pose by the court, and a suggestion of such substitution shall be entered on the record. The New York Code provides that no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In cases of death, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action is to be continued in the name of the original party, or the court may allow the person to whom the transfer is made, to be substituted in the action. Code of 1851, sec. 121. The motion to continue the action must, in the case of a sole plaintiff, be made by his executor or administrator. In case of several plaintiffs, it may be made by a surviving plaintiff, or by the executor or administrator of the deceased plaintiff'; and it seems that the motion to continue the suit may be made by the defendant, in case no motion for that purpose be made by a surviving plaintiff or the representative of a deceased plaintiff, within a reasonable time. The motion should be noticed for a special term, and be supported by an affidavit of the facts on which the motion is founded. The motion is to be made within one year from the happening of the death, marriage or other disability, and if the party enti tled to move omit to do so within a year, and afterwards desire to continue the suit, he may do so by reporting to a supplemental pleading. An action brought against a sole defendant, to recover the possession of land, may be continued, after the death of the defendant intestate, against his heirs-at-law claiming to have succeeded to his legal rights and to own the land. Waldorph v. Bortle, 4 Howard's Pr. Rep. 358. In this case, Parker, Justice, said: "At common law the action died with the party. James v. Bennett, 10 Wend. 540. The Revised Statutes (2 R. S. 404, 3d ed. § 33,) provide that the action of ejectment should not be abated by the death of any plaintiff, or of one of several defendants, after issue and before verdict or judgment, and authorized proceedings to substitute the names of those who might have succeeded to the plaintiff's title; and in case of the death of one of the defendants, the cause might proceed against the other defendant. Such proceedings were by scire facias. Boynton v. Hoyt, 1 Denio, 53; 2 R. S. 483, 496. The Revised Statutes did not go so far as to continue a suit against the heirs of a sole defendant in ejectment, who died before verdict or judgment. But the provisions of the Code are much broader. Section 121 provides that no action shall abate by the death, marriage or other disability of a party, if the cause of action survive or continue. Where in an action against a non-resident defendant, the summons is served by publication under an order of the judge, the suit is not commenced until the expiration of the time prescribed for publication, so that if the defendant die before the expiration of such time, no action is pending that can be revived against his representatives. McEwens' ex'r v. Public Administrator, 3 Code Rep. 139. After the death of one of several plaintiffs, in an ejectment suit, a motion was made, (under § 121 of the Code,) by the surviving plaintiffs at special term, to substitute the names of two individuals and the people of the state, to prosecute the suit, as representatives or successors in interest of the deceased plaintiff. It being a matter of doubt which of the three parties proposed was entitled to the right, the first being sole trustee under the will, it being doubtful whether he would take the title or only a power in trust, the second being an heir, but doubtful whether a citizen of the United States, and if neither of the two had the right, it was doubtful whether it did not pass by escheat to the people of the state. The motion was denied." St. John v. West, 4 Howard's Pr. Rep. 329. 9. EFFECT OF BANKRUPTCY OF PLAINTIFF. There is scarcely any point of practice, upon which the authorities are so much at variance, or upon which so little light can be derived from writers professing to treat upon this subject, as the question, how far the bankruptcy of the plaintiff causes an abatement of the suit? If, by any means, any interest of a party to the suit in the matter in litigation becomes vested in another, the proceedings are rendered defective in proportion as that interest affects the suit; so that, although the parties to the suit may remain as before, yet the end of the suit cannot be obtained. Mitf. Eq. Pl. by Jeremy, 56, 57. Thus, for example, if the party become bankrupt pending the suit, then, according to the practice of chancery, the suit will be held to be defective; but the bankruptcy does not cause an abatement. Story's Eq. Pl. sec. 329. "There is the same want of accuracy in the books in ascertaining the manner in which the benefit of a suit may be obtained, after it has become defective or abated, by an event subsequent to its institution, as there is in the distinction between the cases, where a suit becomes defective merely, and where it likewise abates. It seems, however, clear, that if any property, or right in litigation vested in a plaintiff, is transmitted to another, the person to whom it is transmitted is entitled to supply the defects of the suit, if it has become defective merely; and to continue it or at least to have the benefit of it, if it is abated. It seems also clear, that if any property or right, before vested in a defendant, becomes transmitted to another person, the plaintiff is entitled to render the suit perfect, if it has become defective, or to continue it if it is abated, against the person to whom that property or right is transmitted." 1 Story's Eq. Pl. sec. 330. 10. ORIGIN OF EQUITY JURISDICTION. The practice of granting injunctions, though established as well by ancient and constant usage, as by the memorable discussion in the reign of James I. yet received little attention from the courts of common law : accordingly we find in the time of Edward IV. the judges of the king's bench telling a plaintiff at law, who had been restrained by injunction after verdict, that they would give judgment if he chose to pray it, and that he could not be injured by so doing, as, though he might be committed to the Fleet, they would discharge him upon a habeas corpus. Even in the time of William III. and Queen Anne, motions were refused to enlarge the term where the plaintiff had a judgment in equity, but had been restrained by injunction. "Be the origin of the equity jurisdiction of the court of chancery," says Story, (Eq. Juris. vol. 1, sec. 51,) "what it may, from the time of the reign of Henry VI., it constantly grew in importance; and in the reign of Henry VIII., it expanded into a broad and almost boundless jurisdiction under the fostering care and ambitious wisdom and love of power of Cardinal Wolsey. Parkes' Hist. of Chan. 55, 56; 3 Reeves' Hist. 379 to 382. Yet, (Mr. Reeves observes) after all, notwithstanding the complaints of the Cardinal's administration of justice, he has the reputation of having acted with great ability in the office of chancellor, which lay heavier upon him than it had upon any of his predecessors, owing to the too great care with which he entertained suits, and the extraordinary influx of business, which might be attributed to other causes. Sir Thomas More, the successor to the Cardinal, took a more sober and limited view of equity jurisprudence, and gave public favor as well as dignity, to the decrees of the court. But still there were clamors from those who were hostile to equity during his time; and especially to the power of issuing injunctions to judgments and other proceedings, in order to prevent irreparable injustice. This controversy was renewed, with much greater heat and violence in the reign of James I., upon the point whether a court of equity could give relief for or against a judgment at common law; and it was mainly conducted by Lord Coke against, and by Lord Ellesmere in favor of, the chancery jurisdiction. At last the matter came directly before the king, and, upon the advice and opinion of very learned lawyers to whom he referred it, his majesty gave judgment in favor of the equitable jurisdiction in such cases." CHAPTER VII. Chapter VII. treats of injunctions to stay proceedings in the spiritual courts; the courts of admiralty; and foreign courts. 1. ORIGIN OF ECCLESIASTICAL COURTS. 2. COURTS OF ADMIRALTY. 3. FOREIGN JURISDICTION. 1. ORIGIN OF ECCLESIASTICAL COURTS. Blackstone (3 Com. 61, 62,) gives the following account of the origin of ecclesiastical courts:-"In the time of our Saxon ancestors there was no sort of distinction between the law and the ecclesiastical jurisdiction. The county court was as much a spiritual as a temporal tribunal. The rights of the church were ascertained and asserted at the same time, and by the same judges, as the rights of the laity. For this purpose, the bishop of the diocese and the alderman, or in his absence, the sheriff of the county, used to sit together in the county court, and had there the cognizance of all causes, as well ecclesiastical as civil: a superior deference being paid to the bishop's opinion in spiritual matters, and to that of the lay judges in temporal. This union of power was very advantageous to them both, the presence of the bishop added weight and reverence to the sheriff's proceedings; and the authority of the sheriff was equally useful to the bishop by enforcing obedience to his decrees in such refractory offenders, as would otherwise have despised the thunders of mere ecclesiastical censures. But so moderate and rational a plan was wholly inconsistent with those views of ambition that were then forming by the court of Rome. It soon became an established maxim in its system of policy that all ecclesiastical persons and all ecclesiastical causes should be solely and entirely subject to ecclesiastical jurisdiction only. It was not, however, till after the Norman conquest that this doctrine was received in England; when William I. was at length prevailed upon to establish this fatal encroachment, and separate the ecclesiastical court from the civil. The consequence of this separation was, that the Saxon laws were soon overborne by the Norman justiciaries, when the county court fell into disregard by the bishop's withdrawing his presence, in obedience to the charter of the Conqueror; which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon law. Henry I., at his accession, among other restorations of the laws of Edward the Confessor, revived this of the union of the civil and ecclesiastical courts, which was, according to Sir Edward Coke, after the great heat of the conquest was past, only a restitution of the ancient law of England. This, however, was ill-relished by the clergy, who, under the guidance of Archbishop Anselm, very early disapproved of a measure that put them on a level with the laity, and subjected spiritual men and causes to the inspection of the secular magistrates; and, therefore, in their synod at Westminster, (3 Hen. 1st,) they ordained that no bishop should attend the discussion of temporal causes; which soon dissolved this newly effected union. And when, upon the death of Henry I., the usurper Stephen was brought in and supported by the clergy, we find one article of the oath which they imposed upon him was, that ecclesiastical persons and ecclesiastical causes should be subject only to the bishop's jurisdiction. And as it was about that time that the contest and emulation began between the laws of England and those of Rome, the temporal courts adhering to the former and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable; which probably would else have been effected at the general reformation of the church." 2. COURTS OF ADMIRALTY. In England there is a distinction beeween the instance and the prize court of admiralty. The first named is the ordinary and appropriate court of admiralty, taking cognizance of the general subjects of admiralty jurisdiction, and proceeding according to the civil and maritime law. The latter is a special and extraordinary jurisdiction. To constitute it, or call it into action, in time of war a special commission issues, and the court proceeds summarily, and is governed by general principles of policy, and the law of nations. See 1 Kent's Com. 353, 354. The district courts of the United States possess all the powers of courts of admiralty whether considered as instance, or as prize courts. Glass v. The Sloop Betsey, 3 Dallas, 6; Penhallow & Door, 3 Dallas, 54; Act of Congress of June 26, 1812; sec. 6. 1 Kent's Com. 355. As |