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534 HALL v. McPHERSON.
obtained the benefit of the insolvent law, other persons became
thereby interested in the matter in litigation; and the defendant,
having died, after he had been thus discharged under the insolvent
law, and the suit having been revived by a supplemental bill
against his trustee alone, this application by the plaintiff to dismiss
his bill presents questions of much importance in practice, and of a
nature involving a consideration of some of the positive provisions
of the insolvent law, and of the principles arising out of those
provisions.
In all cases where a defendant is chargeable with the rents and
profits of property; and wherever it may be necessary to ascertain
the amount to be awarded to the plaintiff, it is of course to refer the
case to the auditor, with directions to state such an account as the
nature of the case may require, and such other accounts as either
party may desire. But a reference to the auditor in such cases
does not, of itself, place the parties in the reciprocal relation to
each other of plaintiff and defendant, as on a bill for an account
upon a dealing in trade, as in this instance, where, after a decree
to account, both parties are considered as actors in relation to such
account; and the final decree may be in favour of the one or the
other, according as the balance may appear. And, therefore, if the
suit should abate after such a decree, by the death of either plain-
tiff or defendant, the surviving party, or the representatives of the
deceased may have it revived by a bill of revivor; because, the
defendant, after such a decree, has as direct an interest in the con-
tinuance of the suit as the plaintiff, and may ultimately be as
essentially benefited by it. (e)
But, as in such cases, that reciprocal interest in the suit which
the decree to account gives to each of the parties enables either of
them to revive and continue it, so the plaintiff cannot, as under
other circumstances, be allowed at his pleasure, after such a decree,
to dismiss his bill on the payment of costs; but can only get rid
of it by a final decree, or by availing himself of the negligence
and default of the defendant after he has been called upon to pro-
ceed; and therefore, after a decree which thus gives the defendant
(e) Kent s. Kent, Prec. Cha. 197; Stowell v. Cole, 2 Vern. 210, 207; Bones'
case, 1 P. Will. 268; Hollingshead's case, 1 P. Will. 744; Anonymous, 3 Atk. 691;
Thorn v. Pitt, Sele. Ca. Cha. 54; Dinwiddie v. Bailey, 6 Ves. 141; Williams v.
Cooke, 10 Ves. 406; Horwood v. Schmedes, 12 Ves, 311; Bayley v. Edwards, 3
Swan. 70S; Bodkin v. Claney, I Ball. & B. 217; Smith v. Marts, I Rand. 449;
Moreton v. Harrison, 1 Bland, 499; 1825, ch. 158,
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