1821.

Green

V.

Watkins.

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

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." 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

eause.

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

a 2 Tidd's Pr. ch. 43. Error, p. 1096.

1821.

Green
V.

Watkins.

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."

(CONSTITUTIONAL Law.)

COHENS V. VIRGINIA.

This Court has, constitutionally, appellate jurisdiction under the judiciary act of 1789, c. 20. s. 25. from the final judgment or decree of the highest Court of law or equity of a State, having jurisdiction of the subject matter of the suit, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of such, their validity; or of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed, by either party, under such clause of the constitution, treaty, statute, or commission.

It is no objection to the exercise of this appellate jurisdiction, that one of the parties is a State, and the other a citizen of that State.

a Vide new order of Court of the present term. Ante, Rule XXXII.

The act of Congress of the 4th of May, 1812, entitled, "an act further to amend the charter of the city of Washington," which provides, (s. 6.) that the Corporation of the city shall be empowered, for certain purposes, and under certain restrictions, to authorize the drawing of lotteries, does not extend to authorize the Corporation to force the sale of the tickets in such lottery, in States where such sale may be prohibited by the State laws.

THIS was a writ of error to the Quarterly Session Court for the borough of Norfolk, in the State of Virginia, under the 25th section of the judiciary act of 1789, c. 20. it being the highest Court of law or equity of that State having jurisdiction of the case.

Pleas at the Court House of Norfolk borough, before the Mayor, Recorder, and Aldermen of the said borough, on Saturday, the second day of September, one thousand eight hundred and twenty, and in the forty-fifth year of the Commonwealth.

Be it remembered, that heretofore, to wit: At a Quarterly Session Court, held the twenty-sixth day of June, one thousand eight hundred and twenty, the grand jury, duly summoned and impanelled for the said borough of Norfolk, and sworn and charged according to law, made a presentment in these words:

1821.

Cohens

V.

Virginia.

We present P. J. and M. J. Cohen, for vending Presentment. and selling two halves and four quarter lottery tickets of the National Lottery, to be drawn at Washington, to William H. Jennings, at their office at the corner of Maxwell's wharf, contrary to the act thus made and provided in that case, since January, 1820. On the information of William H. Jennings.

1821.

Cohens

V.

Virgínia.

Information.

Whereupon the regular process of law was awarded against the said defendants, to answer the said presentment, returnable to the next succeeding term, which was duly returned by the Sergeant of the borough of Norfolk-" Executed."

And at another Quarterly Session Court, held for the said borough of Norfolk, the twenty-ninth day of August, one thousand eight hundred and twenty, came, as well the attorney prosecuting for the Commonwealth, in this Court, as the defendants, by their attorney, and on the motion of the said attorney, leave is given by the Court to file an information against the defendants on the presentment aforesaid, which was accordingly filed, and is in these words:

Norfolk borough, to wit: Be it remembered, that James Nimmo, attorney for the Commonwealth of Virginia, in the Court of the said borough of Norfolk, cometh into Court, in his proper person, and with leave of the Court, giveth the said Court to understand and be informed, that by an act of the General Assembly of the said Commonwealth of Virginia, entitled, "An act to reduce into one, the several acts, and parts of acts, to prevent unlawful gaming." It is, among other things, enacted and declared, that no person or persons shall buy, or sell, within the said Commonwealth, any lottery, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof: and the said James Nimmo, as attorney aforesaid, further giveth the Court to understand and be informed, that P. J. and M. J. Cohen, traders and partners, late of the parish of Elizabeth River, and