
    William Hall, George Cotchett, and Others, Executors of Ainsley Hall, v. Claiborne Clifton and John McLemore.
    Where a defendant died after the hearing, but before the decree has been delivered; the case does not abate, but the chancellor may proceed to give his decree.
    This cause was fully heard upon the merits in the summer of 1826, and one of the defendants, C. Clifton, who had answered, died in the autumn, before a decree was pronounced. Chancellor DeSaussure, who heard the cause, decreed that the suit had abated as to C. Clifton, and that no further proceedings could be had in the cause until the suit was revived as to the defendant who died.
    The complainants now moved to reverse this decree.
    W. F. DeSaussure, for appellants.
    A bill of revivor was unnecessary; and after a full hearing in the lifetime *of a defendant, a decree may be pronounced without reviving the suit. He cited Pub. Laws, 79. 9 Ves. 461. 2 Madd. Cha. 398; 2 Fowler’s Exch. Prac. 169. 4 Johns. Cita. Rep. 334. One of the parties dying after argument, the decree has relation back to the time of argument. 1 Salk. 8. 10 Mod. 137. 7 Term Rep. 31.
    Chappell, contra,
    cited Coop. Plead. 64. 1 Harris. Cha. 296. 1 Cha. Ca. 7. 2 Madd. Cha. 526.
   Curia, per

Johnson, J.

It is admitted on ail sides that this cause had been heard on its merits, and that the decree to have been pronounced by the chancellor would have been final in its effects and operation. And the cases cited at the bar abundantly establish that in such a case the decree may be pronounced, although one of the parties in interest die after the hearing and before the judgment is given. Davies v. Davies, 9 Ves. 461. Campbell v. Mesier, 4 Johns. Cha. Rep. 342.

A suit abates by the death of one of the parties during its progress, because there is no one in court who is interested or bound to defend the interests which belonged to him; and they might be compromitted by an ex parte proceeding. But this reasoning cannot apply when he has had an opportunity of vindicating his rights through every stage in which his efforts could avail anything; and this is the state of things after a final hearing. Besides, the judgment has relation back to the time of the hearing, and in legal contemplation is a judgment in the lifetime of the party.

This court is, therefore, of opinion that the chancellor was at liberty to have proceeded to pronounce his decree, notwithstanding the death of the defendant Clifton, and without the consent of his representatives.

Motion granted.  