McDermott v. McGown

4 Edw. Ch. 592

• Court: New York Court of Chancery
• Decided: October 6, 1845
• Status: Published

Opinion

The Vice-Chancellor :

I am of opinion that the objection of multifariousness to the bill of revivor is well taken and the demurrer, on that account, would have to be allowed. The consequence of which, however, might be obviated by an amendment on payment of costs, instead of putting the bill entirely out of court.

But the other objection, of a want of right or title in the complainant to file such a bill, appears to be a fatal objection to it, so as to require its dismissal. The chancellor holds the rule to be a strict one that before a decree or decretal order is made by which a defendant becomes entitled to an interest in the further continuance of the suit, neither he nor his representatives can sustain a bill of revivor : Souillard v. Dias, 9 Paige’s C. R. 394. Neither of the suits sought to be revived had proceeded so far as to give this child any fixed or definite right of that sort. It comes, therefore, within that rule. If, in either of the suits, she, as a defendant, is in a position, under any of the provisions of the statute authorizing a revival at the instance of a defendant, let her apply to the court by petition in the particular suit or suits ; but the chancellor appears to think that the provisions of the statute do not extend to the case of an abatement by death before an interest has been acquired by a decree or decretal order : Ib. 395.

The demurrer must be allowed; and the bill be dismissed, with costs.