If this were the case of an original bill, brought by the plaintiff, as administrator, against the defendants, it is clear, that the suit could not be maintained, although the plaintiff’s intestate was a citizen of another state; for the parties before the court would be all citizens of Rhode Island. The plaintiff’s suing in autre droit could not help him, although his intestate was a citizen of Connecticut; for the suit would still be his own personal suit. This is the necessary result of the doctrine, maintained in Chappedelaine v. Decheneaux, 4 Cranch [8 U. S.] 306; Childress v. Emery, 8 Wheat. [21 U. S.] 642; and Dodge v. Perkins [Case No. 3,954]. But the present bill being a bill of revivor only of an original suit, between citizens of different states, it is supposed, that the plaintiff is entitled to revive and continue the former suit, although he is a citizen of the same state as the defendants. The difficulty upon this is, that the moment the suit stands revived, it is in reality a suit between the plaintiff and the defendants personally; and the decree must treat them as the only parties to the bill. The death of the original plaintiff severed him forever from the suit.
This is not like thé case of a bill, brought for an injunction to a judgment of the circuit court. There it has been held, that if the plaintiff in the judgment is a citizen of another state, than that in which the suit' is brought, he. may still be compelled to appear and answer the injunction bill. But the reason is, that the judiciary act of 1789, c. 20, § 11 [1 Stat. 78], requiring the suit to be brought in the district, of which the defendant is an inhabitant, or in which he is found, does not apply to any bill, but an original bill; and an injunction bill is treated not as an original, but as an incidental bill. The *973same rule applies to a cross bill, filed in tlie same circuit court, where the original hill is brought. In each of these cases, the diffi-cu]tjr does not arise from the constitution, but from the act of congress. The constitution would justify a suit between citizens of different states in any circuit court. The act of congress narrows it down to the circuit court of the district, where the defendant dwells, or is found.
[The court added that if any doubt existed on general principles as to the correctness of this view, it was removed by section 31 of the judiciary act of 17S9, c. 20. which provides that, if either of the parties to a suit pending in the federal court die before final judgment, the executor or administrator of such deceased party, if the cause of action survive, • may prosecute or defend the same to.final judgment; and which also empowers and directs the court before whom the cause is depending to hear and determine the same. Clarke v. Mathewson, 12 Pet. (37 U. S.) 104.]In the cases of injunction bills and cross hills, the parties are supposed still to be citizens of different states; and therefore, the only difficulty, that arises, is, as to the service of process on them. But, in the present case, tlie hill of revivor seeks to carry on a suit between adverse parties, who are all citizens of the same state. When the suit is revived, it is a suit by.Clarke, a citizen of Rhode Island, against Mathewson and others, citizens of Rhode Island. I confess, that I have difficulty in seeing, how this court can entertain such a suit, or make any decree therein; for the controversy is no longer between the original parties, but between the new parties on the bill of revivor. I agree to the doctrine, that, where the parties are citizens of different states at the commencement of the suit, a subsequent change of domi-cil and citizenship, will not oust the jurisdiction. That was so held in Morgan’s Heirs v. Morgan, 2 Wheat. [10 U. S.] 200, 297, and Mollan v. Torrance, 9 Wheat. [22 U. S.] 537. But in that case, the original parties were still before the court. But in the present case a new party plaintiff is introduced, whose citizenship is, at the time of his filing his bill, in the same state with the defendants. It is true, that the judiciary act of 17S0, c. 20, § 31 [1 Stat. 00], authorizes executors and administrators to appear and prosecute and defend suits, pending at the time of the death of their respective testators and intestates, unto final judgment. But I am not aware, that this provision has ever been held to apply to executors and administrators, who could not sue or defend as original parties in such suits. If there had been any known course of decisions, which had established such a right and practice, 1 should follow it, whatever might be my private doubts. But no such course of decisions has been appealed to.
It appears to me then, that the bill of re-vivor must be dismissed, as the controversy, which it seeks to revive, is now between citizens of tlie same state. As the district judge concurs in this opinion, the bill is accordingly to be dismissed, for want of jurisdiction.
After this opinion was delivei'ed, the cause was continued to tlje next term, at the suggestion of the parties. The court, at that term, suggested, that they entertained, upon farther reflection, great doubts on the point; and recommended that the case should be taken to the supreme court for a final decision, which was accordingly done. [12 Pet. (37 U. S.) 164.]