JOHN H. CLARKE, ADMINISTRATOR OF WILLARD W. WETMORE, apPELLANT V. HENRY MATHEWSON, CYRUS BUTLER, EDWARD CARRINGTON, AND SAMUEL WETMORE, APPELLEES.

A bill was filed by W. a citizen of Connecticut, against M. and others, citizens of Rhode Island, in the circuit court of the United States for the district of Rhode Island. An answer was put into the bill, and the cause was referred to a master for an account. Pending these proceedings, the complainant died; and administration of his effects was granted to C. a citizen of Rhode Island, who filed a bill of revivor in the circuit court. The laws of Rhode Island do not permit a person residing out of the state to take out administration of the effects of a deceased person within the state; and make such administration indispensable to the prosecution and defence of any suit in the state, in right of the estate of the deceased. Held, that the bill of revivor was in no just sense an original suit, but was a mere continuation of the original suit. The parties to the original suit were citizens of different states; and the jurisdiction of the Court completely attached to the controversy. Having so attached, it could not be divested by any subsequent proceedings; and the circuit court of Rhode Island has rightful authority to proceed to its final determination.

If, after the proper commencement of a suit in the circuit court, the plaintiff removes into, and becomes a citizen of, the same state with the defendant; the jurisdiction of the circuit court over the cause is not affected by such change of domicil.

The cases of Morgan's Heirs v. Morgan, 2 Wheat. 290, 4 Cond. Rep. 320; and Mollan and others v. Torrance, 9 Wheat. 537, 5 Cond. Rep. 666; and Dunn v. Clarke, 8 Peters, 1: cited.

The death of a party pending a suit does not, where the cause of action survives, amount to a determination of the suit. It might, in suits at common law, upon the mere principles of that law have produced an abatement of the suit, which would have destroyed it. But in courts of equity, an abatement of the suit by the death of the party, has always been held to have a very different effect; for such abatement amounts to a mere suspension, and not to a determination of the suit. It may again be put in motion by a bill of revivor; and the proceedings being revived, the court proceeds to its determination as an original bill.

A bill of revivor is not the commencement of a new suit, but is the mere continuance of the old suit. It is upon ground somewhat analogous that the circuit courts are held to have jurisdiction in cases of cross bills and injunction bills, touching suits and judgments already in those courts.

In the 31st section of the judiciary act of 1789, congress manifestly treats the revivor of a suit, by or against the representatives of the deceased party, as a matter of right, and as a mere continuance of the original suit; without any distinction as to the citizenship of the representative, whether he belongs to the same state where the cause is depending, or to another state.

[Clarke v. Mathewson et al.]

ON appeal from the circuit court of the United States, from the district of Rhode Island.

Willard W. Wetmore, a citizen of Connecticut, filed a bill to June term, 1830, of the circuit court of the district of Rhode Island, against Henry Mathewson, Cyrus Butler, Edward Carrington, and Samuel Wetmore, citizens of the state of Rhode Island; claiming an account of certain mercantile adventures, in which he alleged himself to have been interested, together with the books, invoices, and list of passengers on board of the ship Superior, in which he asserted he was interested; and for a full settlement of all accounts between him and the defendants: and for such other and further relief in the premises as the court might think proper.

The separate answer of Henry Mathewson to the complainant's bill was filed in September, 1830; the answers of the other defendants having been filed in June or July of the same year.

A supplemental answer was afterwards filed by Henry Mathewson; and in November, 1831, after various pleadings in the case, counsel having been heard, the cause was referred to a master to take and state an account between the parties, &c. The parties appeared before the master and his assistants, and an examination of the accounts was had and proceeded in.

In 1834, before a report was made by the master, Willard W. Wetmore died; and administration of his estate and effects was granted by, and out of the municipal court of the city of Providence, in the state of Rhode Island, to John H. Clarke, a citizen of that state: who thereupon filed a bill in the circuit court to revive the suit, and prayed that the same should stand in the same situation, as at the decease of the original complainant, Willard W. Wetmore.

On the 7th of July, 1834, Henry Matthewson appeared in the circuit court; denied the jurisdiction of the court, and moved to dismiss the suit, on the ground that John H. Clarke was a citizen of the state of Rhode Island, as were also the defendants. At November term, 1835, the circuit court dismissed the bill for want of jurisdiction; and the complainant appealed to this Court.

The case was argued by Mr. Southard for the appellants; and by Mr. Tillinghast and Mr. Webster for the appellees.

[Clarke v. Mathewson et al.]

Mr. Southard for the appellants contended:

1st. That the court had jurisdiction of the cause upon the original

bill.

2d. That the jurisdiction would not have been taken away by the removal of the complainant to Rhode Island.

3d. That the death of the complainant did not abate, but suspend, the suit; and the jurisdiction of the court was not thereby lost.

4th. That the administrator had a right, in equity, to revive and continue the suit.

The circuit court of Rhode Island had originally jurisdiction of the case; and the parties went on, after the filing of the bill, and the answers, to the examination of the accounts under an interlocutory decree of the court. While the cause was in this state, the complainant died, and by the laws of Rhode Island no administration of his affairs could be granted to any one but a citizen of that \state. The act of the legislature is express on the subject; and requires that administration of the estates of decedents shall only be given to citizens and residents of Rhode Island.

If, then, this cause is to proceed, it must be by a plaintiff or complainant who is a citizen of Rhode Island; and if not, all the litigation between the parties will have been fruitless and unproductive. If the jurisdiction of the court has ceased, a result will occur which would prevail in no other state. The parties must commence a suit in the court of the state, where he may perhaps be met with a plea of the statute of limitations; and thus his remedy will be for ever defeated. The case, too, is one peculiar for the jurisdiction of a court of chancery;, and the courts of the state of Rhode Island have no chancery jurisdiction.

This is a bill of revivor; and from its nature and purpose, it seeks to restore the case to the chancery docket of the circuit court, in the same situation it was before the death of the original complainant. It does not ask to change the controversy, or to add to it; and it will stand when revived, in the condition it did before the occurrence of the event which made it necessary to revive it. The bill of revivor is not an original suit; it is nothing more than the means of continuing the suit already commenced. It introduces no new matters for controversy and adjustment; and only furnishes the means of bringing to a close those already in possession of the court. The citizenship, or residence of the administrator has no connection with the case;

[Clarke v. Mathewson et al.]

the matters are litigated in the same manner as if the original party was yet alive.

It is, then, still a controversy within the purpose of the judiciary act, which gives the circuit courts jurisdiction of matters in suit between citizens of different states; as all the matters controverted will be those set forth in the bill of the complainant originally filed by him in the circuit court, he being then a citizen of Connecticut.

The death of a party to a suit in chancery does not abate the suit; it is only suspended. In this the law of chancery differs from the common law. Cited Grant's Chancery, 61, 62; Cooper's Chancery, 64; and this is more especially true under the judiciary act of the United States, and in the courts of the United States. By the 31st section of the act, administrators and executors are authorized to prosecute suits in the courts of the United States..

The object of this section was to carry out the principle that a suit should not abate, if the cause of action survived. Congress intended to supply a remedy in the case of the decease of a party. It should be shown there has been a decision on this point by a court of the United States; and until this is done the plain language of the section will prevail.

Authorities cited to show, that where jurisdiction has attached, it cannot be divested by any thing which does not change the great interests in the cause. 1 Peters' C. C. R. 444; 9 Wheat. 537; 2 Wheat. 290.

It has not been the course of the courts of the United States to consider their jurisdiction, after it has once attached, as taken away by the subsequent change of residence of the party. A suit properly commenced between citizens of different states, still proceeds; although the parties may, before its termination, become citizens of the same state. This is a stronger case than where the party dies. It was the act of the party to become a citizen of the same state with his opponent; it is by the visitation of God, that the party in this case ceased to have ability to proceed in his cause.

Suppose a citizen of Rhode Island, after taking out administration to the estate of Willard W. Wetmore, had removed to Connecticut; this, if done bona fide, would give the court jurisdiction. If immediately afterwards, he returns to Rhode Island, the jurisdiction of the cout is not disturbed. Cited 1 Paine's C. C. R. 594.

All the cases which have been decided, have been as to the vesting of the jurisdiction in the courts of the United States originally.

[Clarke v. Mathewson et al.]

This is a case in which the jurisdiction has fully and legally vested; and the act of congress declares that the suit shall not abate by the death of one of the parties. No matter what the form of a bill of revivor may be, it is no more than the instrument to carry into effect the act of congress which declares the suit shall survive.

As to the suggestion that questions may arise under the bill of revivor, and that they will be questions between citizens of the same state; the Court must be aware that these must be questions in the original suit. They will be incidents to that suit, and to the matters in controversy in it; and no more.

Mr. Webster and Mr. Tillinghast for the defendants.

The plaintiff alleges, that he was appointed administrator by a court of probate in Rhode Island; and he sets forth various matters, all necessary to his title and claim, and all of which the defendant may legally controvert. The prayer of this bill, which is original as between these parties, is, that a former bill, exhibited in the lifetime of his intestate, when this plaintiff sustained no relation to that bill, its parties, or its subject matter, may be revived for his benefit and relief, with the benefit and use of all proceedings therein; and all against a citizen of the same state, who resists and controverts his right. This is the controversy of this bill; and it is wholly between citizens of the same state.

The plaintiff's relation to the estate of Wetmore, deceased, was not thrown upon him by the act of God, or the operation of law; but was formed and assumed by his own consent and contract.

His title to any thing claimed in the former bill, if he has any, is by purchase.

If a legal administrator, he is the legal and sole owner of all the property claimed; and the court, under this bill, cannot, it is presumed, deal with any claims to the property beyond those vested in him. But were this otherwise, still it not only does not appear in the bill that those who may have ulterior claims on him, as creditors, surviving partners, or distributees of the property of the deceased, are citizens of another state; but, on the contrary, the reverse appears.

The courts of general jurisdiction are open to him; and there are perfect remedies therein for every grievance in those courts.

It required legislative power to enable an administrator to come into a suit pending at the death of his intestate, to revive and continue the proceedings in a court of general jurisdiction. State legis