*659

money represented by the drafts in the treasury to the credit of the payees, affected the character or the locality of the debts. The deposit of the money gave the payees or their representatives no property in or lien upon it. The obligation of the United States was not to surrender to them any specific sums of money, but to pay to them sums equal to the amounts credited to them, as in the case of any other liquidated debt. The creditors could not indeed insist upon payment without first demanding it at the treasury. But the United States, in their sovereign capacity, having no domicile in any one part of the Union rather than in any other, do not, by establishing at the national capital a treasury for the transaction of the principal business of the financial department of the government, and making their money obligations payable there, confine their presence or their powers to this spot. The United States having, in the phrase of Mr. Justice STORY, "an ubiquity throughout the Union," may in their discretion, exercised through the appropriate officers, pay a debt due to the estate of a deceased person, either to the administrator appointed in the state of his domicile or to an ancillary administrator duly appointed in the District of Columbia; and the exercise of their discretion in this regard cannot be controlled by writ of mandamus.

It is hardly necessary to mention the proceedings in equity upon the suit of Keyser. Though referred to in the petition for the writ of mandamus in the general terms stated at the beginning of this opinion, they have not been printed in full in the record, as required by the eighth rule. The reason, doubtless, is that both in the opinion of the court below, and in the argument in this court, while it is said. that the administrator appointed in Tennessee of the estate of John N. Pulliam was made a defendant in that suit, and the bill taken for confessed against him, it is admitted that he was not amenable as administrator to suit in this District, and that neither he, nor any administrator hereafter appointed in Tennessee of the estate of John J. Pulliam, could be concluded by that decree.

The result is that the judgment of the supreme court of the District of Columbia awarding a peremptory writ of mandamus must be reversed, and the case remanded to that court, with directions to dismiss the petition.

VIRGINIA BONDS-COUPONS-ACT OF 1882-JURISDICTION OF FEDERAL COURTS.

Where in an action of trespass against a tax-gatherer in Virginia, for levying upon the plaintiff's property after a tender by him of coupons issued under the statute of 1879, which made them receivable in payment of taxes, the defendant in his rejoinder justifies under the statute of 1882, forbidding collectors to receive such coupons, a demurrer to this rejoinder raises an issue necessarily involving the constitutionality of the statute of 1882, and the federal court has jurisdiction of the case.

In Error to the Circuit Court of the United States for the Eastern District of Virginia.

Wm. L. Royall and Wager Swayne, for plaintiff in error.

F. S. Blair, for defendant. in error.

MATTHEWS, J. A writ of summons was issued out of the circuit court of the city of Richmond by the plaintiff in error, who was plaintiff below, against the defendant, on May 2, 1883, service of which was acknowledged by the defendant on the same day. The writ was returnable on the first Monday in May, which was the seventh day On that day the plaintiff filed his declaration in trespass, vi et armis, for entering upon the premises of the plaintiff, and taking and carrying away his personal property, consisting of one table and one bookcase, with the books therein, of the value of $100, and for remaining on the premises of the plaintiff for a long time, whereby the plaintiff was greatly disturbed and annoyed in the peaceable possession thereof, being his place of business, and hindered and prevented from carrying on and transacting his lawful and necessary affairs and business, and for other wrongs and injuries, laying the damage therefor at $6,000. To this declaration the defendant filed a plea in bar, justifying the alleged trespasses, by setting out that the defendant, as treasurer of the city of Richmond, levied upon the personal property mentioned, in order to sell the same, in satisfaction of certain taxes then due and owing from the plaintiff to the state of Virginia, as by law it was his duty to do. To this plea the plaintiff filed a replication, alleging a previous tender, in payment of said taxes, of coupons cut from bonds issued by the state of Virginia under the authority of an act of the general assembly of that state, approved March 28, 1879, said coupons being by that law receivable in payment of said taxes; which, however, the defendant refused to accept in payment thereof. To this replication the defendant rejoined that, by the act of the general assembly of the state of Virginia of January 26, 1882, he was forbidden to receive the said coupons tendered in payment of said taxes; and to that rejoinder the plaintiff demurred. All these various pleadings, including the declaration, were filed on

the same day, and on that day the p'aintiff also filed his petition praying for the removal of the suit to the circuit court of the United States for the Eastern district of Virginia, on the ground that it arose under the constitution of the United States, which was accordingly done. The cause was docketed in the circuit court, and on September 4, 1883, it was, on motion of the defendant, remanded to the circuit court of the city of Richmond. To reverse the order of the circuit court of the United States remanding the cause to the state court, this writ of error is prosecuted.

The ground on which the order of the court below, remanding the cause, was placed, seems to have been that no federal question, such as is necessary to confer jurisdiction in the case upon the courts of the United States, appears to be necessarily involved in the issue raised by the pleadings. In this we think the court erred. The replication alleges that the coupons tendered contained an express promise, as required by law, of the state of Virginia that they should be received in payment of all taxes due to the state. The rejoinder is that the act of January 26, 1882, subsequently passed, expressly Eforbids the defendant from receiving such coupons in payment of taxes. The demurrer in effect denies the validity of that law, and upon the record no ground of its invalidity can be inferred, except that it is avoided by the operation of that provision of the constitution of the United States which forbids any state from passing laws which impair the obligation of contracts. It therefore sufficiently appears upon the record that the plaintiff's case arises under the constitution of the United States, within the rule as laid down in Bridge Prop'rs v. Hoboken Co. 1 Wall. 116-142.

There is a ground for remanding the cause suggested by the record, but not sufficiently apparent to justify us in resorting to it to support the action of the circuit court. The value of the property taken is stated in the declaration to be but $100, although the damages for the alleged trespass are laid at $6,000. The petition for removal does not allege the sum or value of the matter in dispute otherwise than by the statement of the amount of the claim for damages. We cannot, of course, assume, as a matter of law, that the amount laid, or a less amount, greater than $500, is not recoverable upon the case stated in the declaration, and cannot, therefore, justify the order remanding the cause, on the ground that the matter in dispute does not exceed the sum or value of $500. But if the circuit court had found, as matter of fact, that the amount of damages stated in the declaration was colorable, and had been laid beyond the amount of a reasonable expectation of recovery, for the purpose of creating a case removable under the act of congress, so that, in the words of the fifth section of the act of 1875, it appeared that the suit "did not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court," the order remanding it to the state. court could have been sustained.

The order of the circuit court remanding the cause to the state court is reversed, and the cause is reinstated in that court, with directions to proceed therein in conformity with law. And it is so ordered.

(110 U. S. 76)

Ex parte SCHREIBER and others."

(January 7, 1884.)

PENALTY FOR INFRINGEMENT OF COPYRIGHT-ABATEMENT OF ACTION BY DEATH OF PARTY-SURVIVAL OF CAUSE OF ACTION-STATE LAWS.

An action for the penalty provided by Rev. St. § 4965, for the infringement of a copyright, abates by the death of the defendant.

State statutes allowing suits on state penal statutes to be prosecuted after the death of the offender, can have no effect on suits in the courts of the United States for the recovery of penalties imposed by an act of congress.

Application for a Writ of Mandamus.

A. Sidney Biddle and John K. Valentine, for petitioners. WAITE, C. J. The petitioners sued Charles L. Sharpless in the district court of the United States for the eastern district of Pennsylvania to recover certain penalties and forfeitures claimed under the provisions of section 4965 of the Revised Statutes, for the infringement of a copyright. Sharpless died after issue joined, but before judgment. After his death had been suggested by his attorney in the cause, the petitioners sued out a scire facias against Anna R. Sharpless, executrix, and Charles W. Sharpless, executor, of his will, requiring them to appear and become parties to the action, or show cause why they should not be made parties, by order of the court. Before this writ was served, the attorney for Sharpless during his life moved that the writ be quashed. After argument the motion was granted on the ground that the cause of action terminated with the death of the defendant, and did not survive as against his legal representatives.

The petitioners now ask for a rule on the district court to show cause why a writ of mandamus should not issue requiring it to reinstate the writ of scire facias, and proceed with the case. Without considering whether a writ of mandamus may issue directly from this court to a district court to enforce procedure in a case where the final judgment of the district court is subject to review in the circuit court, we deny the rule asked for, because we are entirely satisfied with the action of the district judge. He was asked to send out a writ of scire facias to bring in and make parties to a qui tam action the personal representatives of a deceased defendant, who had been sued to recover the penalties and forfeitures which it was alleged he had sub

1S. C. 17 Fed. Rep. 589.

'jected himself to under an act of congress by the infringement of a copyright. The suit was not for the damages the plaintiffs had sustained by the infringement, but for penalties and forfeitures recoverable under the act of congress for a violation of the copyright law. 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 was brought, is one that survives by law. Rev. St. § 955. At common law, actions on penal statutes do not survive, (Com. Dig. tit. "Administration, B 15,") and there is no act of congress which establishes any other rule in respect to actions on the penal statutes of the United States. The right to proceed against the representatives of a deceased person depends, not on forms and modes of proceeding in a suit, but on the nature of the cause of action for which the suit is brought. If the cause of action survives, the practice, pleadings, and forms and modes of proceeding in the courts of the state may be resorted to in the courts of the United States for the purpose of keeping the suit alive and bringing in the proper parties. Rev. St. § 914. But if the cause of action dies with the person, the suit abates and cannot be revived. Whether an action survives depends on the substance of the cause of action, not on the forms of proceeding to enforce it. As the nature of penalties and forfeitures imposed by acts of congress cannot be changed by state laws, it follows that state statutes allowing suits on state penal statutes to be prosecuted after the death of the offender, can have no effect on suits in the courts of the United States for the recovery of penalties imposed by an act of congress.

The rule is denied and petition dismissed.

(110 U. S. 51)

UNITED STATES v. CAREY and another.

SAME V. CAREY.

(January 7, 1884.)

PRACTICE-EXCEPTIONS MUST BE TAKEN AT TRIAL.

An exception, to be of any avail, must be taken at the trial. It may be reduced to form and signed afterwards, but the fact that it was seasonably taken must affirmatively appear in the record by a bill of exceptions duly allowed or otherwise.

In Error to the Circuit Court of the United States for the District of Louisiana.

Asst. Atty. Gen. Maury, for plaintiff in error.

J. P. Rouse and Wm. Grant, for defendants in error.