cific performance of a contract, nor one founded upon a claim which is not a claim for money." "The words 'hear and determine' are used four times,- once as applied to the Court of Claims, twice as applied to that court and to the Circuit and District Courts, and again as applied to any court, department, or commission. These words must be taken to be used in each instance in the same sense, and as implying an adjudication conclusive as between the parties, in the nature of a judgment or award. The proviso that nothing in this section. shall be construed as giving to either of the courts named in the act jurisdiction to hear and determine any claims which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same,' must be limited to a rejection of a claim, or an adverse report thereon, by a court, department, or commission which determines the rights of the parties, such as the approval by the Secretary of the Treasury of an account of expenses under the captured and abandoned property acts,23 or the decision of an international commission. Moreover, the Court of Claims, even before the passage of the Act of 1887, had jurisdiction of claims under an act of Congress or under a contract, and could therefore hear and determine claims for legal salaries or fees.24 We cannot believe that the Act of 1887, entitled 'An act to provide for the bringing of suits against the government of the United States,' the manifest scope and purpose of which are to extend the liability of the government to be sued, was intended to take away a jurisdiction already existing, and to give to the decisions of accounting officers an authority and effect which they never had before." 25 Consequently, the rejection of a claim by the First Comptroller of the Treasury, which is only conclusive within the Department of the Treasury, is not a bar to such a suit.26 The same act regulates the practice in such suits in the Circuit and District Courts as follows: The plaintiff must file a peti 22 U. S. v. Jones, 131 U. S. 1, 19. See chapter on Court of Claims, infra. 23 U. S. v. Johnson, 124 U. S. 236, 8 Sup. Ct. R. 446. 24 Meade v. U. S., 9 Wall. 691. 25 Meade v. U. S., 18 Ct. CL 281; S. C., 109 U. S. 146; Adams v. U. S., 20 Ct. Cl. 115; U. S. v. McDonald, 128 U. S. 471; U. S. v. Jones, 131 U. S. 1, 13. 26 U. S. v. Harmon, 147 U. S. 268; S. C. as Harrison v. U. S., 41 Fed. R. 560; U. S. v. Rand (C. C. A.), 53 Fed. R. 348; U. S. v. Jones, 131 U. S. 1, 13. tion duly verified with the clerk of the respective courts having jurisdiction of the case, and in the district where the plaintiff resides. Such petition shall set forth the full name and residence of the plaintiff, the nature of his claim, and a succinct statement of the facts upon which the claim is based, the money or any other thing claimed, or the damages sought to be recovered, and must pray the court for a judgment or decree based upon the facts and the law." The plaintiff must cause a copy of his petition, after filing the same, to be served upon the district attorney of the United States in the district wherein suit is brought, and must mail another copy by registered letter to the Attorney-General of the United States; and must thereupon file with the clerk of the court wherein the suit is instituted, an affidavit of such service and mailing.28 The United States appears by the district attorney, and is allowed sixty days, or as much more time as the court may in its discretion allow, within which to file a plea, answer, or demurrer; "and to file a notice of any counter-claim, set-off, claim for damages, or other demand or defense whatsoever, of the government in the premises: provided, that should the district attorney neglect or refuse to file the plea, answer, demurrer, or defense, as required, the plaintiff may proceed with the case under such rules as the court may adopt in the premises." But the plaintiff cannot have a judgment or decree in his favor unless he establishes the same by proof satisfactory to the court.29 In the Court of Claims the claimant must "in all cases fully set forth in his petition the claim, the action thereon in Congress or by any of the departments, if such action has been had; what persons are owners thereof or interested therein; when and upon what consideration such persons became so interested; that no assignment or transfer of said claim, or any part thereof, or interest therein, has been made, except as stated in the petition; that said claimant is justly entitled to the amount therein claimed from the United States, after allowing all just credits and offsets; that the claimant, and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne 27 Mr. Justice Gray, Colt, C. J., concurring, in Harmon v. U. S., 43 Fed. R. 560, 564, 565. 28 24 St. at L. 506. true allegiance to the government of the United States, and, whether a citizen or not, has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said government; and that he believes the facts as stated in said. petition to be true. And the said petition shall be verified by the affidavit of the claimant, his agent or attorney." 30 It is the duty of the court, acting under the Act of 1887, to cause a written opinion to be filed in the cause, "setting forth the specific findings by the court of the facts therein, and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon. If the suit be in equity or admiralty, the court shall proceed with the same according to the rules of such court." Judgment may be rendered in favor of the United States for the balance due upon a counterclaim.32 If the United States puts in issue the right of the plaintiff to recover, the court may in its discretion allow costs to the prevailing party, which, however, cannot exceed what is actually incurred for witnesses, "and for summoning the same, and fees paid to the clerk of the court."33 From the date of final judgment or decree against the government, interest is allowed "to be computed thereon, at the rate of four per centum per annum, until the time where an appropriation is made for the payment of the judgment or decree." It has been held that no interest can be allowed before judgment, except upon a contract which stipulates for interest. The plaintiff can appeal where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of the court below, under U. S. R. S., § 1089.36 Before the creation of the Circuit Courts of Appeal, an appeal or writ of error under this act was heard by and returnable to the Supreme Court, not to the Circuit Court.38 Since the Evarts Act, unless a question of jurisdiction, a constitutional question, or the construction of a treaty is involved, 30 U. S. R. S., § 1072. 31 24 St. at L., ch. 359, § 7, p. 506. 32 U. S. v. Saunders (C. C. A.), 79 Fed. R. 407; McElrath v. U. S., 102 U. S. 426. 33 24 St. at L. 508, § 15. See U. S. v. Harmon, 147 U. S. 268, 282. 424 St. at L. 507, § 10. 37 35 35 Int. B. & S. Dock Co. v. U. S., 60 Fed. R. 523, 527; U. S. R. S., § 1091. 36 24 St. at L. 506, § 9; U. S. R. S., § 707; U. S. v. Davis, 131 U. S. 36, 39; Strong v. U. S., 40 Fed. R. 183. 37 U. S. v. Davis, 131 U. S. 36. the Circuit Court of Appeals is the first court of review," except in cases of appeals from the Court of Claims." A judgment in a suit to recover official fees, salary or compensation is ordinarily reviewable by writ of error, not by appeal." A judgment in a suit to recover rent is reviewable by writ of error.42 Such appeal or writ of error should be taken within ninety days after the judgment is rendered." An appeal or writ of error may be taken, irrespective of the amount involved, by the district attorney, at the direction of the Attorney-General, within six months after the judgment or decree." Otherwise, the practice in all courts in suits brought under this statute is similar to that in other suits, with "such additions and modifications as said courts may adopt." 45 A recent act of Congress grants to the Circuit Courts jurisdiction of suits in equity brought by any tenant in common or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suit to be brought in the Circuit Court of the district in which such land is situated. It further provides: "That when such suit is brought by any person owning an undivided interest in land, other than the United States against the United States alone and against the United States and any other of such owners, service shall be made on the United States by causing a copy of the bill filed to be served upon the district attorney of the district wherein the suit is brought, or by mailing a copy of the same by registered letter to the Attorney-General of the United States; and the complainant in such bill shall file with the clerk of the court in which such bill is filed an affidavit of such service and of the mailing of such letter. It shall be the duty of the district attorney upon whom service of the bill is made as aforesaid to appear and defend the interests of the government, and within sixty days after service upon him as 39 U. S. v. Morgan (C. C. A.), 64 Fed. R. 4. 40 U. S. R. S., § 707. 41 U. S. v. Harsha, 172 U. S. 567; U. S. v. Ady (C. C. A.), 76 Fed. R. 359; U. S. v. Tinsley (C. C. A.), 75 Fed. R. 369; U. S. v. Morgan (C. C. A.), 64 Fed. R. 4; U. S. v. Fletcher (C. C. A.), 60 Fed. R. 53. 42 Chase v. U. S., 155 U. S. 489. 43 24 St. at L. 506, § 9; U. S. R. S., 708. But see U. S. v. Davis, 131 U. S. 36, 39. 44 24 St. at L., ch. 359, 507, § 10; U. S. v. Davis, 131 U. S. 36, 39; U. S. v. Yukers, 60 Fed. R. 641. 45 24 St. at L., ch. 359, 506, § 4 hereinabove prescribed, unless the time shall be enlarged by order of the court made in the case, to file a plea, answer or demurrer on the part of the government, and the cause shall proceed as other cases for partition by courts of equity, and in making such partition the court shall be governed by the same principles of equity that control courts of equity in partition proceedings between private persons. Whenever in such suit the court shall order a sale of the property, or any part thereof, the Attorney-General of the United States may, in his discretion, bid for the same in behalf of the United States. And if the United States shall be the purchaser, the amount of the purchase-money shall be paid from the treasury of the United States upon a warrant drawn by the Secretary of the Treasury on the requisition of the Attorney-General." 46 The § 37. Liability of States to suits by private persons.Under the Constitution of the United States as originally adopted, it was provided that the judicial power of the United States should extend to controversies "between a State and citizens of another State." This was held to subject a State to liability to an action by a citizen of another State. decision was opposed to the opinions of Marshall and others, as expressed in the conventions which ratified the Constitution,' and was repugnant to the feelings of the people. Consequently, the Eleventh Amendment was adopted. This enacted that "the Judicial Power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any Foreign State.” It has effectually prevented the successful prosecution by a private individual of a suit against a State as a party defendant, even a suit against the plaintiff's own State upon a claim founded upon the Constitution of the United States. Cases have, however, often arisen where, although a State was not a formal party, yet it had rights which it claimed would be af fected by the determination of the suit before the court. To 46 30 St. at L. 339. 2 Chisholm v. Georgia, 2 Dall. 419. See Elliott's Debates. In Hans v. Louisiana, 134 U. S. 1, Bradley, J., speaking for the court, said that Chisholm v. Georgia was erroneously decided. 4 Hans v. Louisiana, 134 U. S. 1. A corporation chartered by Congress cannot sue a State. Smith v. Reeves, 178 U. S. 436. |