Moses v. Wooster

delivered the opinion of the court. . After stating the facts in the language reported above, he continued : .

The Judiciary Act of 1789, 1 Stat. 90, ch. 20, § 31, provided that “ if there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or ■plaintiffs against the surviving defendant or defendants.”

This was re-enacted in the Revised Statutes as § 956, and is substantially a copy of the act of 8 and 9 W. III., c. 11, § 7, which it was held, in Clarke v. Hippon, 1 B. & Ald. 586, was. applicable to writs of error. Lord Ellenborough, in giving that judgment, said: “ The proceeding is an action which is commenced by a writ, and the cause of the action is the damage sustained by the parties from the error in the previous judgment, and this damage equally attaches on the survivor in this as in any other action;” 11. 587. This court gave the same effect to our statute in McKinney v. Carroll, 12 Pet. 66.

Appeals to this court from the Circuit and District Courts are “ subject to the same rules, regulations, and restrictions as are or may be prescribed by law in cases of writs of error.” Rev.. Stat. § 10Í2. The cause of action in this appeal, that is to say, “ the damage sustained by the parties in the previous decree,” attaches to the surviving appellants.. A.11 the defendants were enjoined from infringing the patented machine, and all were made liable for the payment of the damages which the patentee had sustained by their joint acts as partners. Clearly, there- . fore, the case is within the statute and may be proceeded with accordingly. The cause of action is one that survives to the surviving appellants.

Undoubtedly cases may arise in which the presence of the representatives of a deceased appellant will be required for the *288 due prosecution of an appeal, notwithstanding the survivorship of others. If that should be so, the court can, /vith propriety, direct that the appeal be dismissed, unless it be properly revived within a limited time. The House of Lords made such an order in Blake v. Bogle, a note of which is found in Mac-queen’s Practice H. of L. 244. Here, however, there is no need of a revivor that substantial justice may be done. The decree below was against, all the defendants jointly, upon a joint cause of action. It affected all alike, and the interest of the decedent is in no way separate or distinct from the others. If the representatives of a deceased appellant voluntarily come in and ask to be made parties, they may be admitted. Such a , course was adopted by the House of Lords in Thorpe v. Matting ley, 1 Phillips, Ch. 200. In the present case, the representatives of the decedent, although notified, do not appear.

It is proper, therefore,• that the appeal should proceed under the statute at the suit of the survivors, and an entry to that effect may he made.