Harlan, J., Dissenting.

had not at common law." No one supposes that that clause gives a personal representative the right of action to sue for personal injuries to the decedent. The personal representative can bring an original action only where death is caused by the wrongful act or default of the defendant. He does not bring an action where one, rightfully brought by the decedent, is revived in his name as personal representative. But the Supreme Court of Appeals of West Virginia proceeds: “But where the representative, heir, etc., had a right, by suit, to accomplish the same object substantially as the ancestor had in view in bringing the suit, that for convenience it should not abate on the ancestor's death, but might be revived." Even this principle, the statement of which was not at all necessary to the decision, is sufficient to embrace the present case; for, as the suit of Martin was to recover compensation for the injuries he received, a revivor of it, in the name of his personal representative, and its prosecution to judgment and execution, would accomplish substantially the same object the decedent had in view, namely, to compel the railroad company to pay for the injury inflicted upon him as the result of its negli gence.

Another case referred to in support of the contention that the action abated by the death of the plaintiff is Curry v. Mannington, 23 W. Va. 14, 18. But that case did not involve any question in reference to the revivor of an action for personal injuries received by the plaintiff. It was a suit against a municipal corporation for injuries, alleged to have been received through the neglect of the defendant to keep its streets and walks in repair. It is true that the court, in that case, said: "In the cases, however, of injuries to the person and not to the property or estate of the decedent, whether by assault, battery, false imprisonment, slander, negligence, or otherwise, if either the party who received or he who committed the injury die, the maxim applies rigidly, and no action can be supported either by or against his representative. 3 Bl. Com. 302. In this State the only exception to this rule, so far as I have been able to discover, is the provision of our statute, embracing what is known as Lord Campbell's Act,

Harlan, J., Dissenting.

giving a right of action to the representative against any party wrongfully causing the death of his decedent. §§ 5 and 6, c. 103, Code, p. 545." But it is plain from the context that this language had reference to the meaning of a particular statute of limitations of personal actions, that used the words "if they be for matters of a nature that in case of the death of the party, they could not be brought by or against his representative." In effect, the court was considering the question as to whether a personal representative could bring an original action for personal injury received by his decedent. That is an entirely different question from the one here presented, which is, whether an action for the recovery of money duly brought by the person injured could, upon his death, be revived in the name of his personal representative, and be prosecuted by the latter to judgment and execution. There is not a hint, much less a distinct statement, either in the syllabus or in the opinion in Curry v. Mannington, in respect to any such question.

Suppose Martin had obtained a judgment for ten thousand dollars in damages and had died after the case was brought here by the railroad company. Could it not have been revived in this court against his personal representative? And if this court had reversed such a judgment and remanded the cause for a new trial, could the railroad company have prevented another trial in the court below by the suggestion of record that, pending the writ of error in this court, the plaintiff had died? In my opinion, this question should be answered in the negative, if any effect whatever be given to the local statute. A different rule should not be applied when the case is here upon writ of error sued by the plaintiff.

Reference has been made to the case of Flinn v. Perkins, 32 Law Journal, (N. S.) Q. B. 10, 11; S. C. 8 Jurist, (N. S.) 1177. That was an action to recover damages for a personal injury. The plaintiff died before verdict, and the effort was to have it revived in the name of the personal representative. It was held that the Common Law Procedure Act did not permit the revivor under such circumstances. But that case differs from this in two important particulars: 1, there was

Harlan, J., Dissenting.

a verdict and judgment in this case before the plaintiff died; 2, there was no provision in the English statute, as there is in the West Virginia Code, giving the right of revivor, where the plaintiff or defendant dies pending the action, "whether the cause of action would survive at common law or not.”

But if I am wrong in my interpretation of the Code of West Virginia, there is still another view of this question which, in my judgment, is important. Martin's death occurred after the assignment of errors was filed and made part of the record. In Tidd's Practice, 1163, it is said: "A writ of error may abate by the act of God, the act of law, or the act of the party. If the plaintiff in error die before errors assigned, the writ abates, and the defendant in error may thereupon sue out a scire facias quare executionem non to recover the judgment against the executors or administrators of the plaintiff in error. But if the plaintiff in error die after errors assigned, it does not abate the writ. In such case the defendant, having joined in error, may proceed to get the judgment affirmed, if not erroneous, but must then revive it against the executors or administrators of the plaintiff in error." And so it was adjudged by this court in Green v. Watkins, 6 Wheat. 260, 262, in which Mr. Justice Story, speaking for the court, and after referring to the rules that controlled the question of abatement, whether in real or personal actions, where the party died before judgment, said: "But in cases of writs of error upon judgments already rendered a different rule prevails. In personal actions, if the plaintiff in error dies before assignment of error, it is said that by the course of proceedings at common law the writ abates; but if after assignment of errors, it is otherwise." These authorities, I submit, indicate that the writ of error should not be dismissed after there has been an assignment of errors.

Being of opinion that the action has not abated by the death of the plaintiff, I am unable to concur in the opinion and judgment of the court.

INDEX.

ABATEMENT.

See ACTION, 1, 2, 3.

ACCORD AND SATISFACTION.

See VERDICT, 1.

ACTION.

1. The question, whether a cause of action survives to the personal repre-
sentative of a deceased person, is a question, not of procedure, but of
right; and, when the cause of action does not arise under a law of the
United States, depends upon the law of the State in which the suit is
brought. Martin v. Baltimore & Ohio Railroad Co., 673.

2. By the law of West Virginia, an action for a personal injury abates by
the death of the person injured. Ib.

3. If, after verdict and judgment for the defendant in the Circuit Court of
the United States in an action the cause of which does not survive by
law, and pending a writ of error in this court upon the plaintiff's ex-
ceptions to the rulings and instructions at the trial, the plaintiff dies,
the action abates and the writ of error must be dismissed. Ib.

See CONTRACT, 3;

REMOVAL OF CAUSES, 1.

ALIEN.

See JURISDICTION, D, 4.

APPEAL.

If land is conveyed to a trustee, to hold for the benefit of a married woman
for life, and then to convey to an infant in fee; and upon a bill in
equity by the tenant for life against the remainderman and the trustee,
and after the appointment of a guardian ad litem for the remainder-
man, part of the land is sold for the payment of repairs and taxes, and
partition is decreed of the rest in equal moieties in fee between the
tenant for life and the remainderman, and part of the land set off to
the tenant for life is sold by her; and, by decree upon a bill by the
remainderman, after coming of age, against the heirs of the trustee

711

and of the tenant for life and the purchasers, the proceedings in and
under the partition suit are set aside, and a new trustee appointed to
convey the whole land to the remainderman; the heirs of the original
trustee cannot appeal from this decree without joining the other
defendants, on a summons and severance, or some equivalent proceed-
ing, recorded in the court rendering the decree. Inglehart v. Stans-
bury, 68.

ATTORNEY AT LAW.

1. The attorneys of record on both sides, in a suit in equity to enforce a
lien on real estate in which a decree for sale had been entered and an
appeal taken without a supersedeas, made and signed a written agree-
ment that the property might be sold under the decree pending the
appeal, and that the money might be paid into court in place of the
property, to abide the decision on the appeal. The property was sold
under the decree, and the money was paid into court. Held, that the
agreement was one which the attorneys had power to make in the
exercise of their general authority, and as incidental to the manage-
ment of the interests entrusted to them, and that the principals should
not be permitted to disregard it to the injury of one who purchased,
in good faith, at a judicial sale. Halliday v. Stuart, 229.

BALTIMORE AND OHIO RAILROAD COMPANY.
See CORPORATION, 7.

BANKRUPT.

Assignees in bankruptcy, although not in possession of the bankrupt's
property, are nevertheless required to look out for the interests of all,
and are entitled to compensation, the lack of possession being impor-
tant only in determining the amount of the compensation. Meddaugh
v. Wilson, 333.
See TRUST, 2.

CASES AFFIRMED OR FOLLOWED.

1. United States v. Alger, 151 U. S. 362, followed. United States v. Stahl
366.

2. The principles which, in Pennsylvania College Cases, 13 Wall. 190, sus-
tained the validity of the legislation in question there, lead here to the
affirmance of the decree below. Bryan v. Board of Education &c., 639.
See CRIMINAL LAW, 8, 13;

JURISDICTION, B, 10, 11; D, 6.

CASES DISTINGUISHED.

See JURISDICTION, D, 5.