delivered the opinion of the Court:

The assignments of error on behalf of the appellant are to the effect, (1) That the court was in error in holding that the death of the lunatic terminated the jurisdiction of the court as to the matters involved in the appellant’s original petition; and (2) That the court was in error in holding that the former petition was not the subject of revivor. And under these assignments of error it is argued principally, that, while the death of a lunatic determines the office of the committee and the court of equity will not entertain claims thereafter filed in the proceedings wherein the adjudication of lunacy was had, yet the jurisdiction remains to adjudicate such claims as had been filed in the cause before the death of the lunatic; and that, therefore, the petitioner’s suit may *594properly be revived against tbe executrix in tbe present instance.

It is not apparent from the record befo.re us whether there was any formal order or decree of the court discharging the committee in this case, and directing her to turn over the assets of the estate to herself as executrix. If there had been such final order or decree, it is very clear that the committee could no longer be held liable to the petitioner upon its claim; for such order or decree, with the transfer of the assets in pursuance of it, would necessarily have terminated the whole litigation, and would have carried with it and disposed of all incidental proceedings in the cause; After such final order or decree it would not have been competent for the court to go back and seek to take up and adjudicate some incidental matter which, either through design or byinadvertence, may not have received express or formal adjudication in the decree or previously thereto — unless, indeed, as sometimes happens, such incidental matter had been duly reserved for further consideration. For it is the nature and the essence of a final decree to terminate the litigation, and to leave nothing undisposed of in the suit.

But it does not appear in the proceedings before us that there has been any final order or decree of the court discharging the committee, or ratifying a final accounting by her, which might be regarded as the equivalent of a discharge; although it is stated in the petition for a revivor that the committee had accounted to the court from time to time for her receipts and disbursements in and about the business of the estate, and that such expenditures, and all and singular her acts in carrying on said business as such committee had been sanctioned and ratified by the court. In the brief filed on behalf of the appellant it is said that “ the appellee has not finally accounted as committee;” but we find no basis for this statement in the appellant’s petition to revive. The fact should have been distinctly averred in that petition, if it was sought to rely upon it; for it is an important fact in the ease.

But assuming that there was no final order or decree in the cause discharging the committee, and no final account filed *595by tbe committee and ratified by the court, and no action whatever of the court in the premises, yet, when there has been a lapse of upwards of two years between the closing out and sale of the business of the lunatic, in which the liability to the appellant is claimed to have been incurred, and the date of this petition for a revivor, when nearly fourteen months have elapsed since the death of the lunatic, and no step whatever has been taken in the interval by the appellant to enforce its claim, although in the meantime a collector for the estate has been appointed and it is to be presumed that the committee has turned over the assets to the collector, and the collector also has settled her accounts and turned over the same assets to the executrix, and all this has been done with the knowledge and presumably with the acquiescence of the appellant, we cannot regard it as required by any rule of equity that the committee, after so divesting herself of the assets, should be recalled to account for them to the appellant. By its inaction under the circumstances the appellant must be presumed to have acquiesced in the discharge of the committee and in the transfer of the assets by her; and by such acquiescence it has precluded itself from further litigation of its claim in the equity proceeding. Bor in order that the equity proceeding should be available, there must be a fund under the control of the court to respond to the demand. It is not sufficient that the appellant has a petition pending to enforce its claim. It is the possession of a fund out of which the claim may lawfully be satisfied, and the jurisdiction of equity over that fund that give the court the right to adjudicate the claim. When without any reservation of right the petitioner acquiesces in the transfer of the fund beyond the jurisdiction of the court, the right of adjudication of the claim is gone. A court of equity does not sit to adjudicate claims cognizable at common law, but to administer equitable relief; and that equitable relief in the present instance is dependent upon its possession and control of the estate of the lunatic.

The proceeding on behalf of the appellant seems to be based to some extent on the theory that the executrix may be *596summoned into a court of equity equally as into a court of common law to revive and defend or prosecute a suit which has been technically abated by death; and it is undoubtedly true that in proper cases this may be done. But when a suit in equity not only has been abated by death, but likewise has been effectively terminated by the relinquishment and transfer of the fund upon which the litigation wholly depended, it is difficult to see upon what principle the executor or administrator can be cited into the court of equity in such manner as to affect the fund in his hands for which he is responsible to another and a wholly distinct tribunal, and which he took without any liability to the court of equity. If there is a just claim against that fund, the law has pointed out the method by which it is to be enforced; and this is not usually by recourse to equity.

Of course, it is of no consequence, in contemplation of law, that in this case the committee, the collector, and the executrix are all one and the same person. The rule must be the same as though they were entirely different.

We must hold that, on account of the long delay of the appellant in prosecuting its claim in the court of equity, and in view of its acquiescence in the virtual discharge of the committee and transfer of the estate to the executrix, the appellant abandoned its proceeding in equity and became remitted to its remedy at common law and under the statute.

The order appealed from dismissing the appellant’s petition must, therefore, be affirmed, with costs. And it is so ordered.