The petitioners sued Charles L. Sharpless in the District Court of the United States for the Eastern District of Pennsylvania to recover certain penalties and forfeitures claimed under the provisions of sec. 4965 of the Revised Statutes, for the infringement of a copyright. Sharpless died after issue joined, but before judgment. After his death had been suggested by his attorney in the cause, the petitioners sued out a scire facias against Anna R. Sharpless, executrix, and Charles W. Sharpless, executor of his will, requiring them to appear and become parties to the action, or show cause why they should not be made parties, by order of the court. Before this writ was served, the attorney for Sharpless during his life, moved that the writ be quashed. After argument the motion was granted, on the ground that the cause of action terminated with the death of the defendant, and did not survive as against his legal representatives.
The petitioners now ask for a rule on the District Court to show cause why a writ of mandamus should not issue requiring it to reinstate the writ of scire facias and proceed with the case.
Without considering whether a writ of mandamus may issue directly from this court to a District Court to enforce procedure in a case where the final judgment of the District Court is subject to review in the Circuit Court, we deny the rule asked for, because we are entirely satisfied with the action of the district judge. He was asked to send out a writ of scire facias to bring in and make parties to a qui tam action the personal representatives of a deceased defendant, who had been sued to recover the penalties and forfeitures which it was alleged he had subjected himself to, under an act of Congress, by the infringement
The rule is denied and petition dismissed.