
    Vaughan et ux. v. Wilson’s Executor.
    February Term, 1810.
    a. Revival of Suit — Scire Facias — When Sufficient.— A bill of revivor is unnecessary, where a mere revival of the suit is sought, a scire facias being sufficient.
    2. Same — Same—Objection to — How Made, — Objections to a scire facias to revive a suit cannot be made on motion: it should be by plea, or demurrer, or if, at the hearing, the party do not entitle himself to revive, the suit may be dismissed.
    Upon the death of the plaintiffs and the executor of the defendant, a sci. fa. was issued in the name of the administrator of the wife, as she survived her husband, against the administrator of the executor of the defendant; to which it was objected, upon motion, that the sci. fa. should be dismissed, for the want of a bill.
    
      
      Revival of Suits — Scire Facias. — In Reid v. Stuart, 20 W. Va. 391, it is said: "Before the passage of any statute law when a sole plaintiff died intestate his representative, his administrator and heirs, as the case might be, or bothif each were interested, had a right by a bill of revivor to revive a cause in equity and proceed in it to a final decree. But in such a case this right of revival, if the cause of action itself survived, was in the case pnt absolute, and the parties filing the bill had only to prove that they were the representatives of the deceased, if this were denied, and the cause was as a matter of course revived. Both in England and in the various states of this Union it was therefore wisely considered by the legislatures, that in such a case it was entirely unnecessary to require the representatives of the deceased plaintiff to file a formal bill of revivor, and that a simple motion with or without notice or a scire facias to revive the canse was all that was necessary to effect all the objects of a formal hill of revivor. In such case under the statute law of Virginia in existence prior to 1810 on the decease of the plaintiff his representative might revive a chancery cause by scire facias without filing a formal hill of revivor; and this statute has been ever since continued as law both in Virginia and in this state. See Vaughan v. Wilson, 4 Hen. &c 480; 1 R. C. of Va. of 1819, p. 497, § 38; Code of Va. 1873, ch. 167, § 4; Code of W. Va., ch. 127, § 4.”
      The principal case is also cited on this question in Gainer v. Gainer, 30 W. Va. 393, 4 S. E. Rep. 425.
    
   By the Chancellor.

The sci. fa. is given by an act of the assembly, and a bill is not necessary, where nothing but the mere revival is sought. But the defendant may plead or demur to the sci. fa. as he might, before the act, to a bill of revivor; and so at the hearing, if the party do not entitle himself to revive, the suit may be dismissed.

But to take up the subject out of order, and to dismiss the sci. fa. on motion, for the want of a bill, would be premature, if not improper.

Motion denied.  