Thomson v. Dudley

3 Edw. Ch. 137, 1837 N.Y. LEXIS 259, 1837 N.Y. Misc. LEXIS 16

Opinion

The Vice-Chancellor

doubted whether he could let a decree be taken, even by allowing it nunc pro tunc; but consented to consider the point.

Afterwards, His Honor said, it would not be regular to make a decree in such a case, and so as to have effect upon a day prior to the death of the party. If the cause had been heard then, the decree might have been entered nunc pro tunc; but, that the cases of Rogers v. Paterson, 4 Paige’s C. R. 409, and Vroom v. Diimas, 5 Ib. 528, did not apply here. The, suit must he revived against the representatives of the deceased defendant, Henry Dudley, before a decree could be had.

(a)

) In some late English reports, by Ross Donnelly, Esq., (Minutes of cases argued in the high court of chancery,) Mr. Edwards finds the following: “ In the course of the argument, the vice-chancellor held that where a decree was taken, and at the time of the decree a party to the suit was dead, the decree would be imperfect and could not he remedied by a subsequent bill of revivor against the representatives of the deceased party ; for the prayer of the bill of revivor was, that the suit might be put in the same plight as it was in at the time of the abatement and at that time there was no decree.” Smith v. Evans, vol. I. p. 25.