Argument for Petitioners.

defend any such suit to final judgment." This statute provides that all actions survive, after the death of a party, where "the cause of action survives by law." What law? There is no other federal law on the subject, this being the only statute dealing with the question of abatement by death, and no common law governing federal questions exists. Nor was it intended by Congress to incorporate the law of England as to abatement existing at the time of the passage of the Judiciary Act; for, if this were so, nearly all actions would at this day abate by the death of a party, if brought in a federal court. The only other law, therefore, which can be referred to in the phrase "survives by law" must be the law of the State in which the action is brought, and this natural construction has been repeatedly adopted in the decisions. See Hatfield v. Bushnell, 1 Blatchford, 393; Barker v. Ladd, 3 Sawyer, 44; Trigg v. Conway, Hempst., 711; Hodge v. Railroad, 1 Dillon, 104.-III. Even should it be held that the question under consideration is not one of procedure at all, but goes to the root of the action, then § 34 of the Judiciary Act of 1789, Rev. Stat. § 721, applies and the action survived against the executors of the defendant. That section reads as follows: "The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." This section has been held not to apply to cases of procedure. Assuming that the abatement and survival of an action is not a question of practice or procedure, then by the terms of this section, the State laws regulating such matters must be "rules of decision" in cases where they apply. See United States v. Mundell, 1 Hughes, 415; McCluny v. Silliman, 3 Pet. 270; Leffingwell v. Warren, 2 Black, 599; Parker v. Hawk, 2 Fisher's Pat. Cas. 58; Rich v. Ricketts, 7 Blatchford, 230; Howes v. Nute, 4 Fisher's Pat. Cas. 263; Sayles v. Oregon Central Railroad, 6 Sawyer, 311; Hayden v. Oriental Mills, 15 Fed. Rep. 605.-IV. Mandamus is the proper remedy in a case like this. Ex parte Bradstreet, 7 Pet. 634; Stafford v. Union Bank of Louisiana, 17 How. 275. Without it the

Opinion of the Court.

plaintiffs have no remedy. § 1011 Rev. Stat.; Toland v. Sprague, 12 Pet. 300; High on Extraordinary Remedies, § 151; Regina v. Kesteven, 3 Ad. & El. 810; Ex parte Shollenberger, 96 U. S. 369; Ex parte Bradstreet, 7 Pet. 634; Insurance Company v. Wilson, 8 Pet. 291; Ex parte Russell, 13 Wall. 664; Insurance Company v. Comstock, 16 Wall. 258; Railroad Company v. Wiswall, 23 Wall. 507.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. 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 sec. 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 subjected himself to, under an act of Congress, by the infringe

Opinion of the Court.

ment 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. Stat. § 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. Stat. §. 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.

Syllabus.

CLAFLIN & Others v. COMMONWEALTH INSURANCE COMPANY.

SAME v. WESTERN ASSURANCE COMPANY.

SAME v. FRANKLIN INSURANCE COMPANY.

ALL: IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.

Argued and submitted October 16th, December 17th, 1883.-Decided January 14th, 1884.

Evidence-Insurance-Jurisdiction-Parties-Removal of Causes-Statutes. 1. It appearing on examination of the record after argument that the jurisdiction of the court over the cause is in doubt, the court of its own motion took notice of the question and ordered it argued.

2. § 1, ch. 137, act of March 3d, 1875, 18 Stat. 470, confers upon Circuit Courts of the United States original jurisdiction in controversies between citizens of different States, or citizens of a State and foreign States, citizens or subjects, where the matter in dispute exceeds, exclusive of costs, the sum of $500, and further provides as follows: "Nor shall any Circuit or District Court have cognizance of any suit founded on con. tract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes, negotiable by the law merchant, and bills of exchange.' § 2 of that act authorizes the removal of similar causes as to parties and amounts from State courts to Circuit Courts of the United States, but without imposing the restriction as to assignees and assignments. Held, That the restriction upon the commencement of suits contained in § 1 does not apply to the removal of suits under § 2.

3. When this court has given a construction to relative provisions in different parts of a statute, and Congress then makes a new enactment respecting the same subject-matter, with provisions in different sections bearing like relations to each other, and without indicating a purpose to vary from that construction, the court is bound to construe the two provisions in the different sections of the new statute in the same sense which, in previous statutes, had uniformly been given to them, and not invent a new application and relation of the two clauses.

4. A policy of insurance against loss by fire contained a clause to the effect that in case of loss the assured should submit to an examination under oath by the agent of the insurer, and that fraud or false swearing should forfeit the policy. The assured, after loss, submitted to such examination, and made false answers under oath respecting the purchase and payment of the goods assured. Although it appeared that the stateVOL. CX-6

Statement of Facts.

ments were not made for the purpose of deceiving the insurer, but for the purpose of covering up some false statements previously made to other parties: Held, That the motive which prompted them was immaterial, since the questions related to the ownership and value of the goods, and were material, and that the attempted fraud was a breach of the condition of the policy and a bar to recovery.

Suits on three policies of insurance made by the several defendants in favor of one Frances E. Barritt on a stock of goods, and by her assigned to one Murphy with consent of defendants after an alleged sale of the goods to him. After loss Murphy assigned to the plaintiffs. The answers set up fraud in procuring insurance on the goods in excess of their value, and in false representations as to their ownership; denied the injury to the amount claimed; set forth that the respective policies required the assured, in case of loss, to submit to examination under oath, and that fraud or attempt at fraud by false statements in such examination should cause a forfeiture of all claims under the policy; and averred that Murphy had been guilty of making such false statements, and that the claims under the policies respectively were forfeited. The plaintiffs were citizens of New York. One of the defendants was a corporation created under the laws of Massachusetts; one a corporation created under the laws of the Dominion of Canada, and one a corporation created under the laws of Missouri.

The suits were begun in a State court of Minnesota, and were removed thence on motion of the defendants to the Circuit Court of the United States for that district. In each case judgment was rendered for the defendant and a writ of error sued out by the plaintiff. The errors assigned referred to the matters set forth in the following extract from the record:

"These causes, having been duly ordered to be tried before the same jury by the court, came on for trial before the Hon. Samuel F. Miller and the Hon. Rensselaer R. Nelson, judges of said court, presiding at said trial, at a general term thereof begun and heid at St. Paul, Minnesota, on the third Monday in June, A. D.

1880.

"The respective causes were brought by the plaintiffs on certain policies of insurance bearing date as follows: That of The