
    *M’Kays v. Hite and Others.
    March, 1830.
    (Absent Gbeen and Cabe. , J.)
    Injunction- — Death of Parties — Dissolution—Erroneous Order. — Four plaintiffs in equity unite in same bill, praying- injunction to stay proceedings on four several judgments at law against them, respectively, on grounds of equity common to all; the bill is exhibited against five parties defendants; the injunction awarded: pending suit, two of plaintiffs and three of defendants die; and chancellor makes an order, that unless living plaintiffs, and representatives of deceased plaintiffs, revive the injunction, in name of representatives of deceased plaintiffs, against representatives of deceased defendants, on or before a given day, the injunction shall stand and be dissolved: this order is irregular and erroneous.
    There was a bill exhibited in the supe-riour court of chancery of Staunton in 1803, by Andrew M’Kay, Jeremiah M’Kay, Robert M’Kay and William Tyler, against Isaac Hite executor of Joist Hite, James Williams, Jonathan Clarke, and James, Samuel and Moses Green; one object of which was, to injoin further proceedings at law on four several judgments that had been recovered by Williams and Clarke (who are the agents of the other parties) against the four plaintiffs respectively, for large debts due by them on bonds given for the purchase money of lands, which Williams and Clarke had been authorised to make sale of by a private act of assembly. The injunction was awarded. The rights of the grantees and settlers under the grant of 100,000 acres of lands, made in 1731, to Joist Hite and Robert M’Kay (see 2 Rev. Code, app. II, § 15, p. 346,) were involved in the controversy: and the four plaintiffs, though the judgments at law' against them were several, relied on the same grounds for relief in equity. The suit was transferred to the superiour court of chancery of Winchester in 1812; and there, at the August rules 1812, the deaths of the plaintiff Andrew M’Kay and the defendant Jonathan Clarke were suggested on the record; whereupon all proceeding *in the cause was suspended, for many years, and, in the interval, others of the parties died. At December term 1823, the chancellor made an order in these words:
    “It being suggested to the court, that Andrew M’Kay and William Tyler, two of the plaintiffs, are dead, and also that James Williams, Jonathan Clarke and Samuel Green, three of the defendants, are dead; it is ordered, that unless the plaintiffs who are living, and the representatives of those who are dead, shall revive the injunction, against the representatives of the deceased defendants, in the names of the representatives of the deceased plaintiffs, on or before the 5th day of the next term, the injunction shall stand and be dissolved as an act of this day.”
    And at the next term in April 1824, the court made the following final order: “The injunction in this case having been dissolved at the last term, and no good cause having been shewn for continuing the same, it is therefore adjudged, ordered and decreed, that the bill of the plaintiffs be dismissed, with costs” &c.
    From this decree, the surviving plaintiffs Jeremiah and Robert M’Kay afterwards prayed an appeal to this court.
    Wyndham Robertson for the appellants.
    The orders were wholly irregular. The first of them was a rule nisi not only on the living plaintiffs who were before the court, but on the representatives of the deceased plaintiffs who were not before the court; a rule requiring the living and the representatives of the deceased plaintiffs, to revive the suit against the living- and the representatives of the deceased defendants, on or before a given day, without information or inquiry, who were the representatives, or whether there were any representatives of the deceased parties, without any requisition that this rule should be served on the parties, or the representatives of the parties, whom it affected. The regular effect of the deaths of the parties plaintiffs, in case of their representatives failing to revive the suit at or before the second term after their deaths suggested on the record, *was a discontinuance as to them; and the effect of the deaths of the parlies- defendants, was a revival by scire facias against their representatives, or by their voluntary appearance. 1 Rev. Code, ch. 128, ¡ 38, pp. 497, 8. The court surely could not compel the representatives of the deceased plaintiffs, to revive and prosecute the suit, whether they thought it advisable or no: they had a right to abandon the controversy, if they saw fit: but here is an order, in effect, to compel the living plaintiffs, to compel the representatives of the deceased plaintiffs, to revive and prosecute the suit against the representatives of the deceased defendants, upon pain of having the injunction dissolved as to themselves, and their bill eventually dismissed; and this, when for aught that appeared to the court, there might be no representatives of the deceased plaintiffs, or of the deceased defendants, upon and against whom the living plaintiffs could act. As to the decree of dismission, that was not a consequence of the previous rule nisi, which indicated not the dismission of the bill, but only the dissolution of the injunction, in case the parties should fail to revive the suit; and even if the rule nisi were regular, the decree of dismission is palpably wrong. It is a final decree for and against deceased parties, whose representatives were not before the court, and that because they were not before the court.
    Green and Stanard for the appellees.
    The peculiarity of the case should be considered. Four plaintiffs uniting in the same bill, had obtained an injunction to stay proceedings at law on four several and distinct judgments against each of the plaintiffs respectively. The process of injunction was in effect several. The first order is to be read distributively ; and then it will import, that unless each living plaintiff, and the respective representatives of each deceased plaintiff should take the proper steps to revive the suit against the representatives of the deceased defendant, the injunction should stand dissolved as to each living plaintiff and the representatives of each deceased plaintiff’, respectively. The *order was in truth an order to speed, the cause; and properly understood, it imposed no other duty on the living plaintiffs but to revive the suit for themselves. If either of the living plaintiffs had sued a subpoena scire facias against the representatives of the deceased defenda.nts, the order would have been discharged as to him. There was no other or more proper method to compel them to proceed. As the chancellor, before he interfered by way of injunction to a judgment at law, may hold parties asking such interference at his hands, to reasonable terms, so he may impose reasonable terms upon them, as the condition of continuing his interference; and no terms can be more reasonable, than to require the plaintiffs to use common diligence in prosecuting their suit. The decree of dismission is doubtless wrong, and ought to be corrected. It ought to have been only an absolute order of dissolution of the injunction. But this was obviously a clerical mistake, not an error of judgment in the court.
    Johnson in reply.
    Supposing that the order nisi may be read distributively, and that it is to be understood as the counsel for the appellees explain it, yet it is wholly irregular ; for it is still an order upon the representatives of the deceased plaintiffs, not before the court, and even not known to be in existence. A discontinuance as to-them would have answered every purpose. And the representatives of the deceased defendants might have voluntarily appeared and asked to be let in to defend the rights of their respective testators or intestates. But the order cannot be read distributively as proposed : the four plaintiffs had joined in the bill, asking relief against several judgments at law against them, indeed, but on the same grounds of equity common to them all; and whether or no it was originally proper for them to join in one bill, the process of injunction was one and intire, for all the plaintiffs against joint defendants in equity. The chancellor’s order so regards it, and makes the complete revival of the injunction, by all the living and all the representatives of the deceased plaintiffs, against all the ^living and all the representatives of the deceased defendants, the condition on which the injunction should be continued. The chancellor may impose reasonable terms as the condition of continuing his interference by way of injunction, as well as of his interference in the first instance; he may require the party to do what it is his duty to do : but here the objection is, that the terms were unreasonable, since the parties were required to do what it was not their duty to do.
    
      
      One was related to some of the parties; tbe other had decided the cause in the court of chancery.
    
    
      
      See generally, monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
   The Court

being of opinion, that the order of December 1823, as well as the decree of dismission was clearly erroneous, reversed them both, and remanded the cause.  