Ridgely’s Notebook II, 480
Court of Chancery of Delaware, Sussex County.
July 28, 1819.
Bill of revivor. This bill was filed to revive a bill formerly filed by Caty Ake while she was sole, and which it was supposed by the party was abated by the marriage of Caty Ake to Lemuel West.
Page 525
Demurrer. Cause of demurrer, that said bill of revivor does not pursue the said original bill, but varies therefrom. And for further cause of demurrer, defendants say that complainants show in their said bill of revivor that the original bill abated by the marriage of the said Caty with the said Lemuel, they the said Lemuel West and said Caty, his wife, have not a right to question the defendant here by said bill of revivor, and cannot as the defendant is advised, revive said original bill by said bill of revivor, wherefore for these and many other errors and defects in said bill of said complainants the defendants do demur in law, and do humbly [pray] the judgment of this court whether the said bill of revivor ought not to be dismissed, and this defendant have his reasonable costs.
Mr. Robinson and Mr. Wells for complainants. Mr. Cooper
for defendant.
Mr. Cooper. First, that bill of revivor varies from the original bill. The original bill contains a prayer for relief according to the case stated, and no prayer for general relief. The bill of revivor does contain a prayer for general relief. Therefore, the bill of revivor does not pursue the original bill in a material part. Second, that husband and wife cannot revive. 1 Harr.Ch.Pr. 128. If feme plaintiff marries, suit abates, and husband can’t exhibit his bill of revivor. At law the marriage of a feme
plaintiff abates the suit absolutely. The bill of revivor admits the abatement of the suit.
Mr. Wells for demurrant. A bill of revivor is to revive a suit on an abatement in equity. Marriage of feme plaintiff will abate the suit. 2 Com.Dig. 242F. If a woman be plaintiff and after the answer to her bill she marries, she ought to have a bill of revivor. Mitf. Pl. 33. Bill of revivor to continue original suit, where female plaintiff has incapacitated herself from suing alone. Mitf. Pl. 64. Suit of feme plaintiff abated by marriage may be continued by bill of revivor. Mitf. PL 56. If feme plaintiff marries, and prosecutes to judgment, no advantage can be taken of it in error. Cites 1 Ch.R. 231; Nels. 86. Two point as to variation. Mitf. Pl. 63.1 Harr.Ch.Pr. 296. Court sometimes gives plaintiff [leave] to amend bill, frequently on demurrer for want of parties. Mitf. Pl. 74, bill of revivor, and supplement compound of these two bills and to be framed in same manner. Mitf. Pl. 15, note, amendment of bill permitted after demurrer to whole bill allowed; this though not strictly regular. 2 Com.Dig. 244, any plaintiff may be omitted in bill of revivor, who was party to the original bill.
Mr. Cooper. After demurrer set down for argument it is too late to apply for leave to amend.
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On motion of Mr. Wells leave is given to amend the bill. Then the variance being corrected, the demurrer was overruled. This amendment was to correct the variance, allowing a prayer of general relief in the original bill and bill of revivor.
[NOTE.] In 2 Madd.Ch.Pr. [1815 ed.] 396, 397, it is said that if any of the parties, plaintiffs or defendants, die, or if a feme sole plaintiff marries (it is different if a feme soledefendant marries) regularly the suit abates, and a bill of revivor is necessary. Cites 1 Vern. 318.1 Ves. 182. Abergavenny v. Abergavenny,
Vin.Abr., title, “Baron and Feme,” Ja., pl. 20.
The original bill was allowed to be revived.
[Miscellaneous entries and orders of the Orphans’ Court appear here Ridgely’s Notebook II, 483-498.]