the same day, and on that day the plaintiff also filed his petition praying for the removal of the suit to the circuit court of the United States for the Eastern district of Virginia, on the ground that it arose under the constitution of the United States, which was accordingly done. The cause was docketed in the circuit court, and on September 4, 1883, it was, on motion of the defendant, remanded to the circuit court of the city of Richmond. To reverse the order of the circuit court of the United States remanding the cause to the state court, this writ of error is prosecuted.

The ground on which the order of the court below, remanding the cause, was placed, seems to have been that no federal question, such as is necessary to confer jurisdiction in the case upon the courts of the United States, appears to be necessarily involved in the issue raised by the pleadings. In this we think the court erred. The replication alleges that the coupons tendered contained an express promise, as required by law, of the state of Virginia that they should be received in payment of all taxes due to the state. The rejoinder is that the act of January 26, 1882, subsequently passed, expressly forbids the defendant from receiving such coupons in payment of taxes. The demurrer in effect denies the validity of that law, and upon the record no ground of its invalidity can be inferred, except that it is avoided by the operation of that provision of the constitution of the United States which forbids any state from passing laws which impair the obligation of contracts. It therefore sufficiently appears upon the record that the plaintiff's case arises under the constitution of the United States, within the rule as laid down in Bridge Prop'rs v. Hoboken Co. 1 Wall. 116-142.

There is a ground for remanding the cause suggested by the record, but not sufficiently apparent to justify us in resorting to it to support the action of the circuit court. The value of the property taken is stated in the declaration to be but $100, although the damages for the alleged trespass are laid at $6,000. The petition for removal does not allege the sum or value of the matter in dispute otherwise. than by the statement of the amount of the claim for damages. We cannot, of course, assume, as a matter of law, that the amount laid, or a less amount, greater than $500, is not recoverable upon the case stated in the declaration, and cannot, therefore, justify the order remanding the cause, on the ground that the matter in dispute does not exceed the sum or value of $500. But if the circuit court had found, as matter of fact, that the amount of damages stated in the declaration was colorable, and had been laid beyond the amount of a reasonable expectation of recovery, for the purpose of creating a case removable under the act of congress, so that, in the words of the fifth section of the act of 1875, it appeared that the suit "did not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court," the order remanding it to the state court could have been sustained.

The order of the circuit court remanding the cause to the state court is reversed, and the cause is reinstated in that court, with direc'tions to proceed therein in conformity with law. And it is so ordered.

(110 U. S. 76)

Ex parte SCHREIBER and others.1

(January 7, 1884.)

PENALTY FOR INFRINGEMENT OF COPYRIGHT-ABATEMENT OF ACTION BY DEATH OF PARTY-SURVIVAL OF CAUSE OF ACTION-STATE LAWS.

An action for the penalty provided by Rev. St. § 4965, for the infringement of a copyright, abates by the death of the defendant.

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.

Application for a Writ of Mandamus.

A. Sidney Biddle and John K. Valentine, for petitioners. WAITE, C. J. 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 section 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 sub

18. C. 17 Fed. Rep. 589.

jected himself to under an act of congress by the infringement 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. St. § 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. St. § 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.

(110 U. S. 51)

UNITED STATES v. CAREY and another.

SAME V. CAREY.

(January 7, 1884.)

PRACTICE-EXCEPTIONS MUST BE TAKEN At Trial.

An exception, to be of any avail, must be taken at the trial. It may be reduced to form and signed afterwards, but the fact that it was seasonably taken must affirmatively appear in the record by a bill of exceptions duly allowed or otherwise.

In Error to the Circuit Court of the United States for the. District of Louisiana.

Asst. Atty. Gen. Maury, for plaintiff in error.

J. P. Rouse and Wm. Grant, for defendants in error.

WAITE, C. J. The judgment in each of these cases was rendered after a trial by jury on the seventeenth of March, 1880, during the November term, 1879, although it was not signed until May 20, 1880. On the nineteenth of May, 1880, which was at the April term of that year, the district judge who presided at the trial signed a bill of exceptions, which sets forth that on the trial the United States offered in evidence a document, which was annexed, and purported to be a copy of an assessment made by the commissioner of internal revenue for May, 1875, to the introduction of which the defendants objected, and that the objection was sustained. The bill of exceptions then proceeds as follows: "To which ruling of the court plaintiff excepts, and tenders this his bill of exceptions, which is accordingly signed this nineteenth day of May, 1880." The rule is well established and of long standing that an exception, to be of any avail, must be taken at the trial. It may be reduced to form and signed afterwards, but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed or otherwise. Phelps v. Mayer, 15 How. 160; U. S. v. Breitling, 20 How. 254; French v. Edwards, 13 Wall. 516; Stanton v. Embrey, 93 U. S. 555; Hunnicutt v. Peyton, 102 U. S. 354. This clearly is not such a case. There is nothing whatever to indicate that any exception was taken to the rejection of the evidence complained of until the next term after the trial was over and the judgment rendered, though not signed. Even the liberal extension of the rule granted in Simpson v. Dall, 3 Wall. 460, is not enough to reach this defect. The language here implies an exception only at the time of tendering the bill of exceptions to be signed, which was not only long after the trial, but at a subsequent term of the court.

It follows that the errors assigned are not such as we can consider, and the judgments are consequently affirmed.

(110 U. S. 52)

JENNESS v. CITIZENS' NAT. BANK OF ROME.

(January 7, 1884.)

SUPREME COURT-JURISDICTION-AMOUNT CONTESTED BELOW.

In Error to the Circuit Court of the United States for the Eastern District of Michigan.

Harrison Geer and W. B. Williams, for plaintiff in error.
H. M. Duffield, for defendant in error.

WAITE, C. J. The judgment in this case is for $7,275.16, but it appears affirmatively on the face of the record that of this amount $2,669.03 was not disputed below. The defense related alone to the difference between these two amounts, which is less than $5,000.

The dispute here is only in reference to the amount contested below. Such being the case, we have no jurisdiction. The case of Gray v. Blanchard, 97 U. S. 564; Tintsman v. Nat. Bank, 100 U. S. 6; and Hilton v. Dickinson, 108 U. S. ——, [S. C. 2 SUP. CT. REP. 424,] are conclusive to this effect. Dismissed.

(109 U. S. 650)

ALBRIGHT and others v. EMERY.

(January 7, 1884.)

SUPREME COURT OF DISTRICT OF COLUMBIA-DECREE AFFIRMED.

A decree of the supreme court of the District of Columbia, in general term, affirmed, on the facts.

Appeal from the Supreme Court of the District of Columbia.
A. S. Worthington, for appellants.

John W. Ross and S. S. Henkle, for appellee.

BLATCHFORD, J. In a suit in equity brought in the supreme court of the District of Columbia, by the firm of Langdon, Albright & Co., against Samuel Emery, Sr., and five other persons, that court, in special terin, made a decree setting aside an assignment made to two of the defendants, directing the manner in which receivers in the suit should distribute a fund in their hands, directing the clerk to pay to the plaintiffs the whole of a fund in the registry of the court, directing the defendant Emery to pay to the plaintiffs $1,232.37, with interest from July 14, 1879, adjudging Emery to be indebted to the plaintiffs in the further sum of $14,818.98, with interest from July 20, 1877, and the defendant Sailer to be liable to them for the same amount, and awarding execution as at law therefor against them or either of them. From that decree Emery appealed to that court in general term, in his own behalf; Sailer declining, in open court, to appeal. The court in general term made a decree reversing the decree in special term so far as it charged Emery, and dismissing the bill as to him. From that decree the plaintiffs have appealed to this court. It is not necessary to consider the question whether the bill, if demurred to, or if the facts alleged in it were sustained by the proofs, would lie, as setting forth a case for the cognizance of a court in equity, because we are of opinion that the proofs do not establish the allegations of the bill, so far as they affect Emery, in respect to any relief prayed against him in the bill, or any relief granted against him by the court in special term, and that no part of the relief contended for in the assignments of error made by the appellants is warranted by the proofs.

The decree of the court in general term is affirmed.