TITLE 2. the court may direct, in the state paper, and in a newspaper printed in the county where such demands are required to be exhibited. Abatement of causes. Ib. Certain suits how revived. Service of order, &c. Proceedings upon default &c. $107. When the cause of action shall survive, no suit in chancery shall abate by the death of one or more of the complainants or defendants; but upon satisfactory suggestion to the court of such death, the suit shall proceed in favor of, or against the surviving parties.40 $108. When one or more of the complainants or defendants shall die, and the cause of action shall not survive, the suit shall abate only as to the person or persons so dying; and the surviving parties may proceed without reviving the suit.40 S109. No bill of revivor shall be necessary to revive a suit against the representatives of a deceased defendant; but the court may, by order, direct the same to stand revived, upon the petition of the complainant. 40 $110. A copy of such order shall be served upon the representatives against whom the revival is ordered; who shall be allowed eighty days after such service, to appear and answer, or disclaim.10 S111. If they shall not, within that time, appear and answer or in appearing, disclaim, the court, upon due proof of the service of such order, may cause their appearance to be entered; and in such case, the answer of the deceased party shall be deemed the answer of such representatives.40 Ib. Proceedings when further answer re quired. lb. Revival of certain suits $112. In such case, if no answer shall have been filed by the deceased party, the court may, in its discretion, order the bill to be taken as confessed against such representatives, or compel them to answer by attachment or otherwise.40 $113. If the deceased party shall have answered, and the complainant shall deem it necessary to obtain a further answer from his representatives, the petition for revival shall state the matters as to which such further answer is required, and a copy of such petition shall be annexed to a copy of the order to be served on such representatives. $114. In such case, if the representatives shall not appear and put in such further answer,, or disclaim, within eighty days after the service of the petition and order, the court, upon due proof of such service, may order the petition to be taken as confessed, or compel such further answer by attachment or otherwise. $115. When a complainant shall die, and the cause of action shall not survive, his representatives may, on affidavit of such death, and on motion in open court, be made complainants in the suit, and be permitted, if necessary, to amend the bill.41 (40) 1 R. L. p. 488, §7. (41) Ib. p. 489, § 9. $116. The defendant shall be compelled to answer such amended bill, and the causes shall proceed to issue and a hearing, as in ordinary ART. 4. Proceedings representa ceed. $117. When the representatives shall not cause themselves to be Ib to compe. made complainants within eighty days after the death of a deceased tives to procomplainant, the surviving complainant may proceed to make them defendants in the suit, as in cases where the representatives of a deceased defendant are made parties.42 $118. If there be no surviving complainant, or he shall neglect or refuse to proceed against the representatives of the deceased complainant as defendants, the court, upon the petition of the original defendant, may order such representatives to show cause, at a certain day to be named in such order, why the suit should not stand revived in their names, or the bill be dismissed, as far as the interests of such representatives are concerned. $119. If no such cause be then shown, the court, upon proof of 1b. the reasonable service of a copy of the order upon such representatives, may order the revival of the suit in their names, or the dismissal of the bill, with costs, or otherwise. defendant $ 120. If a defendant shall die, and the cause of action shall not Revival by survive, and the complainant shall neglect or refuse to procure an or- surviving. der for the revival of the suit, the court may order it to stand revived, upon the petition of a surviving defendant, against the representatives of the deceased party. $121. In such case, the surviving defendant may proceed against . such representatives, in the same manner as a complainant, to compel them to appear, abide the answer of the deceased party, or answer, if an answer be required, or to have the bill or his petition taken as confessed against them; and the court may, in its discretion, stay the suit as against him, until such proceedings shall have been had. ARTICLE FOURTH. Of Proceedings against Absent, Concealed, and Non-Resident Defendants. SEC. 122. In what cases, &c. order to be made that defendant appear. 123. Time within which appearance shall be required. 124. Order how published; when publication unnecessary. 125. Time for appearance may be extended. 125. Consequence of default in appearing; reference to master. 127. Duty of master; proof of facts in cause. 123. Cases in which complainant must be examined. 129. Master to report proceedings thereon. 130. Performance of decree how enforced. 131. Property not to be delivered until security be given. 132. Decree may be satisfied, upon security being given. 133 & 134. Terms on which, and when, defendant may answer bill. 135. When decree to be confirmed. TITLE 2. SEC. 136. Decree in suits against mortgagors. Cares in which order 137. When they may appear; proceedings thereon. $122. After the filing of a bill, the court shall make an order for for appear the appearance of a defendant at a future day therein to be specified, as herein after directed, in the following cases: ance to bo made. Time for appearance. Order how published. 1. When the defendant resides out of this state, upon proof by affidavit of that fact: 2. When the defendant is a resident of this state, upon proof by affidavit, that process for his appearance has been duly issued, and that the same could not be served, by reason of his absence from, or concealment within, the state, or by reason of his continued absence from the place of his residence. 43 $123. The order shall require the defendant to appear and answer the bill, as follows: 1. If he be a resident of the state, within three months from its date : 2. If he be not a resident of this state, but of some other of the United States, or of one of the territories thereof, or of either of the provinces of Canada, within four months from its date: 3. If he be a resident of any other state or country not before mentioned, within nine months from its date.43 $124. Such order shall be published within twenty days after it shall have been made, in the state paper, and such other public paper printed in this state, as the court may direct, for eight weeks in sucWhen publi- cession, and once at least in each week; but such publication shall not be necessary, in any case in which a copy of such order shall have been served on such absent, concealed or non-resident defendant, personally, at least twenty days before the time prescribed for the appearance of such defendant.43 cation not ne cessary. pearing how Time for ap- $ 125. The chancellor may, if necessary, by further order extend enlarged. the time for the appearance of such defendant; and in that case, shall direct the publication of such further order for so long a time as he shall fix.43 Proceedings on default: Reference, &c. Duty of mas ter: Proofs. $126. If the defendant shall not appear within the time limited in the order, upon due proof of such publication as shall have been required, or of the personal service of such order as herein provided, the complainant's bill shall be taken as confessed, and the court shall direct a reference to a master, to take proof of the facts and circumstances stated in such bill.43 $127. The master to whom such reference is made, shall take such proofs as may be offered. The bill shall not be considered as evidence of any fact stated therein; but when so directed by the (43) 1 R. L. p. 489, § 9. chancellor, the master may receive the testimony of the complainant ART. 4. as evidence. plainant must $128. Whenever the bill shall have been filed for the payment or when comsatisfaction of any sum of money, the court shall direct that the com- be examined. plainant be examined by the master, as to any payments that may have been made to him, or to any person for his use, on account of the demand mentioned in the bill, and which ought to be credited on such demand. port, &c. § 129. The master shall report the proofs and examinations had Master to rebefore him; and on the coming in thereof, the chancellor shall make such order thereupon, as shall be just. $130. Process shall then issue to compel the performance of such Decree how decree, either by sequestration of the real and personal estate, of the defendant, or such part thereof as shall be deemed sufficient; or where any specific estate or effects are demanded by the bill, by causing possession of the property so demanded, to be delivered to the complain ant.44 enforced. quired in cer $131. Possession, in the case last mentioned, shall not be deliver- Security reed until the complainant shall have given such security, and in such tain case. sum as the court shall direct, to abide the order of the court touching the restitution of the estate or effects delivered, in case the defendant shall appear and be admitted to defend the suit. $132. Upon the like security being given, the court, when a se- . questration shall have issued, may order the decree to be satisfied out of the estate and effects sequestered; but if such security shall not be given, the estate and effects sequestered shall remain under the direction of the court, to abide its further order.44 fendant may $133. If the defendant against whom such decree shall have been when demade, or his representatives, shall afterwards appear and petition to answer bill. be heard, the party so petitioning, upon paying, or securing to be paid, such costs as the court shall adjudge, shall be admitted to answer the complainant's bill; and the suit shall then proceed, in like manner as if such defendant had appeared in due season, and no decree had been made.44 § 134. The defendant, or his representatives, must so appear with- Time when. in one year after notice in writing of the decree shall have been given to him or them; and within seven years after the making of the decree, when such notice shall not be given.44 ed. $135. If the defendant or his representatives shall not so appear when decree before the expiration of one year after such notice shall have been to be confirm given, and if not given, of seven years after the making of the decree, the court shall then, by order, confirm the decree against the defendant, and against all persons claiming under him by virtue of (44) 1 R. L. p. 489, § 9. may make TITLE 2. any act subsequent to the commencement of the suit, and such further order in the premises as shall be just and reasonable.45 Decree against mort gagors. When to ap pear, &c. Sales made not affected ant's appear to account to $136. If the bill shall have been filed to procure the foreclosure or satisfaction of a mortgage, the court, instead of proceeding to a sequestration in the manner herein before directed, may decree a sale of the mortgaged premises, or of such part thereof as may be necessary to discharge the mortgage, and the costs of suit, as in other cases.46 $137. In the case mentioned in the last preceding section, if the defendant, at any time before the sale of the mortgaged premises, shall appear and pay to the complainant such costs as the court shall award, the court shall stay the sale; and the same proceedings shall be thereafter had, as if the defendant had been served with process, and had regularly appeared.46 $138. No sale and conveyance regularly made under the precedby defending provisions, upon a bill filed for the foreclosure or satisfaction of a ing. mortgage, shall be affected or prejudiced by the appearance of the defendant within the one year, or the seven years herein before specifiComplainant ed, nor by any other proceeding; but such defendant, or his represendefendant. tatives, may, at any time within seven years after the decree ordering such sale, file a bill against the complainant, or his representatives, to account for all monies received by them, by virtue of such decree, over and above the amount justly due on the mortgage, and costs of suit; and the court shall proceed upon such bill, according to the equity of the case. Staying trials 46 ARTICLE FIFTH. Of the Granting of Injunctions to stay Proceedings at Law. SEC. 139. Trials in personal actions not to be stayed, until bond be given. 140. Pre-requisites for staying proceedings after verdict, in personal actions. 141. Ib. for staying proceedings after judgment. 142. When money deposited may be paid to plaintiff at law. 143. Proceedings if final decision be in his favor. 144. Pre-requisites for staying proceedings after verdict in ejectment, &c. 145. Damages of staying proceedings, how ascertained. 146. Bond may be received instead of deposit of monies. 147. In certain cases, deposits and bonds may be dispensed with. 148. Sufficiency of sureties in bonds, how ascertained. 149. Bonds hercin required, where and when to be filed. 150. Bonds, when to be delivered to obligee for prosecution. $139. No injunction shall be issued to stay the trial of any perin personal sonal action at issue in a court of law, until the party applying there actions. for, shall execute a bond, with one or more sufficient sureties, to the plaintiff in such action at law, in such sum as the chancellor or master allowing the injunction shall direct, conditioned for the payment to the said plaintiff and his legal representatives, of all monies which may be recovered by such plaintiff or his representatives, or the collection of which may be stayed by such injunction, in such action at (45) 1 R. L. p. 489, § 9. (46) Ib. p. 493, § 21, 12 & 23. |
