ABATEMENT AND REVIVAL. In Chan cery Practice. A suspension of all proceed ings in a suit, from the want of proper par ties capable of proceeding therein.
It differs from an abatement at law in this; that In the latter the action is entirely dead and can not be revived ; but in the former the right to pro ceed is merely suspended, and may be revived by a supplemental bill in the nature of a bill of re vivor ; 3 Bla. Com. 301; Boynton v. Boynton, 21 N. H. 246; Sto. Eq. Pl. § 20 n. § 354; Ad. Eq. 403; Mitf. Eq. Pl., by Jeremy 57; Brooks v. Jones, 6 Lea (Tenn.) 244; Clarke v. Mathewson, 12 Pet. (U. S.) 164, 9 L. Ed. 1041 ; Kronenberger v. Heinemann, 104 Ill. 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. Pl. § 364 ; Feemstet 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 Mae. 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. Pl. §§ 332, 442; Sedgwick v. Cleveland, 7 Paige, Ch. (N. Y.) 290; Sinclair v. Realty Co., 99 Md. 223, 57 Atl. 664. See PARTIES.
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 requiring an answer by the new trustee; Greenleaf v. Queen, 1 Pet. (U. S.) 138, 7 L.
Ed. 85. And where there was a failure to perform duties of a fiduciary nature, carry ing compensation, the remedy therefor sur vived ; Warren v. Shoe Co., 166 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 executor of complainant in a bill to redeem was held not entitled to prosecute it; Smith v. Man
ning, 9 Mass. 422 ; though now the right of an administrator to redeem is given by stat ute 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, 186 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.) 368; to pay money out of court where the right is clear; 6 Ves. 250; or upon consent of parties; 2 yes. 399; to punish a party for breach of an injunction ; Hawley v. Bennett, 4 Paige, Ch. (N. Y.) 163; to enroll a decree ;'2 Dick. 612; or to make an order for the delivery of deeds and writ ings ; 1 Ves. 185. On a bill to set aside a deed, the heirs at law or devisees of a de ceased complainant, and not the executor (unless title is vested in him under the will), should file the bill of revivor; Webb v. Jan ney, 9 App. D. C. 41. The death of the com plainant in a bill of discovery after answer abates it and the suit cannot be revived; its purpose is accomplished ; Horshurg 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 or der of court ; McCosker 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 Ad miralty 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. Cozine, 1 Hoffm. Ch. (N. Y.) 79.