[Clarke v. Mathewson et al.]

latures have, therefore, passed enabling statutes, applicable to state courts. Judicial power to that effect, was, and is wanting, without legislative enactment; even in courts of general jurisdiction. Congress has not attempted to invest the federal courts with the power now claimed for them by the plaintiff; nor could congress give jurisdiction beyond the limitations of the constitution.

It is contended for the defendant, that the whole current of decisions runs against the jurisdiction now asserted by the plaintiff. "If there are not proper parties to the suit as it stands on the bill of revivor, that circumstance may, it would seem, be pleaded to such bill." Beame's Pleas in Eq. 304; 11 Ves. 313.

It is true, on obvious grounds, that a defendant to a bill of revivor cannot plead a plea which has been pleaded by the original defendant and overruled; nor, it is presumed, one which might have been pleaded by original defendant, but waived or omitted at its proper time. Beame, obv. sup. Samuda v. Furtado, 3 Bro. C. C. 70.

Nor is a cross bill liable to any plea which will not hold to the original bill; nor to a plea to jurisdiction, though the original might be. Beame, 310. Because a cross bill is in the nature of a defence selected by the adverse party, the reconventio of the civil jurisdiction. Wood's Inst. Civ. Law, 325, &c. Such cases leave it supposed and granted, that, in the case now in question, the objection is good.

The very point of jurisdiction raised by the plea in this case, has been decided in the courts of the United States, and in favour of the view taken by the defendants. Chappedelaine et al. v. Decheneaux, 4 Cranch, 306. Also the case, Potter v. Rhodes, decided in the circuit court of the United States for Rhode Island district, November term, 1806. The suit was by Potter, of Massachusetts, against Rhodes, of Rhode Island. Potter died during the pendency, and his administrators appeared, and were admitted as such to prosecute. It then appeared that one of them was a citizen of Rhode Island; and the court decided that it had no jurisdiction for that cause.

The court always looks solely to the record. There is no case in which they look out of it; for the record is always of the parties own making. It is on this ground they always refuse to go into questions of the removal of a party after a suit has been instituted. The only question is, does it appear on the record that the parties are e tizens of different states; and this appearing, the court go no further.

The law might have been more advantageous to parties litigating VOL. XII.-Y

[Clarke v. Mathewson et al.]

in the courts of the United States; but it is not so; and the law must prevail. There are other cases of great hardship, and producing great embarrassment: the case of all the parties being required to be citizens of another state. This is a hardship, but it cannot be helped. The law is positive, and the courts are obliged to obey it.

The bill of revivor says the original suit has abated, and asks to revive it as a controversy between the administrator and the defendants. While the matters in dispute between the original parties may remain, there may be others which will be raised by the bill of revivor; and these will be between citizens of Rhode Island, exclusively.

Suppose it shall become necessary to file a cross bill, it must be filed by a citizen of Rhode Island, against another citizen of that This seems to be conclusive of the question.

state.

by

Mr. Justice STORY delivered the opinion of the Court.

This is the case of an appeal from the circuit court of the district of Rhode Island. The original cause was a bill in equity brought Willard W. Wetmore, deceased, a citizen of Connecticut, against the defendants, Henry Mathewson and others, all citizens of Rhode Island; for an account upon certain transactions set forth in the bill, and with a prayer for general relief. After the cause was at issue upon the hearing, it was, by agreement of the parties, ordered by the court to be referred to a master to take an account; and pending the proceedings before the master, the intestate died. Administration upon his estate was duly taken out by the present plaintiff, John H. Clarke, in the state of Rhode Island; the laws of Rhode Island requiring that no person not a resident of the state, should take out letters of administration; and also making such administration indispensable to the prosecution and defence of any suit in the state, in right of the estate of the intestate.

Clarke filed a bill of revivor in the circuit court, in June, 1834, in which he alleged himself to be a citizen of Rhode Island, and administrator of Wetmore, against the defendants; whom he alleged, also, to be citizens of the same state. So that it was apparent upon the face of the record, that the bill of revivor was between citizens of the same state. Upon motion of the defendants, at the November term of the circuit court, A. D. 1835, the court ordered the ill of revivor to be dismissed for want of jurisdiction; and from this decretal order, the present appeal has been taken by the appellant.

[Clarke v. Mathewson et al.]

The case, as it was decided in the circuit court, is reported in 2 Sumner's Rep. 262, 268; and the ground of dismissal was, that the bill of revivor was a suit between citizens of the same state. The judiciary act of 1789, ch. 20, sec. 11, confers original jurisdiction upon the circuit courts, of all suits of a civil nature at common law and in equity; where the matter in dispute exceeds the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party; or the suit is between a citizen of the state where the suit is brought and a citizen of another state. If, therefore, the present had been an original bill brought between the present parties, it is clear that it could not have been maintained; for although the plaintiff could sue in autre droit, and as administrator of a citizen of another state; yet the suit would be deemed a controversy between him and the defendants, and .not between his intestate and the defendants. This is the necessary result of the doctrine held by this Court in Chappedelaine v. Decheneaux, 4 Cranch, 306, and Childress v. Emory, 8 Wheat. 642.

The circuit court treated the present case as falling within the same predicament. In this, we are of opinion, that the court erred, 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 bill 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 events; and the court had a rightful authority to proceed to a final determination of it. If, after the commencement of the suit, the original plaintiff had removed into, and become a citizen of Rhode Island, the jurisdiction over the cause, would not have been divested by such change of domicil. So it was held by this Court in Morgan's Heirs v. Morgan, 2 Wheat. 290, 297; and Mollan v. Torrance, 9 Wheat. 537; and Dunn v. Clarke, 8 Peters, 1.

The death of either party, pending the 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 a 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 cause proceeds to its

[Clarke v. Mathewson et al.]

regular determination as an original bill. The bill of revivor is not the commencement of a new suit; but is the mere continuation of the old suit. It is upon a 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; for such bills are treated not strictly as original bills, but as supplementary or dependent bills, and so properly within the reach of the court; although the defendant, (who was plaintiff in the original suit) lives out of the jurisdiction. A very strong application of the doctrine is to be found in the case of Dunn v. Clarke, 8 Peters, 1; where an injunction bill was sustained, although all the parties were citizens of the same state; the original judgment, under which the defendant in the injunction bill made title as the representative in the realty of the deceased, having been obtained by a citizen of another state, in the same circuit court.

But if any doubt could upon general principles be entertained upon this subject, we think it entirely removed by the 31st section of the judiciary act of 1789, ch. 20. That section provides that where, in any suit pending in the courts of the United States, either of the parties shall die before final judgment, the executor or administrator of such deceased party, who was plaintiff, petitioner or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend any such suit or action until final judgment, and that the defendant shall be obliged to answer thereto accordingly; and the court before whom the cause is depending, is empowered and directed to hear and determine the same, and to render judgment for or against the executor or administrator, as the case may require. Other auxiliary provisions are made to carry this enactment into effect. Now, in this section, congress manifestly treat the revivor of the suit, by or against the representative of the deceased, as a matter of right, and as a mere continuation 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. Of the competency of congress to pass such an enactment under the constitution, no doubt is entertained. The present case falls directly within its purview; and we are therefore of opinion, that the decree of the circuit court, dismissing the bill of revivor, ought to be reversed; and the cause remanded to the circuit court for further proceedings.

I take this opportunity of adding, that I fully concur in all the

[Clarke v. Mathewson et al.]

reasoning of this Court on this subject. After the decision had been made in the circuit court, upon more mature reflection I changed my original opinion; and upon my expressing it in the circuit court, and upon the suggestion of the judges of that court, the case has been brought here for a final determination. I hope that I shall always have the candour to acknowledge my errors, in a public manner; whenever I have become convinced of them.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Rhode Island, and was argued by counsel. On consideration whereof, it is now hereby ordered, adjudged and decreed by this Court, that the decree of the said circuit court, dismissing the bill of revivor in the cause, ought to be, and the same is hereby reversed; and that this cause be, and the same is hereby remanded to the said circuit court, for further proceedings to be had therein, in conformity to the opinion of this Court, and according to law.