appointed by the court. Where a volunteer applied for the writ of habeas corpus on behalf of a person whom he alleged to be wrongfully confined as a lunatic, the court appointed another guardian ad litem with the direction that he examine the facts and use his own discretion in determining whether to continue the proceeding." If a plaintiff become a lunatic after the institution of a suit, a supplemental bill may be filed in the joint names of the lunatic and of the committee of his estate, which will answer the same purpose as a bill of revivor in procuring the benefit of former proceedings. If a committee die and a new committee is appointed after a suit has been instituted by the former for the benefit of his idiot or lunatic, the proper way of continuing the suit is by a supplemental bill filed by the idiot or lunatic and the new committee. In England, a committee, usually before the institution of a suit, prayed the sanction of the Lord Chancellor by a petition, which was often referred to a master. If a person of full age is neither an idiot nor a lunatic, and is yet incapable of managing his affairs, the court may appoint a next friend to sue for him. a bill has been filed in the name of a plaintiff, who, at the time of filing it, is in a state of mental incapacity, it may, on motion, be taken off the file. If, however, after a suit has been properly instituted, a plaintiff becomes imbecile, the bill cannot for that reason be taken off the file.11

If

§ 34. Capacity of foreign executors, administrators, and receivers to sue.-Foreign executors and administrators, under which term are included those appointed in other States than that where the court is held, cannot sue until they have taken out ancillary letters of administration. A foreign administra

tor may sue to recover damages for the death of his intestate

v.

4 Compare Attorney-General Tiler, 1 Dick. 378; Hoffman's Ch. Pr. 61; Story's Eq. Pl., § 64, and notes.

King v. McLean Asylum, 64 Fed. R. 331; supra, § 32; infra, § 367.

6 See Brown v. Clark, 3 Woodeson's Lect. 378; Daniell's Ch. Pr. 108.

7 In re Reynolds, Shelf on Lun.

417; Daniell's Ch. Pr. 108.

Owing's Case, 1 Bland (Md.), 370, 373;
Story's Eq. Pl., § 66.

10 Wartnaby v. Wartnaby, Jac. 377; Story's Eq. Pl., § 66.

11 Wartnaby v. Wartnaby, Jac. 377. § 34. 1 Fenwick v. Sears, 1 Cranch, 259; Dixon v. Ramsay, 3 Cranch, 319; Doe v. McFarland, 9 Cranch, 151; Kerr v. Moon, 9 Wheat. 565; Mason

8 In re Webb, Shelf on Lun. 417; v. Hartford, Providence & Fishkill Daniell's Ch. Pr. 108.

9 Wartnaby v. Wartnaby, Jac. 377;

R. Co., 19 Fed. R. 53; Duchesse d'Auby v. Porter, 41 Fed. R. 68; Johnson v.

under a statute of the State of his appointment. A foreign executor may sue without ancillary letters when the title is vested in him as trustee by devise. To what extent foreign receivers have the right to sue is unsettled. The better rule would seem to be, that they can always sue, no matter where, unless by so doing they would appropriate assets upon which domestic creditors would otherwise have a prior lien, or otherwise impugn the public policy of the State in which the action is brought. It has been said that when the receiver is the statutory successor of a corporation he can always sue in a foreign court; that where he has received a voluntary assignment of the assets of an insolvent, or has acquired title to the same through involuntary proceedings in insolvency or otherwise, he probably will be permitted to do so; but that where his appointment is purely interlocutory, as the hand of the court to complete the incidents of the litigation, he cannot.

6

General Trust Co. v. C., B. & Q. R. Co., 123 N. Y. 37, 47.

35. Who may be defendants to a bill in equity. All persons may be made defendants to a bill in equity except the Powers, 139 U. S. 156, 158. An act of Congress authorizes them to sue without ancillary letters in the District of Columbia. 24 St. at L. 431; Overby v. Gordon, 177 U. S. 214. The New Jersey statute to the same effect is followed by the Federal courts in that State. Hayes v. Pratt, 147 U. S. 557. The omission is cured by the issue of ancillary letters at any time before the hearing. Hodges v. Kimball (C. C. A.), 91 Fed. R. 845. See infra, § 164.

5 Rogers v. Riley, 80 Fed. R. 759; Hale v. Hardon, 89 Fed. R. 283; Falk v. Jones, 49 N. J. Eq. 484; Lobenheimer v. Wheeler, 45 N. J. Eq. 614; Metzner v. Berner, 98 Ind. 425; Comstock v. Fredrickson, 51 Minn. 350; Stoddard v. Lum, 159 N. Y. 265; Gilman v. Ketcham, 84 Wis. 60. Mr. High said in the third edition of his valuable work on Receivers (§ 241, p. 211): "It is believed that the doc

2 McCarty v. N. Y., L. E. & W. R. trine will ultimately be established Co., 62 Fed. R. 437.

giving to receivers the same rights

3 De Forest v. Thompson, 40 Fed. R. of action in all States of the Union 375.

4 In the following cases they were not allowed to sue: Booth v. Clark, 17 How. 322; Brigham v. Luddington, 12 Blatchf. 237; Olney v. Tanner, 10 Fed. R. 101; Hazard v. Durant, 19 Fed. R. 471, 476; s. c. on appeal, 21 Blatchf. 540; Ex parte Norwood, 3 Biss. 504; Hunt v. Jackson, 5 Blatchf. 349; Cuykendall v. Miles, 10 Fed. R. 342; Hurd v. Elizabeth, 41 N. J. Law (12 Vroom), 1; Toronto

with which they are invested in the State or jurisdiction in which they are appointed."

6 Hale v. Hardon, 89 Fed. R. 283, 288; Relfe v. Rundle, 103 U. S. 222; Rogers v. Riley, 80 Fed. R. 759.

7 Hale v. Hardon, 89 Fed. R. 283, 289. But see Hollander v. Hechheimer, 162 U. S. 327.

8 Booth v. Clark, 17 How. 322, 331; Hazard v. Durant, 19 Fed. R. 471; Hale v. Hardon, 89 Fed. R. 283, 289.

1

United States; foreign States and sovereigns for acts done in a political capacity; "one of the United States by citizens of another State, or by citizens or subjects of any foreign State;"3 receivers appointed by State courts without the leave of such courts; and foreign executors and administrators," unless they have assets within the jurisdiction of the court where the bill is filed. Whether a suit can be brought against the President of the United States is undecided."

4

36. The United States as a defendant.- The United States may waive their exemption from suit by statute,' but not by the act of any of their officers. When, however, the United States institute a suit, they waive their exemption so far as to allow a presentation by the defendant of any set-off, legal and equitable, to the extent of the demand made or property claimed; and when they proceed in rem, they open to consideration all claims and equities in regard to the property libeled. Where property of the United States is involved in a litigation to which they are but technically parties, the attorney for the district where the suit is brought may intervene by way of suggestion; and in such a case the court will either stay the suit or adjust its judgment according to the rights disclosed on the part of the government; but in such case no judgment can be entered against the United States for costs or divest them of their title to property.5 An action of ejectment has been sustained against government officers sued

§ 35. 1 Carr v. U. S., 98 U. S. 433.

2 Duke of Brunswick v. King of Hanover, 6 Beav. 1; Hullett v. King of Spain, 2 Bligh N. R. 31.

311th Amendment to Constitution. 4 Barton v. Barbour, 104 U. S. 126; Thompson v. Scott, 4 Dill. 508; Express Co. v. Railroad Co., 99 U. S. 191. 5 Vaughn v. Northrup, 15 Pet. 1; Story's Eq. Pl., § 179.

"Sandilands v. Innes, 3 Sim. 363; McNamara v. Dwyer, 7 Paige (N. Y.), 239; Campbell v. Tousey, 7 Cow. (N. Y.) 64.

7 See Mississippi v. Johnson, 4 Wall. 475; People ex rel. Broderick v. White, 156 N. Y. 136, and cases cited.

§ 36. 1U. S. v. Clarke, 8 Pet. 436; The Siren, 7 Wall. 152.

2 Carr v. U. S., 98 U. S. 433.

3 Mr. Justice Field in The Siren, 7 Wall. 152, 154. A more liberal rule against the government is suggested in Fifth Nat. Bank v. Long, 7 Biss. 502; Elliot v. Van Voorst, 3 Wall. Jr. 299; Briggs v. The Light Boats, 11 Allen (Mass.), 157; Stanley v. Schwalby, 162 U. S. 255, 272.

4 Stanley v. Schwalby, 147 U. S. 508, 513; The Exchange, 7 Cranch, 116, 147. But see Stanley v. Schwalby, 162 U. S. 255.

5 Stanley v. Schwalby, 162 U. S. 255, 272.

as individuals for land, such as a soldiers' cemetery and a pier' held by them for governmental purposes in the name of the United States; but the United States are not bound by any adjudication in such a suit. An officer of the United States, even a cabinet officer,10 may be enjoined from an act in violation of the complainant's rights, such as the revocation of the approval by his predecessor of the maps of a right of way over public lands, which is not discretionary and which is beyond the scope of his authority; but not from the infringement of a patent right in the use of government property." The only remedies of the patentee in such a case are a suit against the United States upon an implied contract for the use of the patent 12 and an action at common law against the infringing officers.13 Papers on file in a Department of the government cannot be obtained by replevin.1

The Tucker Act, passed in 1887, provides that in "all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, or for damages liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity or admiralty, if the United States were suable, the District Courts of the United States shall have concurrent jurisdiction with the Court of Claims as to all matters named in the preceding section, where the amount of the claim does not exceed one thousand dollars; and the Circuit Courts of the United States shall have such concurrent jurisdiction in all cases where

U. S. v. Lee, 106 U. S. 196; Stanley v. Schwalby, 147 U. S. 508; Tindal v. Wesley, 167 U. S. 204. But see Stanley v. Schwalby, 162 U. S. 255. 7 Scranton v. Wheeler (C. C. A.), 57 Fed. R. 803, 807.

8 U. S. v. Lee, 106 U. S. 196, 223; Stanley v. Schwalby, 147 U. S. 508; s. C., 162 U. S. 255, 272; Scranton v. Wheeler, 57 Fed. R. 803, 807; Tindal v. Wesley, 167 U. S. 204, 223.

9 Caldwell v. Robinson, 59 Fed. R. 653, 660.

10 Noble v. Union R. L. R. Co., 147 U. S. 165, 171.

11 Belknap v. Schild, 161 U. S. 10, 17; Cammeyer v. Newton, 94 U. S. 225, 235; infra, § 442.

12 U. S. v. Palmer, 128 U. S. 262; infra, § 442. But see Schillinger v. U. S., 155 U. S. 163.

13 Belknap v. Schild, 161 U. S. 10, 18; Cammeyer v. Newton, 94 U. S. 225, 235.

14 Brent v. Hagner, 5 Cranch, C. C. 71; 6 Op. A. G. 223.

6

the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars. All cases brought and tried under the provisions of this act shall be tried by the court without a jury; . . . provided, however, that nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as war claims,' or to hear and determine other claims which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear or determine the same." 15 By a later act, suits to recover fees, salary or compensation for official services are withdrawn from the jurisdiction of the Circuit and District Courts, and must be brought in the Court of Claims.16 The same courts are similarly given jurisdiction over "all set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the government,” in such courts. Under this act a suit may be brought to recover the purchase price paid upon void entries of public land; 18 by a contractor for extra work done by him under the direction of a government agent authorized to order the same, and for damages for an improper interference by such agent with the fulfillment of the contract.19 Where a suit was brought by an army officer against the United States for indemnity on account of a judgment recovered against and paid by him on account of his seizure and use of a boat for the benefit of the government, under the orders of his superior officer, it was held that, if the liability of the United States was in tort, no action would lie, and that if the liability was upon an implied contract, it arose when the seizure was made, not when the judgment was recovered.20 A public officer may sue the United States to recover money due him for the performance of his official acts. No suit will lie under this act to enforce spe

15 24 St. at L. 605.

16 30 St. at L. 495.

17 24 St. at L., ch. 359, § 1, p. 505. 18 Emmons v. U. S., 42 Fed R. 26. 19 Bowe v. U. S., 42 Fed. R. 761. 20 Carpenter v. U. S., 42 Fed. R. 264. In Junker v. Fobes, 45 Fed. R. 840, 841, Judge Toulmin said: "If the

cause of action, as stated in the declaration, arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty, growing out of the contract, it is ex delicto, and case." 21 U. S. v. McDermott, 140 U. S. 157.