Rogers v. Adriance

22 How. Pr. 97

• Court: The Superior Court of New York City
• Decided: May 15, 1861
• Status: Published

Opinion

Hoffman, Justice.

The court of chancery adopted a series of rules for continuing a suit in cases of death, changes in the relations of parties, or transfers of their interest in the subject matter. An abatement was treated merely as a suspension of the suit. (1 Sumner, 173.)

The means of continuing the suit were, a bill of revivor, an original bill in the nature of a bill of a revivor, a supplemental bill in nature of a bill of revivor, and a bill of supplement and revivor.

The distinctions need not be noticed, except that a mere bill of revivor was used when there was a direct devolution of interest upon death by force of law, as to an executor or an heir. So if a female marry during suit. But if a new party takes by the act of the original party, as by a devise, an original in the nature of a bill of revivor is appropriate. (Lube, 295 ; 1 Comst., 214 ; 2 Daniel’s Pr., 1411, 1412.)

There must, however, have been a privity between the original party and the proposed new party. Thus, a devisee continued the action in the manner stated ; but if there had been discovered a subsequent will, the devisee in that new will could not avail himself of the bill to revive filed by the other devisee. (Oldham agt. Eboral, Cooper’s Sel. Cases, 27, and other authorities cited; 2 Daniel, 1402.) If the bill had been filed by the devisee for himself, the second devisee could revive, because he derived title from the devisor independently of the first devisee.

It has been determined that where an administrator had sued, and died, an administrator de bonis non could revive. (2 Eq. Cas. Ab., 3 ; Lord Redesdale, 64 ; 2 Daniel, 1411; see Brady agt. McCosker, 1 Comst., 214.)

I have searched carefully, and cannot find anything like a case of a suit by a party in interest, his death, appointment of an executor, no revival by him, but a transfer of the right and subject of action, and a revivor by the assignee. I do not believe that the doctrine of privity has ever been carried so far. (See 10 How., 253 ; 1 Bosw., 571.)

The Code, it seems to me, does not in this particular authorize what would not have been allowed before its adoption.