Opinion of the Court.

both in common law and equity, and to obtain the good in both by a simpler practice.

In Gordon v. Tyler, 53 Mich. 629, 631, the original defendants not having been served before their deaths, the court said, in passing on a motion to set aside the service and dismiss the bill: "The basis of this objection is that until a defendant has appeared the suit cannot be treated as having actually been commenced against him; so that if he dies before appearance it is as if he had never been in the case, and an original bill is necessary to reach his representatives. The citation from Daniells' Chancery Practice seems to favor that idea. But the authorities and practice have uniformly held that the filing of a bill is the commencement of suit for most purposes, and we can see no reason for adopting any exceptional rule in such cases as the present. An affidavit can always be made in a cause as soon as the bill is filed, and sometimes becomes necessary to support an order for the appearance of an absentee. A notice of lis pendens may always be filed at once, and it would lead to very serious mischief if a failure to serve process at once on a defendant could nullify the effect of such filing. For many purposes it is not always important whether a bill is a bill of revivor or an original bill in the nature of one. But for some purposes the difference is very material, and rights may be seriously jeopardized by holding a failure to get a defendant in before his death equivalent to a failure to implead him. The evident object of our statute is to hasten the proceedings by allowing a petition to stand in lieu of a bill of revivor, and we do not see any good reason for holding that a suit, if regarded as commenced for any substantial purpose, should not be regarded as commenced, so as to save all rights as against the estates of a deceased defendant, appearing or not appearing. No one's rights are injured by so holding, and important rights may be jeopardized by holding otherwise."

This ruling was reaffirmed in Stevenson v. Krutz, 57 N. W. Rep. 580.

In Maine, an executor of the deceased defendant may be brought in by bill of revival. In declaring the practice the court said, in Hubbard v. Johnson, 77 Maine, 139: "The general

Opinion of the Court.

rule in equity is that, strictly speaking, there is no cause in court as against a defendant until his appearance. 2 Dan. Ch. (5th ed.) 1523. But in this State, since a bill may be inserted in a writ of attachment, (Rev. Stat. c. 77, sec. 11,) as this was, and a suit is commenced when the writ is actually made with intention of service, (Rev. Stat. c. 81, sec. 95,) an executor may be brought in by a revivor, although no service has been made on the testator. Heard v. March, 12 Cush. 580."

The same ruling was made in Massachusetts in Heard v. March, and while there was no opinion of the court, from the argument of counsel the ruling was apparently based on the same grounds as in Hubbard v. Johnson, supra, to wit, that an action was commenced on the day of the date of the writ, that being the process in chancery.

It was said in Lyle v. Bradford, 7 T. B. Monroe, 111, 116: "That the suing out process has at all times been held the commencement of an action or suit, and that as to the person against whom process has been issued there must necessarily be a pending suit from the date of the process, so as to abate and require a revival upon his death."

There is nothing in Lewis v. Outlaw, 1 Tenn. (1 Overton) 140, which opposes these views. Indeed, it affirms them. The court said: "Agreeably to the practice in the courts of law in England, all suits abated by the death of either party; nor could they be revived by scire facias." The court then proceeded to say that the practice of chancery in England was upon the death of either plaintiff or defendant to file a bill of revivor against the representatives of the deceased, and applying this practice to Kentucky under a statute which provided no abatement should occur by the death of either the plaintiff or defendant but might be "proceeded upon by application of the heirs, executors, administrators or assigns of either party," said: "It seems clear that all revivals, to comport with the principles of reason and the English practice, should be made by causing appropriate process to issue so as to make the representatives of the deceased parties in a legal manner. To revive a dormant judgment a scire facias is necessary. To revive in chancery the authorities show that a bill must be filed, and process issued thereon, to VOL. CLXXVIII-28

Opinion of the Court.

which the representatives may make such answer as the nature of the case may require."

Hyde v. Leavitt, Administrator of Griffin, 2 Tyler, 170, cited by respondent's counsel, must be considered as peculiar to the practice in Vermont.

The statute of the State was very similar to section 955 of the Revised Statutes of the United States, (supra,) and it was held, reversing the lower court, that notwithstanding Griffin, the deceased, had been personally served with the writ, as it was made returnable June term, 1801, and as Griffin died before session day, his administrator could not be made a party under the statute. The ground of the decision seemed to be that the suit could not be considered as pending until it was entered in court. The contrary was held in Clindenin v. Allen, 4 N. H. 385. The same contention was made which was made in Hyde v. Leavitt. The court decided that, "as the term 'pending' means nothing more than remaining undecided,' an action may, without doubt, be considered as pending from the commencement." And we may say that Hyde v. Leavitt did not long remain law in Vermont. At their October sessions, 1804, the General Assembly amended the statute to make the commencement of the suit, in case of the death of either party, the same as to rights for and against executors as existed in

suit which was "pending," using this word, no doubt, to meet the ruling of the court.

However, the discussion to the extent we have carried it may not be necessary. Section 955, Rev. Stat., determines when the representative of a deceased party may be brought into an action, and that scire facias is the procedure whereby he may be brought in. And it is not confined to a case where a judgment has been obtained. It is a process of notice to the executor or administrator to come in, and if he should not come in, gives jurisdiction to the court to "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." This is the language of the section. If doubt there can be of its construction, it is removed by the case of Green v. Watkins, 6 Wheaton, 260, and Macker's Heirs v. Thomas, 7 Wheaton, 530.

Opinion of the Court.

In Green v. Watkins, the court, passing on section 31 of the Judiciary Act of 1789, of which sections 955 and 956, Rev. Stat., are reproductions, pointed out the distinction between the death of parties before judgment and after judgment, and said: "In the former case all personal actions by the common law abate; and it required the aid of some statute like that of the thirtyfirst section of the Judiciary Act of 1789, c. 20, to enable the action to be prosecuted by or against the personal representative of the deceased, when the cause of action survived."

The enactment of the section was to provide against the abatement of actions which would otherwise abate at common law, and we cannot confine its remedy to the cases where death occurs after judgment. In other words, confine its remedy to the cases where the common law already afforded a remedy. See also McCoul v. Lekamp, 2 Wheat. 111, and Hyde v. Leavitt,

supra.

Except when considering the objection made here to the remedy by mandamus, we have treated the case as if O. P. Overton, the deceased party, was the sole defendant, and that the action necessarily abated unless there was a saving statute. But he was not the sole defendant, and the action did not abate at common law if the cause of action survived against the other defendant. We assume (the record does not enable us to determine absolutely) that it did, and the reason for bringing in the representatives of the deceased defendant is the stronger.

We think, therefore, that the Circuit Court erred in setting aside the scire facias and the rule for mandamus is made absolute.

Opinion of the Court.

SMITH v. REEVES.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 242. Argued April 16, 1900.-Decided May 14, 1900.

Within the meaning of the constitutional provisions relating to actions instituted by private persons against a State, this suit, though in form against an officer of the State of California, is in fact against the State itself.

By § 3669 of the Political Code of California, which provides that any person dissatisfied with the assessment made upon him by the State Board of Equalization, may, after payment and on the conditions named in the act, bring an action against the State Treasurer for the recovery of the amount of taxes and percentage so paid to the Treasurer, or any part thereof, the State has not consented to be sued except in its own courts. It was competent for the State to couple with its consent to be sued on account of taxes alleged to have been exacted under illegal assessments made by the state board, the condition that the suit be brought in one of its own courts.

A suit brought against a State by one of its citizens is excluded from the judicial power of the United States, even when it is one arising under the Constitution and laws of the United States, and the same rule applies to suits of a like character brought by Federal corporations against a State without its consent.

THE case is stated in the opinion.

Mr. C. N. Sterry for plaintiff in error.

Mr. Tirey L. Ford and Mr. William M. Abbott for defendant in error. Mr. George A. Sturtevant was on their brief.

MR. JUSTICE HARLAN delivered the opinion of the court.

THIS action was brought in the Circuit Court of the United States for the Northern District of California by the Receivers of the Atlantic and Pacific Railroad Company, a corporation created under an act of Congress approved July 27, 1866,