's Heirs, &c. v. Biggs & Craig, 5 Lill. 17. 7. Upon a bill of revivor, a subpœna should be issued and served on the defendant.-Stout, &c. v. Higbee's Exr's. 4 J. J. M. 632. 8. In chancery proceedings, where the complainant dies, the suit can be revived only by bill or process, and that must be executed before the order of revivor.—Shields, &c. v. Craig's Admr. 6 Mon. 373. 9. An order of revivor may be made by consent.-Pugh's Heirs v. Bell's Heirs, 1 J. J. Mur. 399. (b) This act embraces actions for personal injuries only, and does not apply to injuries to real estate; and an action on the case brought to recover damages occasioned by the erection of a mill, and the consequent overflowing of the land of the plaintiff, being an action founded on tort, and abating on common law principles by the death of the plaintiff, cannot, by virtue of the statute, be revived in the name of his executor or administrator.-Kennedy and McCoun v. M'Affee's Ex'x., 1 Litt. 169. are returned no defendants, that such defendant is not an inhabitant of his county, (c) ral obligors who SEC. 18. Be it further enacted, That if any female plaintiff or complainant, in any suit in law or equity, shall marry pending the same, the marriage may be entered on the records of the court where the suit is depending, and the husband made a party thereto; whereupon the suit shall progress according to law, 1815. IN FORCE FROM ITS PASSAGE. AN ACT to amend the several acts respecting proceedings in chancery and at law: inhabitant, and the rest. to Marriage of female plaintiff or complainant may be suggest- . pending a suit, ed, and hus band made a party Devisees may how. SEC. 3. When any suit in law or equity be pending, and either party thereto shall depart this life, it shall and may be lawful for revive suits,and the devisee or devisees of any testator to revive the suit: Provided, the cause of action accrues by the will of the decedent, to said devisee or devisees, and said devisce or devisees could support such action if brought anew, or should such testator have been a defen (c) The return by a deputy sheriff that one of the defendants is "no inhabitant of his bailiwick," will not authorize an abatement as to that defendant.-Gully v. Sanders, Litt. S. C. 424; Kinsman v. Castleman, &c. 1 Mon. 212. it seems that such a return by the high sheriff would authorize the abatement. Ibid. 2. On a joint bond by several, the return of "no inhabitant" as to one, justifies an abatement as to him, and judgment as to others. Sebree v. Clay, 3 Mar. 552. 3. In a suit against heirs alone, on an obligation of their ancestor in which they are expressly bound, a return of "no inhabitant of the county," will authorize an abatement as to part of the heirs, and judgment against the others. Joining the personal representative with the heirs, does not alter the rule.-Bedell's Heirs v, Lewis' Heirs, 4 J. J. Mar. 564. 4. In an action against heirs or devisees, the suit may, upon the return of no inhabitant as to one, be abated as to him, and judgment taken against the others.-Coyle's Devisees v. Morton, 7 J. J. Mar. 274. 5. Upon the return of "no inhabitant," under the above act, against one of several defendants, the plaintiff has a right to proceed against the others alone, and the defendant so returned has no right to enter his appearance so as to procrasVOL. I. tinate the trial.-Depew v, Bank of Limestone, J. J. Mar. 379. 6. Independent of the above provision, the plaintiff might, in the case of a joint contract, on the return of no inhabitant as to one defend ant, abate as to him, and proceed against the other defendants who have been served with process.-Sneed v. Weister, &c. 2 Mar. 283; Smith v. Morrison, 3 Mar. 81. 7. In a scire facias to have execution on a recognizance of special bail, the plaintiff cannot abate as to one defendant on the return of "no inhabitant," and take judgment against the others.-Bruce v. Colgan, 2 Litt. 285. 8. On a motion against a constable and sureties, the death of one of the defendants may be The death of a suggested, and the motion abated as to him, and judgment given against the rest. co-plaintiff or co-defendant did not abate the suit at common law, and consequently there is no necessity in such case to revive by scire facias or otherwise.-Wilson, &c. v. Slaughter, 3 J. J. Mar. 595. (d) The expression "not found," is restricted by the relative words "so returned," and does not dispense with the necessity of the return in the previous words of the act, "that such defendant is not an inhabitant of his county." 13 Sneed v. Weister, 2 Mar. 283. Suits may be dant, to have the said suit revived, against such devisee or devisees, revived against in the same manner as any such suit may be revived by or against devisees, and the heir at law of any decedent. (e) how." authorize the 18.25. IN FORCE FROM ITS PASSAGE. AN ACT to regulate suits against joint and several obligors: Approved January 12, 1825.-Session Acts, 1824, page 178. SEC. 2. That in all cases where suits may be brought against The return of joint obligors, or against joint and several obligors, and the sheriff not found, will shall return upon the process executed as to one or more of the defendants, and not found as to the other defendant or defendants, it shall and may be lawful for the plaintiff to take such steps, and proceed in such manner as he could, provided the return had been no inhabitant as to such defendant or defendants so returned not found. (f) same proceedings as the re turn of no inhabitant. Before the passage of this act, a suit in chancery on an adverse land claim, could not, by a mere order of revivor, be revived in the name of a devisee; it was necessary to revive by an original bill in the nature of a bill of revivor. -Russell's Heirs, &c. v. Craig's Devisees, 3 Bibb, 377. (f) Previous to the passage of the above act, judgment could not be taken against part of the defendants, although they appeared to the action, and process as to the others had been returned "not found."Slater & Stapp v. Richardson, 3 Mon. 205. IN WHAT CASES A REVIVOR MAY TAKE PLACE. 1. If a defendant die before the service of process, the suit may be revived by bill of revivor or original bill against his representatives; and lapse of time from filing the first bill and the intermediate disposition of the cause as to other defendants, will not prevent the filing of the bill of revivor.-Lyle v. Bradford, 7 Mon. 115. 2. A writ of right abates in the circuit court by the death of a party, and there can be no revivor; but an appeal or a writ of error, prosecuted to reverse a judgment on a writ of right, and abated by the death of a party, may be revived and prosecuted by his legal representatives, or by a co-party.-Sanders' Heirs v. Buskirk, 1 Dana, 412. 3. The right to have an erroneous judgment reversed and corrected, never dies with the party, but survives to his representative, notwithstanding the cause of action upon which the judgment was rendered, would not have survived.-Ibid, AUTHORITY TO REVIVE. 1. The authority of an attorney terminates with the death of his client, and he has no power to revive the suit, by consent, in the names of the representatives of his client, without a new employment by them.-Clarke's Ex'r. v. Parish's Exr's, 1 Bibb, 548. 2. An order of revivor in the name of an executor, without saying that it was made at his instance, and the record not showing that he had notice of it, cannot support a decree against him. --Smith's Ex'r.v. Bryant's Ex'r. 7 J. J. Mar. 374. 3. If defendant die after answer, upon guardian ad litem being appointed, suit may be revived by counsel against administrators and infant heirs.-Mason v. Morrow, 4 J. J. Mar. 329. |