Majority
p. 524LEMUEL WEST and CATY, his Wife, late Caty Ake, v. MARY EVANS, Administratrix of Eli Evans. Court of Chancery. Sussex. July 28, 1819. Ridgely’s Notebook II, 480.
p. 525First, that bill of revivor varies from the original bill. The original bill contains a prayer for relief according to the cáse stated, and no prayer for general relief. The bill of revivor does contain a prayer for general relief. Therefore, the bill of revivor does not pursue the original bill in a material part. Second, that husband and wife cannot revive. 1 Harr.Ch.Pr. 128. If feme plaintiff marries, suit abates, and husband can’t exhibit his bill of revivor. At law the marriage of a feme plaintiff abates the suit absolutely. The bill of revivor admits the abatement of the suit. A bill of revivor is to revive a suit on an abatement in equity. Marriage of feme plaintiff will abate the suit. 2 Com.Dig. 242F. If a woman be plaintiff and after the answer to her bill she marries, she ought to have a bill of revivor. Mitf. Pl. 33. Bill of revivor to continue original suit, where female plaintiff has incapacitated herself from suing alone. Mitf. Pl. 64. Suit of feme plaintiff abated by marriage may be continued by bill of revivor. Mitf. Pl. 56. If feme plaintiff marries, and prosecutes to judgment, no advantage can be taken of it in error. Cites 1 Ch.R. 231; Nels. 86. Two point as to variation. Mitf. Pl. 63. 1 Harr.Ch.Pr. 296. Court sometimes gives plaintiff [leave] to amend bill, frequently on demurrer for want of parties. Mitf. Pl. 74, bill of revivor, and supplement compound of these two bills and to be framed in same manner. Mitf. Pl. 15, note, amendment of bill permitted after demurrer to whole bill allowed; this though not strictly regular. 2 Com.Dig. 244, any plaintiff may be omitted in bill of revivor, who was party to the original bill. After demurrer set down for argument it is too late to apply for leave to amend.
Mr. Robinson and Mr. Wells for complainants. Mr. Cooper for defendant.
Mr. Cooper.
Mr. Wells for demurrant.
p. 526
On motion of Mr. Weils leave is given to amend the bill. Then the variance being corrected, the demurrer was overruled. This amendment was to correct the variance, allowing a prayer of general relief in the original bill and bill of revivor.
[Note.] In 2 Madd.Ch.Pr. [1815 ed.] 396, 397, it is said that if any of the parties, plaintiffs or defendants, die, or if a feme sole plaintiff marries (it is different if a feme sole defendant marries) regularly the suit abates, and a bill of revivor is necessary. Cites 1 Vern. 318. 1 Ves. 182. Abergavenny v. Abergavenny, Vin.Abr., title, “Baron and Feme,” Ja., pl. 20.
The original bill was allowed to be revived.