COLEGATE D. CASE. 409

in favour of persons non compos mentis.(o) Here it is
declared, that all appeals shall be made and entered within nine
months from the time of making the decision, and not afterwards;
unless it be alleged on oath, that such decree was obtained by
fraud or through mistake;(p) but there is no saving in favour of
persons non compos mentis.

Where a decree has been passed, as in this instance, affecting
as well the real as the personal estate of the parties, and the suit
abates by the death of either of them, as the realty passes to the
heirs and the personalty to the administrator or executor of the
deceased, in order to embrace the whole subject of the decree, it
should be revived by or against both the heirs and personal repre-
sentatives of the deceased party. But such a comprehensive revi-
val of the suit is not in all cases indispensably necessary, as each
class of the representatives of the deceased may revive and prose-
cute the suit to the extent of their respective interests, and no
further.(q) It is said, that in England a suit cannot be revived
merely to recover costs not taxed: this however has been regarded
there as a very odd rule ;(r) and having met with no instance of
its having been acted upon by this court, I feel no hesitation in
rejecting a rule which has been so often condemned, and which
appears to be now reluctantly tolerated by the tribunal in which it
originated. Be that however as it may, in this case the costs, it is
alleged, have been taxed, and therefore the amount of them, as a
liquidated decreed debt, on the death of the plaintiff passed to her
personal representative. Consequently, in order to recover that
debt this decree may well be revived by her executor or adminis-
trator alone; but no attempt appears to have been as yet made io
to revive it.

Whereupon it is ordered, that the said petition be and the same
is hereby dismissed with costs.

After which the case having been brought before the Court of
Appeals, the appeal wlis dismissed. Qwings v. O wings, 3 G. & J* 1.

(0) Shelf. Lun. 424.—(p} 1820, ch. 200, s. 14.—(f) Ferrers v. Cherry, 1 Eq Ca.
Abr. 4.-(r) 2 Mont. Dig, 524.

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