Allen v. Fairbanks

Upon the death of the defendant a scire facias issued to revive the cause, pursuant to section 955, Rev. St. The executors appear, and move to dismiss the scire facias and the bill as to them, because the action does not survive. That the bill sets forth no ground for relief, and the plaintiff’s proof establishes none, is urged against survival; because, if no cause of action existed, none could survive. But, whether the bill is demurrable- or not, or is or is not sustained by proof, cannot be tried in this manner. The question is not whether the plaintiff's maintained their cause of action…