Opinion of the Court.

the death of one of several plaintiffs or defendants does not abate an action which survives to or against the survivor of them, has been held to extend to writs of error, because, as said by Lord Ellenborough, and repeated by Chief Justice Waite: "The proceeding is an action which is commenced by a writ, and the cause of the action is the damage sustained by the parties from the error in the previous judgment, and this damage equally attaches on the survivor in this as in any other action." Clarke v. Rippon, 1 B. & Ald. 586; Moses v. Wooster, 115 U. S. 285; McKinney v. Carroll, 12 Pet. 66. Equally applicable to writs of error is section 955 of the Revised Statutes, (following section 6 of the statute of Will. 3,) by which, as observed by Chief Justice Waite in Schreiber v. Sharpless, before cited, "the personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action on account of which the suit is brought survives by law." 110 U. S. 76, 80.

The result is, that by the law of Virginia the administrator has no right to maintain this action, and that by the statutes of the United States regulating the proceedings in this court he is not authorized to come in to prosecute this writ of error. The only verdict and judgment below were in favor of the defendant, who is not moving to have that judgment affirmed or set aside. The original plaintiff never recovered a verdict, judgment upon which might be entered or affirmed nunc pro tune in his favor. If the judgment below against him should now, upon the application of his administrator, be reversed and the verdict set aside for error in the instructions to the jury, or, according to the old phrase, a venire de novo be awarded, no new trial could be had, because the action has abated by his death. Hemming v. Batchelor, above cited; Bowker v. Evans, 15 Q. B. D. 565; Spalding v. Congdon, 18 Wend. 543; Corbett v. Twenty-third Street Railway, 114 N. Y. 579; Harris v. Crenshaw, 3 Rand. 14, 24; Cummings v. Bird, 115 Mass. 346.

The necessary conclusion is that, the action having abated by the plaintiff's death, the entry must be

Writ of error dismissed.

Harlan, J., Dissenting.

MR. JUSTICE HARLAN dissenting.

I cannot agree that this action abates or that the writ of error should be dismissed because of the death of the original plaintiff.

In the discussion at the bar of the question whether the action had abated by the death of the plaintiff, reference was made to chapter 103 of the Code of West Virginia, giving to the personal representative of one whose death has been caused by the wrongful act, neglect, or default of any person or corporation, a right of action for damages against such person or corporation. The right to bring such action is limited to two years, and the damages recovered cannot be subjected to the payment of the debts and liabilities of the decedent, but must be distributed to the parties and in the proportion provided by law in relation to the personal estate of those who die intestate. In my judgment, those provisions are of no consequence in the present inquiry. This suit was brought by the person alleged to have been injured to recover compensation for such injuries as he sustained. It is not claimed that his death, since this writ of error was sued out, was caused by those injuries: And the question is whether this personal action was abated by his death. Its determination, it is agreed, depends upon the law of West Virginia.

By the Code of West Virginia, c. 127, it is provided :

"SEC. 1. Where a party dies, or becomes convict of felony, or insane, or the powers of a party who is a personal representative or committee cease, if such fact occur after verdict, judgment may be entered as if it had not occurred.

"SEC. 2. Where such fact occurs in any stage of a cause, whether it be in a court of original or appellate jurisdiction, if it occur as to any of several plaintiffs or defendants, the suit may proceed for or against the others, if the cause of suit. survive to or against them. If a plaintiff or defendant die pending any action, whether the cause of action would survive at common law or not, the same may be revived and prosecuted to judgment and execution in the same manner as if it were for a cause of action arising out of contract.

Harlan, J., Dissenting.

"SEC. 3. If, in any case of appeal, writ of error or supersedeas which is now or may hereafter be pending, there be at any time in an appellate court suggested or relied on, in abatement, the death of the party, or any other fact which, if it had occurred after the verdict in an action, would not have prevented judgment being entered as if it had not occurred, the appellate court may, in its discretion, enter judgment or decree in such case as if the said fact had not occurred."

Under the first section above quoted judgment could be entered without reviving the action if the party died after verdict. That section is substantially like section 1 of the statute of 17 Car. 2, c. 8, § 1. The object of the first clause of the second section of chapter 127 of the Code of West Virginia was to dispense with the necessity of reviving an action in which there were several plaintiffs or defendants, one of whom had died pending the action, provided the cause of suit was one which, according to the settled principles of the common law, survived to or against the other parties. This clause had the same object as the sixth and seventh sections of the statutes of 8 and 9 Will. 3, c. 2. These English statutes were examined in Kramer v. Waymark, L. R. 1 Ex. 241, 243, in which an infant plaintiff sued by next friend to recover damages for injuries sustained through the negli gence of the defendant. The child died after verdict and before judgment was signed. Upon a rule to show cause why the judgment should not be set aside, on the ground of the death of the plaintiff before judgment, the court discharged the rule, saying that the proceedings could not be stayed in face of Palmer v. Cohen, 2 B. & Ad. 966. In the latter case, which was an action for libel, the plaintiff died after verdict and before judgment was entered by his executor at the next term. The court refused to set aside the judgment, holding that the death of the plaintiff, after verdict, did not prevent his executor from entering judgment. In the same case, the court referred to the Common Law Procedure Act, 1852, § 139, which provided that "in all actions, personal, real, or mixed, the death of either party between the verdict and the judgment shall not hereafter be alleged for error, so as such

VOL. CLI-45

Harlan, J., Dissenting.

judgment be entered within two terms after such verdict," (15 & 16 Vict. c. 76, § 139,) and said that it was stronger than the statute of Car. 2, and applied "to all actions, whether they would have survived to an executor or not." See Gaines v. Conn's Heirs, 2 Dana, 232.

The principal difference between the West Virginia statute, before it was amended in 1868, and the statutes of 17 Car. 2 and 8 and 9 Will. 3, §§ 6, 7, was that the latter did not apply to real actions, whereas the former embraced all actions -real, mixed, and personal. The first clause of section 2 of chapter 127 of the West Virginia Code is important in the present discussion, because the words "if the cause of suit survive to or against " any one of several plaintiffs or defendants, show that even when that section was adopted the legis lature had in mind the distinction at common law between actions that survived and those that did not survive. And in 1868, with this distinction still in view, the legislature added the second clause of the second section, providing that "if a plaintiff or defendant die pending any action, whether the cause of action would survive at common law or not, the same may be revived and prosecuted to judgment and execution in the same manner as if it were for a cause of action arising out of contract."

If the second clause of section 2 of chapter 127 had never been adopted, an action in tort would not have abated in West Virginia by reason of the death of the plaintiff after verdict, but judgment could have been entered upon the verdict. This, according to Kramer v. Waymark, above cited, was the construction placed on the English statute, upon which the first section and the first clause of the second section of chapter 127 of the Code of West Virginia were evidently based. But the second clause of the second section of that chapter was a step in advance. It seems to me clear that the legislature intended, by that clause and under the circumstances stated in it, to permit any action, whatever its nature, and at every stage of it, to be revived and prosecuted to judgment and execution without reference to the question whether the cause of action would or would not survive at common law. The

Harlan, J., Dissenting.

purpose was to remove from the jurisprudence of West Virginia the distinction existing at common law between causes of action that survived and those that did not survive. Martin sued to recover compensation for the injury alleged to have been done to him through the negligence of the railroad company. This cause of action would not have survived at common law where death occurred before verdict. But that fact became immaterial under the legislation of 1868, which expressly provided that, whether the cause of action would survive at common law or not, the case could be revived and proceed to judgment precisely as it might do in cases of contracts. The decision now rendered makes the statute mean just what it would mean, if it did not contain the words "whether the cause of action would survive at common law or not." The court holds that an action cannot be revived and prosecuted to judgment and execution if the cause of action be one that would not have survived at common law; and this, notwithstanding the statute, in plain words, says that the inquiry "whether the cause of action would survive at common law or not," is immaterial.

It is said that this conclusion cannot be sustained with due regard to the decisions of the Supreme Court of Appeals of West Virginia. The case particularly relied on in support of this contention is Cunningham v. Sayre, 21 W. Va. 440, 444. There death occurred before the verdict, and the question was whether an action for unlawful entry and detainer abated upon the death of the plaintiff. The court held that the action did not abate, and its decision of that point is expressed in the syllabus. As the constitution of the State makes it the duty of the court "to prepare a syllabus of the points adjudicated in each case," the profession in that State look only to the syllabus to ascertain the points in judgment. When, however, we turn to the opinion of the court, nothing, I submit, is found in it justifying the conclusion this court has reached. Referring to the last clause of section 2 of chapter 127 of the Code, the Supreme Court of Appeals of West Virginia said: "It was not the object of the statute to create any new right, and give an action to the heir, devisee, or representative which he