In real or personal actions at common law, the death of parties
before judgment abates the suit, and it requires the aid of some
statutory provision, like that of the thirty-first section of the
Judiciary Act of 1789, ch. 20, to enable the suit to be prosecuted
by or against the personal representative or heir of the deceased,
where the cause of action survives.
In writs of error upon judgments already rendered in personal
actions if the plaintiff in error dies before assignment of errors,
the writ abates at common law, but if after assignment of errors
the defendant may join in error, and proceed to get the judgment
affirmed, if not erroneous, and may then revive it against the
representative, of the plaintiff.
But a writ of error in personal actions does not abate by the
death of the defendant in error, whether it happen before or after
errors assigned, and the personal representatives may not only be
admitted voluntarily to become parties, but
scire facias
may issue to compel them.
By the rules of this Court, if either party in real or personal
actions dies pending the writ of error, his representatives in the
personalty or realty may voluntarily become parties, or may be
compelled to become parties, in the manner prescribed by the
rule.
Page 19 U. S. 261
MR. JUSTICE STORY delivered the opinion of the Court.
The preliminary question which has been argued at the bar is
whether the writ of error in this case,
Page 19 U. S. 262
which is a writ of right, has abated by the death of the
demandant, who is the plaintiff in error, pending the proceedings
in this Court. There is a material distinction between the death of
parties before judgment and after judgment and while a writ of
error is depending. In the former case, all personal actions by the
common law abate, and it required the aid of some statute, like
that of the thirty-first section of the Judiciary Act of 1789, ch.
20, to enable the action to be prosecuted by or against the
personal representative of the deceased, when the cause of action
survived. In real actions, the like principle prevails, for a still
stronger reason, for, by the death of either party, the right
descends to the heir, and a new cause of action springs up, and the
plea is not, therefore, in the same condition as it was in the
lifetime of the party.
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. In this latter case, the
defendant may join in error, and proceed to get the judgment
affirmed, if not erroneous, and he may then revive it against the
representatives of the plaintiff. But in no case does a writ of
error in personal actions abate by the death of the defendant in
error, whether it happen before or after errors assigned. If it
happen before, and the plaintiff will not assign errors, the
representatives of the defendant may have a
scire facias quare
executio non in order to compel
Page 19 U. S. 263
him; if it happen after, they must proceed as if the defendants
were living, till judgment be affirmed, and then revive by
scire facias. And the plaintiff, in order to compel the
representatives of the defendant in error to join in error, may sue
out a
scire facias ad audiendum errores, either generally
or naming them. Such is the doctrine of approved authorities. 2
Tidd's Pr., ch. 43, Error, p. 1096. It is clear, therefore, that at
common law, in these cases, a writ of error does not necessarily
abate, and that the personal representatives may not only be
admitted voluntarily to become parties, but a
scire facias
may issue to require them to become parties. And such has been the
practice hitherto adopted in this Court in all personal actions,
whether there has been an assignment of errors or not, for a
specific assignment of errors has never been insisted on here, as a
preliminary to the argument, or decision of the cause.
In respect to real actions, this is the first time the question
has presented itself upon a writ of error, where the death of
either party has occurred
pendente lite. There is no doubt
that the heir or privy in estate who is injured by an erroneous
judgment may prosecute a writ of error to reverse it. And there
seems no good reason why, in case of the death of his ancestor
pending proceedings, he may not be admitted to become a party or be
cited to become a party to pursue or defend the writ in the same
manner as in personal actions. The death of neither party produces
any change in the condition
Page 19 U. S. 264
of the cause or in the rights of the parties. It would seem
reasonable, therefore, that the suit should proceed, and not be
dismissed or abated. In the absence of all authority which binds
the court to a different course, we are disposed to adopt this
doctrine, and shall promulgate a general rule on the subject.
Rule accordingly