
    AUSTIN v. COCHRAN.
    A creditor’s suit does not abate by the death of a plaintiff or any creditor who may have come in, if there be then a plaintiff or creditor competent to prosecute the suit. — But a creditor’s suit will abate by the death of a defendant heir or devisee, whether there be any surplus of the proceeds of the sale to be returned to him or not.
    This was a creditor’s bill filed on the 18th of March, 1820, in Baltimore County Court, by Edward Austin, Edward Austin the younger, Anthony Austin, and John Austin, partners trading under the firm of George Austin &f Co., against Deborah Cochran, William S. Cochran, Thomas L. Emory, and William G. McClure. The bill states, that a partnership in trade had existed and been carried on between the late William Cochran and the late John G. Comegys, in the city of Baltimore, under the firm of William Cochran fy-Comegys ; which firm had, in the course of their dealings, become largely indebted to the plaintiffs; which debt then remained due and unpaid; that William Cochran died leaving a considerable real and personal estate, which, by his will, he devised to his wife the defendant Deborah, and to his infant son the defendant William S. Cochran; and appointed Deborah, John G. Comegys, and Samuel Hollingsworth, his executors; that Deborah and Comegys had qualified as his executors, and Hollingsworth had refused to accept the appointnient; that John G. Comegys, the surviving partner, had taken into his possession all the estate and effects of the firm; and after some time died, having by his will appointed the defendants Emory and McClure his executors, who qualified accordingly as such; that the property and estate of the firm which passed, into the hands of the surviving partner Comegys, were entirely or nearly absorbed by other claims against it; and that the personal estate of the late William Cochran was insufficient to pay his debts. Whereupon it was prayed, that the real estate of the late William Cochran might be sold for the satisfaction of his creditors.
    On the 11th of November, 1820, the defendants Emory and McClure put in their answer, in which they admit the claim of the plaintiffs, and the deficiency of the effects of the firm of William Cochran &{ Comegys, to satisfy the claims against it. The death of Deborah Cochran was suggested, and Thomas L. Emory was admitted as a defendant in her stead. After which two other creditors filed their petition praying to be allowed to come in as plaintiffs ; and, on the 8th of May, 1826, they were permitted to be made parties as prayed. On the 9th of May, 1826, the defendant Emory, as administrator de bonis non of William Cochran, answered, and admitted the claim of the plaintiffs. And, on the same day, the infant defendant William S. Cochran put in his answer, by his guardian ad litem, in -which he admits the claim of the plaintiffs, and assents to the sale of the real estate of his ancestor and devisor.
    The parties filed an agreement on the 10th of May, 1826, in which they say, ‘It is agreed, that a decree shall pass in this cause for the sale of the property mentioned in the proceedings therein, with a stay of execution on said decree until the first day of June, 1827, for the payment of the claims legally due by the said William Cochran and John G. Comegys, the said creditors, by their solicitors agreeing to release the said William S. Cochran of and from all claims for rents received by him or his guardian, from the house and lot in Market street, in the city of Baltimore, in the proceedings mentioned, where the said William Cochran formerly resided, up to the said first day of June, 1827.’ In conformity with this agreement, a decree was passed, on the same day, directing the real estate of the late William Cochran to be sold; and it was sold accordingly, and the sale finally ratified on the 1st of February, 1828.
    
      5th May, 1831.
    After which the proceedings were removed under the act of 1824, ch. 196, and filed here on the 29th of December, 1830. And during the consideration of the case it was verbally intimated, that the defendant William S. Cochran was in fact then dead.
   Bland, Chancellor.

A creditor’s suit is regulated by principles, in relation to abatement, in some respects, different from other suits. It is a general rule, that in all cases where a plaintiff or a defendant dies whose entire interest is inseparably mingled with that of the other parties, and yet does not devolve upon any of them, the suit abates; and no further proceedings can be had until it has been regularly revived, But, in a creditor’s suit, all the other creditors of the same debtor may come in and associate themselves, as plaintiffs, with the one by whom it was instituted ; and from the time such creditors file the vouchers of their claims, or are otherwise admitted as co-plaintiffs, the suit may be prosecuted by all or any of them as well as by the originally suing plaintiff. They are all entitled to the same privileges as plaintiffs ; and each one is allowed to take the same stand as against the defendant. And consequently, if he by whom the suit wTas commenced, or any one who has afterwards come in, and taken the position of a plaintiff, dies, the suit does not abate, if there be, at the time, any other unsatisfied creditor standing as a plaintiff; because, although the interest of the deceased does not survive to any of the other parties; yet there are other plaintiffs to whom all the rights, privileges and benefits of the suit do survive, and who are competent to call upon the court for its decree; and who must, therefore, be permitted to support their own interests, and to prosecute the suit for themselves, leaving the representatives of the deceased creditors to come in and renew the prosecution of their claims as they may think proper.

In ordinary cases, at common law, when a creditor dies pending a suit which he had instituted against his debtor, it devolves, as a duty, upon his executor or administrator to see, that it is seasonably revived and prosecuted with effect; and so too in this court. But in creditors’ suits it would be attended with unnecessary; and, in many respects, insufferable delay and expense, to consider the whole suit as abated by the death of any one of the multitude of creditors who may have been associated together as plaintiffs; for there are not unfrequently instances in this court of creditors’ suits in which there have been more than an 'hundred creditors admitted to come in and claim a right to participate in the distribution of the deceased debtor’s estate; and therefore, where a creditor’s bill has been filed by only one creditor, and he dies, after other creditors have come in, as the whole costs are here first paid out of the debtor’s estate, the suit does not necessarily abate; but may be sustained and prosecuted by any creditor who has come in, as well as by any one of the surviving plaintiffs, where the bill has been filed by several; and the representatives of the deceased plaintiff or creditor, by merely filing the legal testimonials of their being clothed with that character, may be permitted to take his place as renewed parties without filing a bill of revivor.

But although the suit cannot be suffered to abate, or to be even unreasonably delayed; because of the occasional dropping off, by death, or the payment of the claims of some of the troop of creditor plaintiffs, who, having a common interest, have therefore been permitted, or required to come in and make common cause in the pursuit of their claims; yet as to the defendant debtor, or his representatives, who hold the fund' upon which the charge is made, the case is very different. It is obviously the interest of such defendants to have every unsound claim rejected; because, after all the creditors are satisfied, they are entitled to the surplus. And even where there may not he a sufficiency to satisfy all the creditors ; it is a duty which such defendants owe to the just creditors of their testator or intestate ancestor or devisor, as well as to themselves, to make all proper disclosures, and to assist in having a fair distribution made by excluding all unfounded claims, so that those only which are clearly valid may obtain the full dividend to which they are entitled.

In this case, therefore, if it he true that William S. Cochran is now dead, it is evident that no further proceedings can be had until his legal representatives have been made parties.

Whereupon it is Ordered, that this case stand over until further order.

After which the plaintiffs, by their petition, stated, that William S. Cochran made his will, by which he appointed William II. Freeman his executor, and died. Whereupon they prayed, that a subpoena might issue, See. And it appearing from the proceedings, that the real estate which descended to the said William S. Cochran, had been converted into personalty; it was thereupon Ordered, that a subpoena scire facias issue against the said Freeman as prayed; which being returned summoned, the suit was ordered to stand revived in all respects against him; and was thereafter prosecuted to a conclusion. 
      
      
         Boddy v. Kent, 1 Meriv. 361.
     
      
      
         1 Eq. Ca. Abr. 3, p. 7; Fallowes v. Williamson, 11 Ves. 310; Boddy v. Kent, 1 Meriv. 361; Burney v. Morgan, 1 Cond. Chan. Rep. 183; Houlditch v. Donegall, 1 Cond. Chan. Rep. 249; Mitf. Plea. 59; 1 Fowl. Exch. Pra. 68 ; Calvert on Parties, 104, 107.
     
      
       Boddy v. Kent, 1 Meriv. 361; Dixon v. Wyatt, 4 Mad. 393; Burney v. Morgan, 1 Cond. Chan. Rep. 183; Houlditch v. Donegall, 1 Cond. Chan. Rep. 249; Handford v. Storie, 1 Cond. Chan. Rep. 414.
      
     