New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-09-19
Union Bank Bonds-Jackson Rnilroad.

been sustained. We learn from the Jack
son Plot that last Monday morning. in the
Circuit Court, Judge George F. Brown de-
irered the following opinion in regard to
this celebrated case, the main issues of
which We gave few days since. The case
was continued to the January term Of the
court:
This cause has been argued and sub
mitted TO the court upon demurrer to the
defendants plea of set-ofts.
This suit was commenced in this court in
! AprIl, 1863, upon some ten bonds, executed
| by Getendants-the New Orleans, jackson.
and Great Northern Railroad Conpanv-in
| October, 1857, amounting in the aggregate
| to Slot,O ,OO0, being for money borrowed by
the defendants of the State and known as a
| part OF the ChickasaW school fund.
| The defendants having pleaded to the
| declaration, the cause was continued from
time to time, awaiting the action of the Su-
prame Court in another case of the same
| character therein pending, until the eight
eeDth of March, 1872, when the defendants.
| by leave of the court, filed an additional
| plea, setting up as set-On to the plaintiffs
| cause OF action q large number of bonds
amounting to $500 600, issued BY the State
of Mississippi in june 1888, and known as
the Union Bank bonds To this nlea 5he
causes:
l. Because the claims described in said
plea, and which constitute the subject mat
ter of the set-off pleaded, are not valid
claims against the State of Mississippi.
:. Because in a suit by the State of Mis-
sissippi no claim against her, though valid
one, can be set off against the demand of
said State.
3. Because at the time of the commence
ment of this action no suit could have been
brought by defendant against plaintiff on
the claims described in said plea, and, there
fore, they can not be set off in this action.
So far as respects the first assignment, the
counsel Tor the State do not rely upon it in
this stage OF the case, and hence the valid
ity of the Union Bank bonds, pleaded as a
set-otf is not involved in the determination
of the demurrer under consideration.
As to the other two causes ASST gned for
the demurrer, / will consider them jointly
1t is conceded that at the time1llis suit was
commenced the defendants, it owners of
the bonds pleaded as set-off, had no rem
edy in the State court to bring suit on them
against the State; but it is claimed by the
counsel for tho defendants that was not
necessary in order to make said bonds a
legal set-of to plaintiffs claim; that the
State, having voluntarily come into court,
must lay her robes Of sovereignty aside |
and stand in the forum upon an equality |
with all other suitors. This leads us to |
consider what is a set-Otf, and when and |
how it can be pleaded. 1t must be conceded |
that at common law the right to plead d |
set-otf was rot permitted, but parties hav- |
ing counter claims resoried to a-court Of |
equity to adjust them or the defendant |
could institute his cross action against the |
plaintiff; but during the reign OF George II. |
statutes were enacted giving TO defendants
the right TO plead set-0tfs Of any claim he
might have against the plaintiff, and upon
which he had the right of action against
the plaintiff; but this right was confined to
actions sounding in er-c0nh0ctW. These
English statutes have been introduced in
modified forms into this country, and now
constitute the law regulating seJ-otIS, or the
adjustment of mutual debts between parties
once in court.
Thus it will be observed. that the right to
plead set-Utfs By the defendants is conferred
and regulated entirely by statutory law.
If, then, the defendant in the case at bar
mas a right to plead the Union Bank bonds
as a set-of to the plaintiff S cause of action,
it must exist by positive statutory iawo
The bonds set up as an offset are not ger
main 80 the plaintiffs cause Of action, have
no connection with each other, but are dis
tnefo independent obligations. They then
cause ct cross action on the
part of the railroad company against the
State, and III order to enable the defendant
TO plead the same as a set-otf 20 the plaintiffs
cause Of action in this case The defendant
must nave had the iight to bring his &ction
against the State UpQp. the bonds at the
time this suit was institutedo We have
already seen that the defendants dad no.
such gight by the law of the land
But It IS insisted by the couaseP fOr.the
Getense that this remedial disability which
the defendants lab0red under at the com
of this suit has been removed
by an act of the Legislature, authorizing
10 N+,+x a..
courts at the seat OF government But we
are clearly Of opinion that 1t is not in the
power Of TIE Legislature 10 change the
relative rights OF suitors once in court. In
this instance however, in our humble .iudg-
nfent, the Legislature has undertaken no
such thing
1t must be admitted as a general PROPOSE
ton that u sovereign, independent State is
Tot capable OF being sued, except by her
own consent Now, what has the Legisla-
ure of the State OF Mississippi done in this
natter 1t has passed a law authorizing
Ill persons who may have claims against I
he State, and not paid on demand to in {
tituto suit against the State upon such t
sIaims in the courts of competent jurisdic I
ion at the scat of government, and said Y
Ourt shall proceed with such case in the j
ordinary way to Judgment; but no such s
or decree shall be enforced lex {
ept by an appropriation made by the t
on the petition of the per- {
on holding such Judgment or decree, etc."
hus making certain courts auxiliary to /
he legislative department Of the govern
GGnt, in determining the amount due on b
uch claims, precisely as the government of
he United States has done in creating the
}Ourt Of Claims. Can it be said that the
tate, who, through her legislative depart U
lent, has laid aside her sovereign capacity, Fl
nd. suffered herself to be brought into the G
Drum for a specific purpose shall thereby il
e subjected to a cross action by defend d
MT in a case wherein she is plaintiff in her II
Dvereign capacity. and which case is in no
'ay dependent upon such special lcgisla- p
on? Certainly not, in our judgment. a
To do so would be recognizing course a
f practice that would work manifest in. o
lstice, an inequality to such parties as l.
light have claims against the State, and n
LsO encourage system Of fraud against [
80 government. 1t would act as an incen- eli
We to parties who might have public mon G
rs in their hands to induce the State to | Ii
ring suit against them in order that they c
Ight plead as an offset some old depre- q
ated claim that might have hanging about te
the faint Of Reputation, and yet have vi
llity enough to play the part successfully F
signed it, and thus the defendant dis at
large in full the claim the State might have c
5ainst him, while another party might have S:
eritorious claim against the State, and "
1T being SO fortunate as to be sued by the tt
atc, would have to prosecute his claim
IT only through the court to Judgment, but B
so the Legislature, and take his chances OF
T an appropriation in order to obtain sat
faction. Such inequality Of right and &C
stice, whore the State is a party, ought D
1t to be recognized, | am thus led to the SO