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Macker's
Heirs

dering judgment against them? The Court consi- 18?1. der this point to have been decided in the case of Green v. Watkins, 6 Wheat. Rep. 260. The question there was, whether in real actions, the death of Thomas. either party, after a writ of error sued out, abates the suit; and it was decided that it did not. But in examining the general principles of law upon the subject of abatement by the death of parties, it was distinctly laid down, that in real and personal actions, the death of either party, before judgment, did at common law abate the suit; and that the 31st section of the Judiciary Act of 1789, c. 20., was necessary to enable the action to be prosecuted by or against the representatives of the deceased party, when the cause of action survived. But this section is clearly confined to personal actions, as the power to prosecute or defend is given to the executor or administrator of the deceased party, and not to the heir or devisee.

It is objected by the counsel for the defendant in error, that the defendants in the Court below could not sue out and prosecute a writ of error, because they failed to appear and plead to the suit in that Court. No case was referred to in support of this objection, and it is confidently believed that none can be found to countenance it. Although the plaintiffs in error did not plead to the suit, they were nevertheless made parties to it by the order of the Court, and as such, judgment was rendered against them, and that too upon a summons and count against the ancestor. Being, then, parties to the suit, and affected by the j udgment against them, they were

1022.

Mackcrt

Heirs

v.

Thomas.

clearly entitled to sue out a writ of error; and although the judgment was entered by default for want of a plea, they may be injured not less by such judgment, than if it had been entered upon a verdict. If judgment in an action of trespass be rendered against one defendant by default, and in favour of the other defendant upon a plea, the former may alone bring a writ of error. (Lev. 220. Hob. 70.) If it should be said that the appearance of the plaintiffs in error in the Circuit Court, by an attorney of that Court, cured the error committed in reviving the suit against them, the answer is, that by the death of the ancestor, a new cause of action arose against the heirs, and the plea is not in the same condition as it was in the lifetime of the party." The suit having once abated by the death of the defendant, it was out of Court, and a new summons and count against the heirs was necessary. Besides, the appearance was not voluntary, but was the consequence of an erroneous order of the Court, enabling the plaintiff below to prosecute the suit against the heirs.

It is objected, in the last place, that if the plaintiffs have a right to prosecute this writ of error, they nevertheless cannot assign for error the order of the Court reviving the suit, because they failed in that Court to appear and except to the opinion of the Court in relation to the order. But an exception to the opinion of the Court is only necessary when the alleged error could not otherwise appear upon the record. The error in this case was in orderine

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the suit to be revised and prosecuted against the heirs of the original defendant, and proceeding to render judgment against them upon a summons and count against the original defendant, all which sufficiently appears upon the face of this record.

1822.

Macker'a

Heirs

v.

Thomas.

Judgment. This cause came on to be heard on the transcript of the record of the Circuit Court of the United States for the district of Kentucky, and was argued by counsel for the defendant in error. On consideration whereof, this Court is of opinion that the said Circuit Court erred in ordering the suit to be revived and prosecuted against the heirs of the original defendant, and proceeding to render judgment against them upon a summons and count against the original defendant. It is therefore Adjudged and Ordered that the judgment of the said Circuit Court in this case be, and the same is hereby, reversed and annulled. And this Court proceeding to render such judgment as the said Circuit Court should have rendered, it is farther Adjudged and Ordered that the said suit be, and the same is hereby abated.

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wheel- Tl,e Columbian Insurance Company V. Wheel

nght.

Right et al

A writ of error will lie from this Court upon the judgments of the Circuit Courts, awarding a peremptory mandamus.

Error to the Circuit Court for the District of Columbia. larch \sth. In this case, which was argued by Mr. Jones, for the plaintiffs in error, and by Mr. Swann, for the defendants in error," the Court determined that a writ of error would lie under the act relating to the District of Columbia, which is similar in its provisions to the judiciary act of 1789, c. 20. sec. 22., to reverse the judgment of the Circuit Court, awarding a peremptory mandamus, to admit the defendants in error to the offices of directors in the Columbian Insurance Company, and directed Mr. Jones to produce affidavits as to the value of the matter in controversy. But it not appearing that it amounted to one thousand dollars, the sum required to give this Court appellate jurisdiction from the final judgments or decrees of the Circuit Court for the District of Columbia, the Court afterwards directed the writ of error to be quashed. The Court was of opinion that there was nothing in controversy but the value of the office, and that its value must be ascertained by the salary. Although, therefore, a writ of error might issue to a 1822. judgment awarding a peremptory mandamus to re- BiightC^Lesstore to office where the matter in controversy was see sufficient to give jurisdiction to the Court, it could Rochester. not regularly issue in this case.

a He cited Bac. Mr. tit. Mandamus. 0 Mod. 27. 1 P. Wins.

Writ of error quashed.

(common Law.)

Blight's Lessee et al v. Rochester.

British subjects, born before the revolution, are equally incapable with those born after, of inheriting, or transmitting the inheritance of lands in this country.

The treaties of 1783, and 1794, only provide for titles existing at the time those treaties were made, and not to titles subsequently acquired.

Actnal possession is not necessary to give the party the benefit of the treaty; but the existence of title at the time is necessary.

Where J. D., an alien and British subject, came into the United States subsequent to the treaty of 1783, and before the signature of the treaty of 1794, died, seized of the lands in question: Held, that the title of his heirs was not protected by the treaties.

In what cases citizenship may be presumed so as to confirm a title to lands.

The doctrine of estoppel, or the principle of legal policy, which forbids a party from denying the title under which he has received a conveyance, does not apply as between vendor and vendee, especially where Uie latter has not received possession from the former.

Error to the Circuit Court of Kentucky. This was an ejectment in the Court below, brought to recover the possession of lot No. 18, in the town of

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