The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1872-09-26
The State vs.. New Orleans, Jack
son and Great Northern
Railroad.
Demurrer Of Plaintiff against Union Bank
Bonds as Offset Sustained.
OPINION OF JUDGE BROWN.
SITE OF MISSISSIPPI.

STxTR OF MISSISSIPPI,
=. O., J. N.R.R.Co.} ~ . ~
This cause has been argued and submit
| ted to the Court upon demurrer to the de-
/ PENDANTS plea OF ser-offs.
| This snig was commenced in this Court in
| April, 1869, upon some ten Bonds, executed
| by the defendants-the New Orleans, Jack
son and Great Northern Railroad Company
/ in October, 1857, amounting in the aggre-
gate to Four Hundred Thousand Dollars
being for money borrowed by the defend
ants of the State. and known as part of the
Chickasaw School Fund.
The defendants having plead to the dec
laration the cause was continued from time
TO time awaiting the action of the Supreme
Court IN another case OF the same charac-
ter therein pending until the 18th of March,
1872, when the defendants by leave of Court
filed an additional plea setting up as set-oH
to the plaintiff s cause of action, large
number of Bonds amounting to Five Hun
dred Thousand Dollars, issued by the state
of Mississippi, in June, 1888, and known as
the Union Bank Bonds. To this plea the
plaintiff demurs, and assigns the following
causes:
lst- Because the claims described in said
plea. and which constitute the subject mat
ter of the set-OH pleaded are not valid
claims against the State of Mississippi.
I'd. 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.
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 cannot be set-oT in this action.
SO far respects the first assignment,
the counsel for the State do not rely upon
it in this stage of the case, and hence the
validity of the Union Bank Bonds plead as
a set-off, is not involved in the determine
ton of the demurrer under consideration.
As to the other two causes assigned for
the demurrer | will consider them jointly.
1t is conceded that at the time this suit was
commenced the defendants. If owners of the
Bonds, plead as set-otf, had no remedy in
the State Court to bring suit on them
against the State but it is claimed by the
counsel for the defendant that it was not ne
ce>sary in order to make said Bonds a legal
set-otf to plaintiff s claim. That the State,
having voluntarily come into Court, she
must lay her robes of sovereignty aside and
stand III the forum upon an equality with
all other suitOrs. This leads US to consider
what is set-of and when and how can it
be plead. 1t must be conceded that at COM
mon law the right to plead a set-of was not
permitted, but parties having counter claims
resorted to A Court of Equity to adjust
them, or the defendant could institute his
cross action against the plaintiff; but du-
ring the reign of George Ii, statutes were
enacted giving to defendants the right to
against the plaintiff and upon which he had
the right OF Nction against the plaintiff; bnt
this right was confined to actions sounding
in eX-contractu. These English statutes
have been introduced in modified forms
into this country, and now constitute the
law regulating set-ot1s, or the adjustment of
mutual debts between parties once i'll Court. |
Thus it will be observed that the right to
plead set-offs by the defendants is conferred
and regulated entirely by statutory law.
If then the defendant in the ease at bar,
has q right to plead the Union Bank Bonds
as set-off to the plaintiffs cause of action, |
it must exist by positive statutory law.
The Bonds set up as an offset are not
german to the plaintiffs cause of action,
have no connection with each other, but are
distinct, independent obligations. They
then constitute the cause of a cross-action |
on the part of the Railroad Company
against the State, and in order to enable the
defendant to plead the same as set-off to
the plaintiffs cause OF action in this case
the defendant must have had the right to
bring his action against the State upon the
bonds at the time this suit was instituted.
We have already seen the defendants had
no such right by the law of the land
But it is insisted by the counsel for the de- |
fenSe that this remedial disability which |
the defendants labored under at the COM
mencement of this suit, has been removed
by an Act of the Legislature, authorizing
suits 10 be brought against the State in the
Courts at the seat of government. But we
are clearly of opinion that it is not in the
power of the Legislature TO change the
relative rights of suitors once in Court. In
this instance, however, in our humble
judgment, The Legislature has undertaken
no such thing.
1t must be admitted as a general PROPOSE
ton, that sovereign, independent State is
not capable of being sued, except by her
own consent. Now, what has the Legisla
ture of the State of Mississippi done in this
matter? 1t has passed a law authorizing all
persons who may have claims against the
State, End not paid on demand, to institute
suit against the State, upon such claim in
the Courts of competent jurisdiction at the
seat of government, and said Court shall
proceed with such case in the ordinary way
to Judgment; but no such Judgment or de-
cree shall be enforced except by an appro-
priation made by the Legislature. on the
petition of the person holding such judg-
ment or decree, &c. thus making certain
Courts auxiliary to the Legislative depart
ment of the government, in determining
the amount due such claims, precisely
as the Government OF the United States has
done in creating the Court OF Claims. Can
it be said that the State, who through her
Legislative department, has lalo aside her
sovereign capacity, and suffered herself to
be brought into the forum for a specific
purpose, shall thereby be subjected to
cross-action by n defendant. in Il case where
in she is plaintiff in her sovereign capacity,
and which case IL in 10 way dependent upon
such special legislation: Certainly not i'll
our Judgment.
To do so, would be recognizing a course
OF practice that would work manifest injus-
tice, all inequality to such parties As might
have claims against the State, and also en-
courage a system of fraud against the Gov
eminent. It would act as an incentive to
parties who might have public monies in
their hands to induce the State to bring suit
against them in order that they might plead
as an offset some old deprecated claim
that might have hanging about it the faint
of reputation, and yet have vitality
enough to play the part successfully as
signed it, and thus the defendant discharge
in full the claim the State might have
against him, while another party might
have meritorious claim against the State,
and not being SO fortunate as to be sued by
the State would have TO prosecute his claim
not only through the Court to judgment but
also the Legislature, and take his chances
for an appropriation in order to obtain sat
isfaction. Such inequality of right aud
Justice, where the State is a party, ought
not TO be recognized. ! am thus led TO the
conclusion that the defendant in this case,
not having the right to institute suit
against the State aud prosecute the same to
Judgment and satisfaction upon said Union
Bank Bond, the same do net, in law, con-
stitute a legal set-off to the plaintiffs cause
of action. The demurrer to said plea must,
therefore, be sustained.