Cobb v. Conway

1 Tenn. 294

• Court: Tennessee Superior Court for Law and Equity
• Decided: September 6, 1808
• Status: Published

Opinions

Equity. — Bill to revive by Cobb's heirs against Conway's heirs. Demurrer, showing for cause that the bill was abated, not having been revived within two years. It had been more than two years since the death of the defendant, and no step taken.

CAMPBELL, in support of the demurrer. — The case depends upon the construction of our Acts of Assembly; where an act points out a particular mode, it must be observed, and no other, 1785, c. 2, § 2; 1789, c. 57, § 7. Where the plaintiff dies, there is no necessity for a sci. fa., which is the exclusive method of reviving under this act. 1 Hay. 455. The intervention of a term shall not work an abatement. 1 Hay. 500. The act extends to such cases only as could be revived before the passage of the act, and to none that died with the person.

CAMPBELL, in continuation. — The statute, in providing a new method of proceeding, abolished the old. 1 Hay. 162, 163, 502, from which it appears a bill of injunction was dismissed for want of a replication within two terms. If within two terms the plaintiff's representatives come in and prosecute the suit, there is no necessity for a bill of revivor. The case in 2 Haywood, 163, is nothing against us. It was in the case of a devise, where it was admitted a bill of revivor would lie. In the ease of Lewis and Lenoir v. Outlaw and others, at Knoxville, it was determined, as I have understood the case, that a sci. fa. was the only process that would lie in such a case. Admitting however, that a bill of revivor were proper, it ought to contain all the substance of the former bill. Mitf. 66. In the case of a devise, the substance of the former bill must be stated; death, c, by way of supplement. If the Court can revive after two terms, they may after any length of time. Variance between a bill of revivor and original bill, is sufficient cause of demurrer. 1 Har. 156.

WHITE argued e contra.