happen before, and the plaintiff will not assign errors, the representatives of the defendant may have a scire facias quare executio non, in 263*] order to compel him; if it happen after, they must proceed as if the defendants were living, till judgment be affirmed, and then revive by scire facias. And the plaintiff, in order to compel the representatives of the defendant in error to join in error, may sue out a scire facias ad audiendum errores, either generally, or naming them. Such is the doctrine of approved authorities. It is clear, therefore, that at common law, in these cases, a writ of error does not necessarily abate; and that the personal representatives may not only be admitted voluntarily to become parties, but a scire facias may issue to require them to become parties. And such has been the practice hitherto adopted in this court in all personal actions, whether there has been an assignment of errors or not; for, a specific assignment of errors has never been insisted on here, as a preliminary to the argument, or decision of the

cause.

In respect to real actions, this is the first time the question has presented itself upon a writ of error, where the death of either party has occurred pendente lite. There is no doubt that the heir or privy in estate, who is injured by an erroneous judgment, may prosecute a writ of error to reverse it. And there seems no

good reason why, in case of the death of his ancestor, pending proceedings, he may not be admitted to become a party, or be cited to become a party, to pursue or defend the writ, in the same manner as in personal actions. The death of neither party produces any change in 264*] the condition of the cause, or in the rights of the parties. It would seem reasonable, therefore, that the suit should proceed, and not be dismissed or abated. In the absence of all authority which binds the court to a different course, we are disposed to adopt this doctrine, and shall promulgate a general rule on the subject.

Rule accordingly.'

[Constitutional Law.

COHENS v. VIRGINIA.

This court, has constitutionally, appellate jurisdiction under the judiciary act of 1789, ch. 20, s. 25, from the final judgment or decree of the highest court of law or equity of a state, having jurisdiction of the subject-matter of the suit, where' is drawn in question the validity of a treaty, or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United

States, and the decision is in favor of such, their validity; or of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed, by either party, under such clause of the constitution, treaty, statute, or commission.

It is no objection to the exercise of this appellate jurisdiction, that one of the parties is a state, and the other a citizen of that state.

*The act of Congress of the 4th of May, [*265 1812, entitled, "an act further to amend the charter of the city of Washington," which provides (s. 6), that the corporation of the city shall be empowered, for certain purposes, and under certain restrictions, to authorize the drawing of lotteries, does not extend to authorize the corporation to force the sale of the tickets in such lottery, in states where such sale may be prohibited by the state laws.

THIS

ПHIS was a writ of error to the Quarterly Session Court for the borough of Norfolk, in the state of Virginia, under the 25th section of the judiciary act of 1789, c. 20, it being the highest court of law or equity of that state having jurisdiction of the case.

Pleas at the Court-House of Norfolk borough, before the Mayor, Recorder, and Aldermen of the said borough, on Saturday, the second day of September, one thousand eight hundred and twenty, and in the forty-fifth year of the Commonwealth.

Be it remembered, that heretofore, to wit, sixth day of June, one thousand eight hundred at a Quarterly Session Court, held the twentyand twenty, the grand jury, duly summoned and impaneled for the said borough of Norfolk, and sworn and charged according to law, made a presentment in these words:

ing and selling two halves and four quarter We present P. J. and M. J. Cohen, for venddrawn at Washington, to William H. Jennings, lottery tickets of the National Lottery, to be at their office at the corner of Maxwell's wharf, contrary to the act thus made and provided in tion of William H. Jennings. that case, since January, 1820. On the informa

*Whereupon the regular process of [*266 law was awarded against the said defendants, to answer the said presentment, returnable to the next succeeding term, which was duly returned by the sergeant of the borough of Norfolk-"Executed."

And at another Quarterly Session Court, held for the said borough of Norfolk, the twentyninth day of August, one thousand eight hundred and twenty, came, as well the attorney prosecuting for the Commonwealth, in this court, as the defendants, by their attorney, and on the motion of the said attorney, leave is given by the court to file an information against the defendants on the presentment aforesaid, which was accordingly filed, and is in these words:

Norfolk borough, to wit: Be it remembered, that James Nimmo, attorney for the commonwealth of Virginia, in the court of the said

NOTE. Jurisdiction of U. S. Supreme Court where federal question arises, or where is drawn in question statute, treaty, or constitution of U. S. See notes to 2 L. ed. U. S. 654; 4 L. ed. U. S. 97; 6 L. ed. U. S. 571.

Nature of decision as affecting right of review, see note to 63 L.R.A. 53.

proper person, and with leave of the court, giveth the said court to understand and be informed, that by an act of the General Assembly of the said commonwealth of Virginia, entitled, "An act to reduce into one, the several acts, and parts of acts, to prevent unlawful gaming." It is, among other things, enacted and declared,

that no person or persons shall buy, or sell, within the said commonwealth, any lottery, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws thereof; and the said James Nimmo, as attorney aforesaid, further giveth the court to understand and be informed that P. J. & M. 3. Cohen, traders and partners, late of the 267*] parish of Elizabeth River, and *borough of Norfolk aforesaid, being evil-disposed persons, and totally regardless of the laws and statutes of the said commonwealth, since the first day of January, in the year of our Lord one thousand eight hundred and twenty, that is to say, on the first day of June, in that year, and within the said commonwealth of Virginia, to wit, at the parish of Elizabeth River, in the said borough of Norfolk, and within the jurisdiction of this court, did then and there unlawfully vend, sell, and deliver to a certain William H. Jennings, two half lottery tickets, and four quarter lottery tickets of the National Lottery, to be drawn in the city of Washing ton, that being a lottery not authorized by the laws of this commonwealth, to the evil example of all other persons in the like case offending, and against the form of the act of the General Assembly, in that case made and pro

vided.

case

James Nimmo, for the Commonwealth. And at this same Quarterly Session Court, continued by adjournment, and held for the said borough of Norfolk, the second day of September, eighteen hundred and twenty, came, as well the attorney prosecuting for the commonwealth, in this court, as the defendants by their attorney, and the said defendants, for plea, say, that they are not guilty in manner and form, as in the information against them is alleged, and of this they put themselves upon the country, and the attorney for the commonwealth doth the same; whereupon a 268*] *was agreed by them to be argued in lieu of a special verdict, and is in these words: Commonwealth against Cohens-case agreed. In this case, the following statement is admitted and agreed by the parties in lieu of a special verdict: That the defendants, on the first day of June, in the year of our Lord eighteen hundred and twenty, within the borough of Norfolk, in the commonwealth of Virginia, sold to William H. Jennings a lottery ticket, in the lottery called, and denominated the National Lottery, to be drawn in the city of Washington, within the District of Columbia.

Nor shall any

benefit of the literary fund. person or persons buy, or sell, within this commonwealth, any lottery ticket, or part or share of a lottery ticket, except in such lottery or lotteries as may be authorized by the laws *thereof; and any person or persons [*269 offending herein, shall forfeit and pay, for every such offense, the sum of one hundred dollars, to be recovered and appropriated in manner last aforesaid.

That the Congress of the United States, enacted a statute on the 3d day of May, in the year of our Lord 1802, entitled, an act, etc., in the words and figures following: An Act to incorporate the inhabitants of the city of Washington, in the District of Columbia.

Be it enacted by the Senate and House of of Representatives the United States of America, in Congress assembled, That the inhabitants of the city of Washington be constituted a body politic and corporate, by the name of a Mayor and Council of the city of Washing ton, and by their corporate name may sue and ceive, and do all other acts as natural persons, be sued, implead and be impleaded, grant, reand may purchase and hold real, personal and mixed property, or dispose of the same for the benefit of the said city; and may have and use a city seal, which may be altered at pleasure. The city of Washington shall be divided into three divisions or wards, as now divided by the levy court for the county, for the purposes of assessment, but the number may be increased hereafter, as in the wisdom of the city council shall seem most conducive to the general interest and convenience.

Sec. 2. And be it further enacted, That the council of the city of Washington shall consist of twelve *members, residents of the [*270 city, and upwards of twenty-five years of age, to be divided into two chambers; the first chamber to consist of seven members, and the second chamber of five members; the second chamber to be chosen from the whole number of councillors, elected by their joint ballot. The city council to be elected annually by ballot, in a general ticket, by the free white male inhabitants of full age, who have resided twelve months in the city, and paid taxes therein the year preceding the elections being held; the justices of the county of Washington, resident in the city, or any three of them, to preside as judges of election, with such associates as the council may from time to time appoint.

Sec. 3. And be it further enacted, That the first election of members of the city council, shall be held on the first Monday in June next, and in every year afterwards, at such place in each ward as the judges of the election may

Sec. 4. And be it further enacted, That the polls shall be kept open from eight o'clock in the morning till seven o'clock in the evening, and no longer, for the reception of ballots. On the closing of the poll, the judge shall close and seal their ballot-boxes, and meet on the day following, in the presence of the marshal of the district, on the first election, and the council afterwards; when the seal shall be broken, and the votes counted; within three days after such election, they shall give notice to the persons having the greatest number of

Sec. 6. And be it further enacted, That the city council shall hold their sessions in the city hall, or until such building is erected, in such place as the mayor may provide for that purpose, on the second Monday in June, in each year; but the mayor may convene them oftener, if the public good require their deliberations; three-fourths of the members of each council, may be a quorum to do business, but a smaller number may adjourn from day to day; they may compel the attendance of absent members in such manner, and under such penalties, as they may, by ordinance, provide; they shall appoint their respective presidents, who shall preside during their sessions, and shall vote on all questions where there is an equal division; they shall settle their rules of proceedings, appoint their own officers, regulate their respective fees, and remove them at pleasure; they shall judge of the elections, returns, and qualifications of their own members, and may, with the concurrence of threefourths of the whole, expel any member for disorderly behavior, or malconduct in office, but not a second time for the same offense; they shall keep a journal of their proceedings, and enter the yeas and nays on any question, resolve or ordinance, at the request of any member, and their deliberations shall be public. The mayor shall appoint to all offices under the 272*] corporation. All ordinances *or acts passed by the city council, shall be sent to the mayor for his approbation, and when approved by him, shall then be obligatory as such. But if the said mayor shall not approve of such ordinance or act, he shall return the same with in five days, with his reasons in writing therefor; and if three-fourths of both branches of the city council, on reconsideration thereof, approve of the same, it shall be in force in like manner as if he had approved it, unless the city council, by their adjournment, prevent its

return.

Sec. 7. And be it further enacted, That the corporation aforesaid shall have full power and authority to pass all by-laws and ordinances to prevent and remove nuisances; to prevent the introduction of contagious diseases within the city; to establish night watches or patroles, and erect lamps; to regulate the stationing, anchorage, and mooring of vessels; to provide for licensing and regulating auctions, retailers of liquors, hackney carriages, wagons, carts and drays, and pawn-brokers within the city; to restrain or prohibit gambling, and to provide for licensing, regulating, or restraining theatrical or other public amusements within the city; to regulate and establish markets; to erect and repair bridges; to keep in repair all necessary streets, avenues, drains and sewers, and to pass regulations necessary for the preservation of the same, agreeably to the plan of the said city; to provide for the safe keeping of the standard of weights and measures fixed by Congress, and for the regulation of all weights and measures used in the city; to

the sweeping of chimneys, and fixing the rates thereof; to establish and regulate fire wards and fire companies; to regulate and establish the size of bricks that are to be made and used in the city; to sink wells, and erect and repair pumps in the streets; to impose and appropriate fines, penalties and forfeitures for breach of their ordinances; to lay and collect taxes; to enact by-laws for the prevention and extinguishment of fires; and to pass all ordinances necessary to give effect and operation to all the powers vested in the corporation of the city of Washington: Provided, That the by-laws, or ordinances of the said corporation, shall be in no wise obligatory upon the persons of nonresidents of the said city, unless in cases of intentional violation of the by-laws or ordinances previously promulgated. All the fines, penalties and forfeitures imposed by the corporation of the city of Washington, if not exceeding twenty dollars, shall be recovered before a single magistrate, as small debts are by law recoverable; and if such fines, penalties and forfeitures, exceed the sum of twenty dollars, the same shall be recovered by action of debt, in the District Court of Columbia, for the county of Washington, in the name of the corporation, and for the use of the city of Washington.

Sec. 8. And be it further enacted, That the person or persons appointed to collect any tax imposed in virtue of the powers granted by this act, shall have authority to collect the same, by distress and sale of the goods and chattels of the person chargeable therewith; no sale shall be made, unless ten days' *previous notice thereof be given; no [*274 law shall be passed by the city council subjecting vacant or unimproved city lots, or parts of lots, to be sold for taxes.

Sec. 9. And be it further enacted, That the city council shall provide for the support of the poor, infirm and diseased of the city.

Sec. 10. Provided always, and be it further enacted, That no tax shall be imposed by the city council on real property in the said city, at any higher rate than three-quarters of one per centum, on the assessment valuation of such property.

Sec. 11. And be it further enacted, That this act shall be in force for two years from the passing thereof, and from thence to the end of the next session of Congress thereafter, and no longer.

And another act, on the 23d day of February, 1804, entitled, "An act supplementary to an act, entitled, an act to incorporate the inhabitants of the city of Washington, in the District of Columbia."

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the act, entitled, An act to incorporate the inhabitants of the city of Washington, in the District of Columbia, except so much of the same as is consistent with the provisions of this act, be, and the same is hereby continued in force, for and during the term of fifteen years from the end of the next session of Congress.

Sec. 12. And be it further enacted, That the council of the city of Washington, from and after the *period for which the members [*275 of the present council have been elected, shall