Page:Harvard Law Review Volume 10.djvu/294

268 268 HARVARD LAW REVIEW, Section 955 of the Revised Statutes of the United States does not throw any Hght on the question; it merely enacts that an executor may prosecute or defend an action in the Federal courts if such action survive by law. The law referred to is the law of the State in which the action has been brought. No State statute can apply to an action qui tarn under the United States statutes, because the action is not one which can in any event be tried in the courts of the State, for it involves no subject matter which is cognizable, either by the courts or the legislatures of the States. A State statute providing that all actions qui tarn for penalties should survive would have no effect on actions in the Federal courts brought under a Federal statute. Such actions have their root in the United States statutes, and nowhere else.^ The District Court of the United States for Massachusetts has recently followed this rule of law, holding that an action under § 4901 of the Revised Statutes abates by the death of the plaintiff, and cannot be revived or continued by his executor.^ While the intent of Congress in enacting § 4901 of the Patent Acts was presumably to throw a healthful restraint in the way of unscrupulous persons who might be tempted to deceive the public, and while it is reasonable to assume that such restraint has been exercised by the statute ; on the other hand one may infer from the manner in which the Federal courts have dealt with actions under the act that the informers themselves are not regarded as above reproach. Doubtless many such actions have been brought for the sake of intimidation, not to say blackmail, in cases where the facts did not warrant an information. Whether this is so or not, if any person contemplating bringing an information under § 4901 became acquainted with the decisions of the courts on the subject, any preconceived impression that wealth was easily to be obtained by the process would be dispelled. The reported cases are not numerous, but each one seems to impose a restriction upon the operation of the statute in addition to those imposed by its fore- runner. The usual mode of committing the offence against the statute is by marking unpatented articles ''patented," as provided for by the third paragraph of § 4901. The name or mark used by a genuine patentee is very seldom borrowed without license. 1 Schreiber v. Sharpless, no U. S. 76; United States v. De Goer, supra. 2 Marshall v. Clinton W^ all Trunk Co. (not reported).