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previously admitted, was withdrawn, and the jury was instructed to disregard it, it was held that an exception to its admission could not be sustained.37

$ 373. Abatement and revivor.- The Revised Statutes provide that when either of the parties to a suit in any court of the United States dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. “The defendant shall answer accordingly, and the court shall hear and determine the cause, and render judgment for or against the executor or administrator as the case may require."? If the survivor wishes to continue the suit, he must serve the executor or administrator with a scire facias, issued from the clerk's office where the case is pending; and if such personal representative fails to become a party to the suit within twenty days from the service of such writ, the court may render judgment against the estate of the deceased party in the same manner as if the executor or administrator had voluntarily made himself a party.' The execntor or administrator who thus becomes a party is entitled, upon motion, to a continuance till the next term of the court. The Revised Statutes further provide that if there are two or more plaintiffs or defendants in a suit, where the cause of action survives to the surviving plaintiff or against the surviving defendant, and one or more of them dies, the suit and action do not thereby abate; but such death must be suggested in the record, and the action thereupon proceed at the suit of the surviving plaintiff against the surviving defendant.The practice under, and the construction of, the statutes are not clear; but the following points seem settled. The latter statute applies to writs of error and appeals.? These statutes do not apply to real actions. Real actions cannot be revived, unless the State stat

37 Pennsylv nia Co. v. Roy, 102 U.S. 8 & 9 W. III., ch, 1, 87. See Allen v. 451.

Fairbanks, 40 Fed. R. 188. $ 373. 10. S. R. S., & 955.

6 McKinney v. Carroll, 12 Pet. 66; 2 U. S. R. S., & 955. See Allen v. Classe v. Rippon, 1 B. & Ald. 586. Fairbanks, 40 Fed. R. 188.

7 Moses v. Wooster, 115 U. S. 285. 3U. S. R. S., $ 955.

8 Macker v. Thomas, 7 Wheat. 530; 4 U. S. R. S., § 955. See supra, Green v. Watkins, 6 Wheat. 260. $3686.

9 Macker v. Thomas, 7 Wheat. 530; 50. S. R. S., $ 956. This statute is Green v. Watkins, 6 Wheat. 260. substantially a copy of the act of

ute so provides.10 The statutes regulate the manner of revivor, and the practice which they prescribe must be followed in all cases in the Federal courts, whether arising under Federal statutes or State laws or the common law."

The survivability of a cause of action, if it be one arising under the statute or common law of the State where the case is pending, depends on the laws of that State. The time within which an action to enforce a cause of action not founded upon a statute of the United States may be revived, depends upon the State practice 13 or the State Statute of Limitations; 14 which, however, do not affect the United States. 15 The State Statute of Limitations has been held a bar to an application to revive an action by a receiver of a national banking association to collect an assessment from a stockholder.16 If the cause of action be one created by a Federal statute, its survival or abatement is not affected by State statutes or decisions. 17 Thus, a qui tam action to recover a penalty under a statute of the United States abates by the death of the defendant, although the statutes of the State where the case is pending authorize the revivor of actions to recover penalties.18 An action to enforce a forfeiture abates unless the acts complained

10 McArthur v. Williamson, 45 Fed. A.), 74 Fed. R.425. A State statute was R. 154.

followed which permitted an admin11 In re Connaway, 178 U. S. 421. istrator duly appointed and qualified

12 Warren v. Furstenheim, 35 Fed. to be substituted as plaintiff in a suit R. 691; Witters v. Foster, 26 Fed. R. brought by a person claiming to be 737; Henshaw v. Miller, 17 How. 212; the personal representative of the Hatfield v. Bushnell, 1 Blatchf. 393; same decedent who had never qualiTrigg v. Conway, Hempst. 711. A fied as such. Person v. Fidelity & State statute which allows an exec- Cas. Co. (C. C. A.), 92 Fed. R. 965. utor or administrator to revive an 13 Goodyear D. V. Co. v. White, 46 action for personal injuries will be Fed. R. 278. followed, as the law of the forum, 14 Browne v. Chavez, 181 U. S. 68; by the Federal courts there held, al- Butler v. Poole, 44 Fed. R. 586; Barthough there was no such statute ker v. Ladd, 3 Saw. 44; Price v. where the accident occurred. Balti. Yates, 19 Alb. L. J. 295; Goodyear D. more & O. R. Co. v. Joy, 173 U. S. V. Co. v. White, 46 Fed. R. 278. 226. A State statute which provided 15 U. S. v. Houston, 48 Fed. R. 207. that a suit against a corporation shall 16 Butler v. Poole, 44 Fed. R. 586. not abate upon the dissolution of the 17 Schreiber v. Sharpless, 110 U. S. defendant was held not to apply to a 76; May v. Logan County, 30 Fed. R. foreign corporation; and a judgment 250. of the State court in such a case was 18 Schreiber v. Sharpless, 110 U. S. held by the Federal court to be void. 76. Marion Phosphate Co. v. Perry (C. C.

of were divisible and the wrongdoer's estate has derived a benefit therefrom.' An action for the infringement of a patent survives to the representatives of the patentee,20 and against the representatives of the infringer.21 Where one of several joint defendants to a decree for damages and an injunction against the infringement of a patent dies after an appeal, the suit may be revived in the appellate court at the suit of the survivors, upon notice to the personal representatives of the decedent under Supreme Court Rule 15, without bringing them in as parties. If in such a case the personal representatives of the deceased appellant voluntarily come in and ask to be made parties, they may be admitted.23 Where the presence of the personal representatives of a deceased appellant will be required for the due prosecution of an appeal by his snrvivors, the appellate court may order that the appeal be dismissed unless properly revived within a limited time.24 Where a defendant dies after judgment, an execution issued before the judgment is revived is of no effect and all proceedings thereunder are void; unless, perhaps, when the writ was tested before the death occurred; 25 but the death of a judgment debtor does not affect the validity of a sheriff's deed subsequently executed, but previously ordered.26 Where a judgment for a personal injury had been erroneously set aside, the appellate court ordered judgment in favor of the original plaintiff nunc pro tunc as of a date before his death. An order denying a motion to dismiss an action upon the ground that it had abated by the death of the plaintiff is reviewable on a writ of error to the final judgment.28

19 U. 8. v. De Goer, 38 Fed. R. 80; 24 Blake v. Bogle, Macq. Pr. of H. U. S. v. Riley, 104 Fed. R. 275. of L., 244, note; Moses v. Wooster, 115

20 May v. Logan County, 30 Fed. R. U. S. 285, 288. 250; Illinois Cent. R. Co. v. Turrill, 25 Ransom v. Williams, 2 Wall. 313. 110 U. S. 301. See supra, SS 174-176. 26 Insley v. U. S., 150 U. S. 512.

21 Ibid.; Head v. Porter, 70 Fed. R. 27 Coughlan v. District of Colum. 498; Hohorst v. Howard, 37 Fed. R. bia, 106 U. S. 7. But see Martin's 97; Moses v. Wooster, 115 U. S. 285. Adm'r v. Baltimore & O. R. Co., 151

22 Moses v. Wooster, 115 U. S. 285, U. S. 673. 287.

28 Henderson v. Henshall (C. C. A.), 23 Thorpe v. Mathington, 1 Phill. 54 Fed. R. 320. Ch. 200; Moses v. Wooster, 115 U. S. 285, 288.

$ 374. Trials.— The Revised Statutes provide that the trial of issues of fact in actions at common law in the Circuit and District Courts shall be by jury.

There is but one exception to this, namely, whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury. Then, the issues of fact may be tried and determined by a Circuit Court without the intervention of a jury; and the rulings of the court on the trial, if excepted to at the time and included in the bill of exceptions, may be reviewed in the Supreme Court upon a writ of error or appeal; and when the findings are special, the review may extend to the determination of the sufficiency of the facts found to support the judgment.”

The court's findings may be general or special, and have the same effect as the verdict of a jury. It seems that findings may be filed by an order of the judge who tried the case, nunc pro tunc, at a term subsequent to the entry of judgment on his decision. If the stipulation is not in writing the judgment will be valid;? but the appellate court cannot reverse the same for any error in the admission or exclusion of evidence, or because the evidence was insufficient to warrant the finding of the judge, or upon any other question of law growing out of the evidence. The most appropriate proof of a compliance

$ 374. 1 U. S. R. S., SS 566, 648. 117. But see Hickman v. Fort Scott, 2 U.S. R. S., SS 649, 700.

141 U. S. 415. In Lang v. Baxter, 69 3 U.S. R. S., SS 649, 700. See Marion Fed. R. 905, it was held that addi. Phosphate Co. v. Cummer, 60 Fed. R. tional findings could not be made at 873.

a subsequent term. The stipulation 4 U. S. R. S., & 649; Norris v. Jack- waives an objection that the suit son, 9 Wall. 125; Mining Co. v. Tay- should have been brought in equity lor, 100 U. S. 37. A statement of and not at law, or vice versa, Burfacts in an opinion is not a finding. ton v. Platter (C. C. A.), 53 Fed. R. Consol. Coal Co. v. Polar W. Ice Co. 901; and any other defect in the form (C. C. A.), 106 Fed. R. 798; Lehman of the action. Fisher v. Knight (C. v. Dickson, 148 U. S. 71. Even if it C. A.), 61 Fed. R. 491. is referred to in the judgment. Ken- 7 Campbell v. Boyreau, 21 How. tucky L. M. Co. v. Hamilton, 63 Fed. 223; Bond v. Dustin, 112 U. S. 604, 606. R. 93. Nor is a statement of facts in Campbell v. Boyreau, 21 How. a bill of exceptions a finding. Ibid. ; 223; Bond v. Dustin, 112 U. S. 604; Lehman v. Dickson, 148 U. S. 71. Spalding v. Manasse, 131 U. S. 65;

5 Norris v. Jackson, 9 Wall. 125; Andes v. Slauson, 130 U. S. 435. A U.S. v. Dawson, 101 U. S. 569; O'Reily stipulation that the case be marked v. Campbell, 116 U. S. 418.

“jury waived tentatively ” was held 6 Insurance Co. v. Boon, 95 U. S. not to be in compliance with the stat

8

with the statute is the inclusion of the stipulation in the judgment roll. A statement in the finding of facts, the record of the judgment entry, or the bill of exceptions that such a stipulation was made in writing, will be sufficient proof of a compliance with the statute.10 It seems that when the court has authority to refer a case, upon consent in writing only, an order that the case be referred, which expressly states that it is made“ by consent of the parties,” necessarily implies that such consent was in writing. 11

It has been said that the court cannot examine the evidence to see whether a finding of fact is justified; 12 but if the uncontradicted evidence entitles a party to a judgment in his favor and he duly requests a ruling and finding to that effect, and excepts to the refusal of the court, the judgment will be reversed even if no special findings were made.13 Where there is a special finding of fact sufficient to support the judg

ute. Merrill v. Floyd (C. C. A.), 53 604, 607. A statement in a bill of exFed. R. 172. A stipulation, which ceptions "that the cause came on for reserves the right to go to the jury hearing, and a jury having been imin case of a certain ruling which was paneled and sworn, and the intronot made, is insufficient. Smith v. duction of evidence having been Weeks (C. C. A.), 53 Fed. R. 758. A commenced, by stipulation of parties stipulation cannot be amended nunc hereto duly entered, the jury was pro tunc. Ibid. For a form which withdrawn, trial to jury waived," was held sufficient, see Citizens' Bank was held to be insufficient to show v. Farwell (C. C. A.), 56 Fed. R. 570. that written stipulation was filed. For a case where the findings were Cudahy P. Co. v. Sioux Nat. Bank held to be insufficient to support (C. C. A.), 69 Fed. R. 182. the judgment, see Saltonstall v. Birt- 11 Bond v. Dustin, 112 U. S. 604, 607; well, 150 U. S. 417. It has been held Boogher v. Insurance Co., 103 U. S. 90. that there can be no receiver even in 12 Reed v. Stopp (C. C. A.), 52 Fed. such a case, unless an objection and R. 641, 644; Tyng v. Grinnell, 92 U. S. exception were duly taken in the 467; Dooley v. Pease, 180 U. S. 126; court below. Press v. Davis (C. C. A.), Syracuse Tp. v. Rollins (C. C. A.), 104 54 Fed. R. 267. Where the court Fed. R. 958. overruled demurrers to several pleas 13 St. Louis v. Western U. Tel. Co., and there were no findings, it was 148 U. S. 92. It seems that such a beld that there must be a reversal if request may be too late if not made any one of the pleas was bad. Mil. until after the judge had announced ler v. Houston City Ry. Co. (C. C. A.), his decision. Merrill v. Floyd (C. C. 55 Fed. R. 366.

A.), 50 Fed. R. 849, 850, per Gray, J. 9 Bond v. Dustin, 112 U. S. 604, 607. It has been held that there can be

10 Kearney v. Case, 12 Wall. 275, no reversal for a refusal to make a 284; Dickinson v. Planters' Bank, 16 special finding. Insurance Co. v. Fol. Wall, 250; Bond v. Dustin, 112 U. S. som, 18 Wall. 237.

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