
    Duguid v. Patterson.
    Spring Vacation,
    1809.
    1. Suits — Revival. — Practice of reviving against resident and non-resident defendants.
    2. Order of Court — Absence of Parties — Effect.—A report under an order made when the representatives of a deceased party were not "before the Court, will be set aside.
    In 180S this suit abated as to Charles Patterson, one of the principal defendants, and there was an order of publication *against his representatives who lived in Kentucky, in March, 1807. In September following, there was an additional order for an account. In June last, the suit was revived,' and the cause now coming on, upon the report made in pursuance of the order of September, 1807, Mr. Wickham objected to the report, because the representatives of Charles Patterson were not then in Court; but Mr. Williams said the practice had been both ways; either to bring on the cause upon the order of publication, or to revive the suit upon that order, and then to bring it on.
   By the Chancellor.

This is the first time such a case has occurred before me; and if the practice has been as Mr. Williams states it, it was unauthorized, for when a suit abates against a resident party, it cannot be revived unless there is an appearance for him, or process returned executed, and then the order is made, and not before: and so with respect to a non-resident party, on whom process cannot be served, in lieu of which an order of publication is made, for two months in a public newspaper; and then, and not before, the suit should be revived ; and then, and not before, it should be proceeded in : and, therefore, the last report in this case must be recommitted, as having been made under an order which was made wnen the representatives of Charles Patterson were not before the Court. The practice upon this point is now settled.  