delivered the opinion of the Court
■ This is the caseof an appeal from, the .circuit court of. the district 5pf. Rhode'Island The original cause was a-bill'in equity brought by Willard,W. Wetmore, deceased, a citizen of Connecticut, against the defendants, Henry M'athewson' and. others, all citizens of Rhode Island; for án account upon certain transactions.set forth in the bill, and with- a prayer for ■ general 'relief., After the. cause was at .issue upon the hearing, it was, by agreement of the parties, ordered-by the court tq be referred to a.master tó take an account; and pending the proceedings before the master, the intestate’ died. Administration upon his estate was duly taken out by the present plaintiff, John H. Clarke, in the.state of'Rhode Island; .the laws of Rhode' island requiring that; no person not, a .resident of the state, should take out letters'of administration; and also making such administration indispensable'to' the prosecution and defence of any suit in the state,-in right of the estate of the intestate.
Clarke filed a bill of revivor in the circuit court, in. June, 1,834,-in which:he alleged himself to be a citizen of Rhode Island, and ad-r ministrator of Wetmoíe, agáinst the defendants; whom he alleged* -also, to he.citizens of. the sáme state.'. So .that it wás apparent upon the face of the récord, that the bill of revivor was between citizens of the same state.’ Upon motio'n of the defendants,-at the November term of the circuit court, ^A. D. 1835, the court ordered the .ill of. revivor to be dismissed for want of jurisdiction; and from* this decretal brder, the present, appeal has been taken .by the appellant.
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The case, as it was decided in the. circuit court,, is reported in 2 Sumner’s. Rep. 262, 268; and the ground of dismissal ,was, that: the bill of. revivor was a suit between "citizens jof the same state. The judiciary act .pf 1789, ch.,20, sec. 11., confers original jurisdiction Upon the circuit courts, of all suits of a civil nature at common law and in equity; where the' matter in dispute exceeds the sqm or value of five hundred, dollars, and the United States are plaintiffs hr petitioners, or an alien is a party; or the suit is between a citizen of tbe state where the suit is brought and. a citizen of another state. If, therefore,.the present had been; an original bill-brought between the present parties, it is clear that it could not have been maintained; for although the plaintiff, could sue In mitré droit,-and as administrator, of a citizen, of another state-; yet the suit would be deemed a controversy between him and the defendants, and,not between his intestate and the defendants. This is the necessary result of the doctrine held by this Court in Chappedelaine v. Decheneaux,
The . circuit court treated the. present case as'felling within the same p^edicapient; In this, we are of opinion, that the court erred, •The hill-of revivor. Was, in no just sense, an original suit;' but was a mere continuation of the original'suit. The parties' to the original bill were citizens of different states; arid .the jurisdiction of the court completely attached to the controversy: having sd attached, it could not'.he divested by any subsequent events; and the court had a rightful authority to proceed to- a -final determination of it. If, after the commencement of the suit, the original plaintiff had removed into, and become a citizen of Rhbcle Island, the jurisdiction over.-the cause, would not have been divested by'such change of- domicil. So it was held by this- Court in Morgan’s Heirs v. Morgan,
The -death of either party, pending the suit, doe? not, where the cause-of action , survives, amount to a determination of the suit. It might in suits at common law, upon the mere principles of that law, have produced an abatement of the suit, which- would have destroyed it. But in courts of equity, ah abatement of the suit, by the death- of a party,, has -always been held to have a very different effect; for shcb abatement amounts to a mere suspension, and not to a determination of the suit. It may agairi be put' in motion by a .bill of revivor, and the proceedings being revived, the cause proceeds to its
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regular determination as an original bill. The bill of revivor is not the commencemént of a new suit; but is the mere continuation of the old suit.- It is upon a ground somewhat analogous, that the circuit courts are held,to have jurisdiction in cases of crops bills, and injunction bills, touching suits and judgments already in those courts; for such bills áre treated riot strictly as original bills, but as supplementary or dependent bills, and so properly within the reach of the court; although the defendant, (who was plaintiff in the original suit) lives out of the jurisdiction. A very strong application of the doctrine is to be found in the case of Dunn v. Clarke,
But if any doubt could upon general principles be entertained upon this subject, we think it'entirely removed by the 31st section of the judiciary act of 1789, ch. 20. That section provides that where, in any suit pending in the courts of the United States, either of. the parties shall die before final judgment, the executor or administrator of such deceased party, who was plaintiff, petitiorier or. defendant, in case the cause of action doth by Jaw survive, shall have full power to proseeute or defend any such suit or action until final judgment, and that the defendant shall be obliged to answer thereto accordingly; and the court before whom the cause is depending, is empowered and directed to hear and determine the same, and to render judgment for or against the executor or administrator, as the case may require. Other auxiliary provisions are made to carry this enactment into effect. Now, in this section, congress manifestly .treat the revivor of the suit, by or against the representative of the deceased, as a matter of right, arid as a mere continuation of the original suit; without any distinction as to the citizenship of the representative, whether he belongs to the same state where the cause is depending, or to another state. Of the competency of congress to pass such an enactment under the constitution, no doubt is entertained. The present case falls directly within its purview; and we.are therefore of opinion, that the decree of the. circuit court, dismissing the bill of revivor, ought to be reversed; and the cause remanded to the circuit court for further proceedings.
I take this opportunity of adding, that I fully concur in all the *173 reasoning of this Court on this subject. After the decision had been made in the. circuit court, upon more mature reflection I changed my original opinion; and upon my expressing it in the.circuit court, and upon the suggestion of the judges of that court, the case has been brought here for a final determination. 1 hope that I shall always have'the candour to acknowledge my errors, in-a public manner whenever I have become convinced of them.
This cause came on to be heard on the transcript of the record frotn the circuit eourt of the United States for the district of Rhode Island, and was argued by counsel. On consideration whereof, it is now hereby ordered, adjudged - and decreed 'by this Court, that the decree of the said circuit court, dismissing the bill of revivor in the cause, ought to! be,\and the same is hereby reversed;'and that'this cause be, and the same is hereby remanded to the said circuit court, for further proceedings to be had therein, in conformity to the opinion of this Court, and according to,law.