Page:Harvard Law Review Volume 10.djvu/293

ACTIONS UNDER THE PATENT STATUTES. 26/ of the United States which provides for the survival of actions; the State statutes providing the rule in every instance.^ So that, while the proper classification of actions for penalties under State statutes becomes a question of scientific attractive- ness merely, such classification assumes a real interest when the Federal statutes are in question. There we are thrown upon the rule of common law, stated in Williams, Executors, 9th ed., p. 697, as follows : — "But it was a principle of common law that, if an injury was done either to the person or the property of another for which damages only could be recovered in satisfaction, the action died with the person to whom or by whom the wrong was done. Thus, when the action was founded on any malfeasance or misfeasance, was a tort, arose ex delicto^ . . . and the plea under the old pleading must have been *not guilty,' the rule was actio personalis moritur cum persona.* " And the Statute 4 Edw. III. c. 7, by which it was provided that an executor could maintain such an action as the testator might have had in his lifetime, even though the action sounded in tort, if the tort was of such a nature that it rendered the estate less beneficial to the executor than otherwise it would have been, does not apply to actions for penalties under the Federal statutes.^ When the precise nature of such an action qtii tain is scruti- nized, it becomes clear that there is but one answer to the ques- tion whether it survives. Reason answers this question in the negative, because an executor cannot, in the nature of things, con- tinue an action for the estate which he could not bring for the estate. Section 4901 of the Revised Statutes, upon which an action is brought, expressly provides for a person to sue for the penalty. An executor, therefore, representing an estate cannot begin an action qui tarn under this act, as an executor. Therefore neither can an executor continue such an action for a plaintiff deceased. So, unless special statutory provision can be found whereby the action under § 4901 may be made to survive the party, then death of either party before verdict abates the suit, because at common law the death of a party to an action in tort abated the suit.^ 1 Jones V. Van Zandt's Adm'r, 4 McLean, 604 ; United States v. De Goer, 38 Fed, Rep. 80. 2 United States v. De Goer, supra. 8 Hatch V. Euslis, i Gall. 160.