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of justice and according to the intent of the law, until all liabilities to creditors have been honestly met and paid. If there are claims made which the directors of the association are not willing to acknowledge as just debts, there is nothing in the statute which is inconsistent with the right of the claimant to obtain a judicial determination of the controversy by pro

may be chosen, who may sue and be sued in the name of the association in the conduct of the final liquidation. Of course, when insolvency is declared, the corporation is incapacitated from doing any new business. It has ceased to be a going concern, but it still survives for the purpose of the discharge of its liabilities and the final distribution of its remaining assets when that has been accom-cess against the association, nor with that of plished. No refinement of construction leads to any other result, and numerous decisious preclude further discussion.

the association to collect by suit debts due to it. It is clearly, we think, the intention of the law that it should continue to exist as a person in law capable of suing and being sued, until its affairs and business are completely settled. The proceeding prescribed by the law seems to resemble, not the technical disso

to the common law consequences, but rather that of the dissolution of a copartnership, which, nevertheless, continues to subsist for the purpose of liquidation and winding up of its business."

"

In National Pahquoque Bank v. First Nat. Bank, 36 Conn. 325, 4 Am. Rep. 80, a national bank having failed and a receiver been appointed, the supreme court of errors of Connecticut, in a well-considered opinion, held that|lution of a corporation, without any saving as the winding up of the corporation as provided did not put an end to its existence so as to af8] fect the rights of creditors to enforce their claims or determine their validity by suit or otherwise; that there was nothing in the national banking act which justified the claim that the franchise was transferred to the receiver in the authority conferred on him to take possession of the assets; and that the court was unable to discover "by what mode of operation known in the law the proceedings in question can produce that absolute and technical dissolution of a corporation which is produced by a judgment for forfeiture or by a legislative repeal, and bars a suit by a creditor." Judgment was given against the insolvent bank and that judgment affirmed by this court in First Nat. Bank v. National Pahquioque Bank, 81 U. S. 14 Wall. 383 [20: 840], where it was said: "None of these proceed ings, however, support the theory that the association ceased to exist when the receiver was appointed, nor at any time before the assets of the association are fully administered, and the balance, if any, is paid to the owners of the stock or their legal representatives."

In Central Nat. Bank v. Connecticut Mut. L. Ins. Co. 104 U. S. 54 [26: 693], it was held that a national bank in voluntary liquidation is not thereby dissolved as a corporation, but may sue and be sued by name for the purpose of winding up its business; and Mr. Justice Matthews, delivering the opinion of the court, said: "It is to be observed that the sections under which the proceedings took place which, it is claimed, put an end to the corporate existence of the bank, do not refer, in terms, to a dissolution of the corporation, and there is nothing in the language which suggests it, in the technical sense in which it is used here as a defense. The association goes into liquidation and is closed. It is required to give notice that it is closing up its affairs, and, in order to do so completely and effectually, to notify its creditors to present their claims for payment. And the redemption of its bonds given to secure the payment of its circulating notes, by the required deposit of money in the treasury, is limited in its effect to a discharge of the association and its shareholders from all liability upon its circulating notes. The very purpose of the liquidation provided for is to pay the debts of 9the corporation, that the *remainder of the assets, being reduced to money, may be distributed among the stockholders. That distribution cannot take place, with any show

And in Rosenblalt v. Johnston, 104 U. S. 462, 463 [26: 832, 833], Mr. Chief Justice Waite speaking for the court, referring to the assets and property of an insolvent national bank, remarked: "Such property and assets, in legal contemplation, still belong to the bank, though in the hands of a receiver, to be administered under the law. The bank did not cease to exist on the appointment of the receiver. Its corporate capacity continues until its affairs are finally wound up and its assets distributed."

It is further urged that the claim was not ar existing demand at the time of the suspension of the bank and could not be proved up for participation in the distribution of the assets. What effect, if any, this might have on the mere recovery of judgment, and the questions often arising in respect of discharges in bank. ruptcy or insolvency, or of proceedings against insolvent decedent's estates as to the postponement of belated claims to subsequently discovered assets, the state courts did not find it necessary to consider, as they were of opinion that the liability was an existing demand.

The appellate court said: *The lease in[10 question was a lawful contract and engagement for the bank to make. The first monthly instalment of rent was due under it nine days before the bank suspended. By its terms the default that was made by the bank in the nonpayment of rent on May 1st gave the right to the appellant to re-enter and terminate the lease. The damages were then matured and could have been at once sued for, or appellant could defer its suit, as it did, until, by a reletting of the premises, the extent of damages had been made certain. That they were unliquidated did not render them contingent. The contingency, default in payment of rent, had happened. After that the damages were a mere matter of calculation." And a similar view was thus expressed by the supreme court: "The money was not paid, and there was then a breach of the contract for which an action might have been maintained, and this occurred nine days before insolvency. There is therefore no foundation for the position of counsel that the claim of appellee was not an existing demand at the time the bank suspended. The amount of damages may not have been as large

on the first day of May, 1893, as at a later period, but on that date there was a breach of the contract and a right of action for such breach."

Clearly the conclusion thus reached involved no denial of a title, right, privilege, or immunity specially set up or claimed under the laws of the United States, and, as already seen, the only Federal question arising was rightly decided.

Judgment affirmed.

GEORGE E. BELKNAP ET AL., Appts.,

v.

GEORGE F. SCHILD.

(See S. C. Reporter's ed. 10-29).

Infringement of patent-officers of the United

States-injunction-equity suit.

1. Officers or agents of the United States, although acting under its order, are personally liable to be

sued for their own infringement of a patent. 2. Officers and agents of the United States are not

exempt from liability for their own infringement of a patent by the fact that it was not used by them for their own benefit, but for the benefit of the United States in a navy yard. 8. An injunction against infringement of a patent by the use of a caisson gate which is a part of a dry dock in a navy yard, put in place by, and the property of, the United States, and used for the public benefit, cannot be granted in an action against officers and agents of the government, as they have no individual interest in the controversy, but the relief is in fact asked against the

United States.

4. A recovery of profits for the infringement of a patent cannot be had in a suit in equity against officers and agents of the United States, when the defendants made no profits from the use of plaintiff's invention, but the only profits from the use thereof accrued to the United States. The proper remedy of plaintiff against defendants is an action at law for the damages.

[No. 22.]

George F. Schild, against the defendants, George E. Belknap et al., in a suit in equity for infringement of letters patent granted by the United States to the plaintiff for an improvement in caisson gates. Reversed, and case remanded with directions to dismiss without prejudice, etc.

Statement by Mr. Justice Gray:

This was a bill in equity, filed January 20, 1887, in the circuit court of the United States for the northern district of California, by George Schild against George E. Belknap, Joseph Feaster, Christopher C. Wolcott, and Jesse Diamond, for an infringement of letters patent granted by the United States to the plaintiff on October 23, 1883, for an improvement in caisson gates.

The bill alleged that the defendants, with full knowledge and in violation of the plaintiff's exclusive right, manufactured and used, and intended to continue to use, such caisson gates in the state of California; and that he had the Union Iron Works of San Francisco, and brought an action in the same court against on the trial of that action, and after he had waived other than nominal damages, recovered & verdict in the sum of $1, in August, 1886, and the validity of his patent and the fact of infringement were thereby established.

The bill prayed that the defendants be decreed to account for and pay over to the plaintiff all such gains and profits as *had or [12 might have accrued to them from purchasing or making or using such improved caisson gates; that any further damages sustained by the plaintiff by reason of the defendants' infringement be assessed and ordered to be paid; that the defendants be restrained by injunction from making or using caisson gates containing the patented improvement; that the caisson gates containing that improvement and so manufactured or purchased or in any manner obtained by the defendants, and now in their possession, be destroyed or delivered up to the plaintiff; and for further relief.

The defendants filed a plea to the whole bill (called in the record a "plea in abatement"), alleging that the court "ought not to take cogniz

Argued January 21, 22, 1895. Decided Feb-ance of or sustain the aforesaid action," for that

ruary 3, 1896.

the defendant Belknap was a commodore in the United States Navy, and commandant of the

APPEAL from a decree of the Circuit Court United States Navy Yard at Mare Island,

of the United States for the Northern District of California in favor of the plaintiff,

NOTE. For what patents are granted; when declared void,-see note to Evans v. Eaton, 4:433.

As to patentability of inventions, see notes to Thompson v. Boisselier, 29: 76; and Corning v. Burden, 14: 683.

As to abandonment of invention, see note to Pennock v. Dialogue, 7: 327.

As to distinction between inventions of mechanism, articles, or products and processes; when latter patented, see note to Corning v. Burden, 14: 683.

As to including process and product in same patent; separate patents therefor,-see note to Evans v. Eaton, 4: 433.

California; that the defendants Wolcott, Feaster, and Diamond were, respectively, a

As to when assignee may sue for infringement; when patentee must; when they must join, see note to Wilson v. Rousseau, 11:1141.

As to damages for infringement of patent; treble damages, see note to Hogg v. Emerson, 13: 824. As to anticipation of patents; prior patents and publications; application and issue; claims and specifications,-sce note to Leggett v. Standard Oil Co. 37: 737.

As to patents for designs, when valid, see note to Smith v. Whitman Saddle Co. 37: 606.

As ts what constitutes infringement of patent; similarity of devices; designs; combinations; maAs to what reissue may cover, see note to O'Reilly chines; construction of patent,-see note to Royer v. ▼. Morse, 14: 601.

As to assignment before issuing and reissuing patent; recording; when assignment transfers extended terms, see note to Gayler v. Wilder, 13:504.

Coupe, 36: 1073.

civil engineer in the Navy, an assistant naval constructor in the Navy, and an employee of the United States at Mare Island; that the only caisson gate which either of the defendants had any relation with, control over, or use of, within the state of California, was one constructed, manufactured, and used by the government of the United States and for their use and benefit at the navy yard at Mare Island, and was there built by the Union Iron Works, in pursuance of plans and specifications furnished by the Bureau of Yards and Docks, -a board in the naval service of the United States, -and was delivered by the Union Iron Works to the United States, and used by the United States in the dry dock of that navy yard; and that neither the defendants, nor either of them, made or constructed the caisson gate in question, or used it for their own use and benefit, or ever had, or pretended to have, any interest in or claim upon it; but that they only operated and used it as the officers, servants, and employees of the United States, as a part of the navy yard, and for public uses of the United States, in the exercise of their sovereign and constitutional powers.

The Attorney General of the United States, appearing for this purpose only, filed a sugges13]tion (called in the record a *"plea to the jurisdiction") in which he stated that the caisson gate in question was planned and constructed by the United States, and ever since its construction had been in the possession, control, and use of the United States at the navy yard at Mare Island, and was operated at the dry dock in the navy yard for naval purposes and the public defense, in the building and repair ing of ships for the Navy of the United States: that the United States, through their officers and agents, charged with the possession, control, and operation of that navy yard, had at all times been in possession, control, and operation of the caisson gate as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers; and that the defendants, and each of them, never had anything to do with the construction, use, or operation of the gate, or made any claim of right, title, possession, control, or use of it, other than as officers and agents of the United States, and in obedience to orders of the naval department of the government; and therefore, without submitting the rights of the United States to the jurisdiction of the court, but insisting that the court has no jurisdiction of the controversy, for that the said caisson gate and its use now is and at all times has been the property of the United States," moved that the bill be dismissed, and all proceedings stayed and set aside.

The case having been submitted to the court upon the plea of the defendants, and the suggestion of the Attorney General, both were overruled.

The defendants, Belknap, Feaster, Wolcott, and Diamond, then filed an answer, admitting the grant of the letters patent, denying the infringement, setting forth affirmatively the mat ters stated in their former plea, and alleging that neither these defendants nor the United States were parties to the action brought by the plaintiff against the Union Iron works, or estopped by the judgment therein.

A general replication was filed, and evidence was taken by which it appeared that the va lidity of the plaintiff's patent, and its infringement by the defendants, were subjects of conflicting testimony; that Mare Island and the works and dock *thereon, including the [14 caisson gate, belonged to the United States, and were held and occupied for them by their officers and employees; that the defendants respectively held the positions stated in their former plea and had no interest in the caisson gate, and nothing to do with it beyond operat ing it under the direction of the United States; that the gate was built in 1884, without any agreement or license of the plaintiff, by the Union Iron Works under its contract with the United States, and according to plans and specifications furnished by the Bureau of Yards and Docks, and Wolcott simply inspected the materials and workmanship, as the work progressed, to see if they were according to the contract; and that the gate had since been used by the United States as part of the dock in the navy yard aforesaid.

After a bearing upon pleadings and proofs, the court made an interlocutory decree adjudging that the patent was valid and had been infringed by the defendants; referring the case to a master to take an account of the number of caisson gates made or used by the defendants, or either of them, in violation of the patent, and also of the gains, profits, and advantages arising or accruing to the defendants or either of them, and of the damages sustained by the plaintiff; and ordering a perpetual injunction against the defendants and each of them, "and their and each of their agents, servants, clerks, and workmen, and all persons claiming or holding under or through them or either of them."

The master reported that one caisson gate to the dock in the navy yard at Mare Island, for the making and using of which the defendants had been adjudged to have infringed the plaintiff's patent, had been made upon plans furnished by the plaintiff and modified by the government officials, and put in use in 1884; that the cost of this gate was $60,000, and the cost of the cheapest practicable gate, constructed on any other plan known to the defendants, would be at least $100,000, and therefore the gains, profits, and advantages, which had arisen and accrued to the defendants from infringing the plaintiff's patent, amounted to $40,000; and that no damages, in addition to such gains, profits, and advantages, had been proved.

*The court overruled exceptions taken [15 by the defendants to the master's report, confirmed bis report, and entered a final decree for the plaintiff for the sum of $40,000, with interest and costs. The defendants appealed to this court.

Mr. Holmes Conrad, Assistant Attorney General, for appellants.

Messrs. J. H. Miller and L. T. Michener for appellee.

Mr. Justice Gray delivered the opinion of the court:

A recapitulation of the principles heretofore affirmed by this court, touching the liability of

the United States and of their officers and agents to suit in the judicial tribunals, will go far towards disposing of this case.

It should be premised that our law differs from that of England as to the right of the government to use, without compensation, an invention for which it has granted letters patent.

In England, the grant of a patent for an invention is considered as simply an exercise of the royal prerogative, and not to be construed as precluding the Crown from using the invention at its pleasure; and therefore a petition of right cannot be maintained against the Crown for using a patented invention; although a private person or corporation that has contracted to supply the government with articles embodying the invention may be sued for infringement of the patent. Feather v. Queen, 6 Best & S. 257; Dixon v. London Small Arms Co. L. R. 10 Q. B. 130, and L. R. 1 App. Cas. 632. But, in this country, letters patent for in ventions are not granted in the exercise of prerogative, or as a matter of favor, but under U. S. Const. art. 1, § 8, which gives Congress power "to promote the progress of science and useful arts, by securing, for limited terms, to authors and inventors the exclusive right to their respective writings and discoveries." The 16] patent act provides that *every patent shall contain a grant to the patentee, his heirs and assigns, for a certain term of years, of "the exclusive right to make. use, and vend the invention or discovery throughout the United States." U. S. Rev. Stat. § 4884. And this court has repeatedly and uniformly declared that the United States have no more right than any private person to use a patented invention without license of the patentee or making compensation to him. United States v. Burns, 79 U. S. 12 Wall. 246, 252 [20: 388, 3891; Cammeyer v. Newton. 94 U. S. 225, 235 [24: 72, 75]; James v. Campbell, 104 U. S. 356, 358 [26: 786, 787]; Hollister v. Benedict & B. Mfg. Co. 113 U. S. 59, 67 [28: 901, 903]; United States v. Palmer, 128 U. S. 262," 270–272 [32: 442, 444, 445].

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ceedings must bring his case within the authority of some act of Congress. Such is the language of this court in United States v. Clarke, 33 U. S. 8 Pet. 444 [8: 1004]. The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is no distinction between suits against the govern ment directly, and suits *against its prop. [17 erty." The Siren v. United States (“The Siren”), 74 U. S. 7 Wall. 152–154 [19: 129, 130]. So much of this statement as regards suits against the United States or against their property was repeated by the present Chief Justice in the recent case of Stanley v. Schwalby, 147 U. S. 508, 512 [37: 259, 261].

It necessarily follows that, unless expressly permitted by act of Congress, no injunction can be granted against the United States. United States v. McLemore, 45 U. S. 4 How. 286 [11: 977]; Hill v. United States, 50 U. S. 9 How. 286 [13: 185]; Case v. Terrell, 78 U. S. 11 Wall. 199 [20: 134].

The United States, by successive acts of Congress, have consented to be sued upon their contracts, either in the court of claims, or in a circuit or district court of the United States. Acts of February 24, 1855 (10 Stat. at L. 612, chap. 122, § 1); March 3, 1863 (12 Stat. at L. 765, chap. 92, § 2; Rev. Stat. § 1059); Act of March 3, 1887 (24 Stat. at L. 505, chap. 359, SS 1, 2); United States v. Jones, 131 U. S. 1, 15, 16 [33: 90, 91]. The United States may ac cordingly be sued by a patentee for their use of his invention under à contract made with him by the United States or by their authorized officers. United States v. Burns, 79 U. S. 12 Wall. 246 [20: 388]: United States v. Pmer, 128 U. S. 262 [32: 442]; United States v Berdin Firearms Mfg. Co. 156 U. S. 552 [39: 530].

But the United States have not consente to be liable to suits, founded in tort, for wrongs done by their officers, though in the discurge of their official duties. Gibbons v. United States, 75 U. S. 8 Wall. 269 [19:53]; Morgan v. United States, 81 U. S. 14 Wall. 81, 534 [20: 738, 759]; Langford v. United States, 101 U. S. 341 [25: 1010]; United States v. Jones, 131 U. S. 1, 16, 18 [33: 90, 91]; German Bank of Memphis v. United States. 148 U. S. 573, 579, 580 [37: 564, 568, 569]; Hill v. United States, 149 U. S. 593 [37: 862]. The United States, therefore, are not liable to a suit for an infringement of a patent, that being an action sounding in tort. Schillinger v. United States, 155 U. S. 163 [39: 108]: United States v. Berdan Firearms Mfg. Co. 156 U. S. 552 [39: 530].

The United States, however, like all sover eigns, cannot be impleaded in a judicial tribunal), except so far as they have consented to be sued. This doctrine has been affirmed by this court in cases too numerous to be cited: and was clearly stated by Mr. Justice Field, delivering judgment in the case of The Siren, as follows: "It is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy, the inconvenience and danger which would follow from any different rule. It is obvious that the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government. The exemption from direct suit is therefore without exception. This *But the exemption of the United States[18 doctrine of the common law is equally appli- from judicial process does not protect their ofcable to the supreme authority of the nation, ficers and agents, civil or military, in time of the United States. They cannot be subjected peace, from being personally liable to an action to legal proceedings at law or in equity without of tort by a private person whose rights of prop. their consent; and whoever institutes such pro-erty they have wrongfully invaded or injured,

A public officer is not personally liable on a contract, although under his own band and seal, made by him in the line of his duty, by legal authority, and on account of the govern ment, and enuring to its benefit, and not to his own. Hodgson v. Dexter, 5 U. S. 1 Cranch, 345 [2: 130]. See also Macbeath v. Haldimand, 1 T. R. 172: Unwin v. Wolseley, 1 T. R. 674; Palmer v. Hutchinson, L. R. 6 App. Cas. 619.

The extent to which officers or agents of the government may be restrained by injunction from doing unlawful acts to the prejudice of private rights is illustrated by the decisions of this court regarding injunctions from the courts of the United States to officers and agents of a state, which, by the Constitution of the United States, is as exempt as the United States are from private suit. Hans v. Louisiana, 134 U. S. 1 [33: 842].

even by authority of the United States. Little | defense is that he has acted under the orders Barreme, 6 U. s. 2 Cranch, 170 [2: 243]; Bates of the government. In these cases he is not v. Clark, 95 U. S. 204 [24: 471]. Such officer. sued as, or because he is, the officer of the or agents, although acting under order of the government, but as an individual, and the United States, are therefore personally liable court is not ousted of jurisdiction because he to be sued for their own infringement of a asserts his authority as such officer. To make patent. Cammeyer v. Newton, 94 U. S. 225, out his defense he must show that his authority 235 [24: 72, 75]. See also Feather v. Queen, 6 was sufficient in law to protect him." After Best & S. 257, 297; Vavasseur v. Krupp, L. R. | citing several cases to this point he added: 9 Ch. Div. 351, 355, 358. "To this class belongs also the recent case of United States v. Lee, 106 U. S. 196 [27: 171], for the action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment. And the defendants Strong and Kaufman, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and therefore insufficient as a defense. The judg In a suit to which the state is neither for- ment in that case did not conclude the United mally nor really a party, its officers, although States, as the opinion carefully stated, but held acting by its order and for its benefit, may be the officers liable as unauthorized trespassers, restrained by injunction, when the remedy at and turned them out of their unlawful posseslaw is inadequate, from doing positive acts for sion." Cunningham v. Macon & B. R. Co. 109 which they are personally and individually lia- | U. S. 446, 452 [27. 922, 994]. ble, taking or injuring the plaintiff's property, contrary to a plain official duty requiring no exercise of discretion and in violationof the Constitution or laws of the United States. Osborn v. Bank of United States, 22 U. S. 9 Wheat. 738, 868, 871 [6: 204, 235, 236]; Louisiana Board of Liquidation v. McComb, 92 U. S. 531, 541 [23: 623,628]; Allen v. Baltimore & O. R. Co. 114 U. S. 311 [29: 200]; Pennoyer v. McConnaughy, 140 U. S. 1 [35: 363].

But no injunction can be issued against officers of a state, to restrain or control the use of property already in the possession of the state, or money in its treasury when the suit is commenced; or to compel the state to perform its obligations; or where the state has other wise such an interest in the object of the suit as to be a necessary party. Louisiana v. Jumel, and Elliott v. Wiltz, 107 U. S. 711, 720-728 [27: 448, 451-454]; Cunningham v. Macon & B. R. Co. 109 U. S. 446, 454-457 [27: 992, 995, 19] 996]; Hagood v.*Southern, 117 U. S. 52, 70 [29: 805, 811]; Re Ayers, 123 U. S. 443 [31: 216]; North Carolina v. Temple, 134 U. S. 22 [33: 849]; McGahey v. Virginia, 135 U. S. 662, 684 [34: 304, 312).

In support of the decree below much reliance was placed upon United States v. Lee, 106 U. S. 196 [27: 171]; Stanley v. Schwalby, 147 U. S. 508 [37: 259; and Poindexter v. Greenhow ("Virginia Coupon Cases"), 114 U. S. 270 [29: 185].

In United States v. Lee the decision of the court, speaking by Mr. Justice Miller, was that the owner of land held and occupied by the United States for public uses, but under a defective title, might maintain against the offi cers in possession of the land under authority of the United States. an action of ejectment, notwithstanding the interposition of the Attor ney General in behalf of the United States. A year afterwards, Mr. Justice Miller, again delivering the opinion of the court, after mentioning a different class of cases, said: "An other class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property to which his

This statement of the decision in United States v. Lee, supra, was *repeated in Stan-[20 ley v. Schwalby, 147 U. S. 508 [37: 259], in which the point decided was that the statute of limitations or adverse possession might be pleaded in defense of an action of trespass to try title against officers of the United States. 147 U. S. 508, 518 [37: 259, 263].

In Cunningham v. Macon & B. R. Co., above cited, a bill in equity to foreclose a second mortgage of a railroad, and to set aside as invalid a sale and conveyance of the road to the state of Georgia under a foreclosure of the first mortgage, was filed by holders of bonds secured by the second mortgage against the governor and the treasurer of the state, as well as against the railroad company and its directors; and was ordered to be dismissed for want of jurisdiction, because, as was said in the opinion, "it may be accepted as a point of departure unquestioned, that neither a state nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a state may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on that court by the Constitution. This principle is conceded in all the cases, and whenever it can be clearly seen that the state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. In the case now under consideration the state of Georgia is an indispensable party. It is, in fact, the only proper defendant in the case. No one sued has any personal interest in the matter, or any official authority to grant the relief asked. No foreclosure suit can be sustained without the state, because she has the legal title to the property, and a purchaser under a foreclosure decree would get no title in the absence of the state. The state is in the actual possession of the property, and the court can deliver no possession to the purchaser. The entire interest adverse to plaintiff in this suit is the interest of

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