COUNSEL: Sir Roundell Palmer, Q.C., Mr. G. M. Giffard, Q.C., Mr. Druce, Q.C., and Mr. Wickens, for the Plaintiffs
Mr. W. M. James, Q.C., Mr. Kay, Q.C., and Mr. C. Hall, for the Defendants

SOLICITORS: For the Plaintiffs: Messrs. Sharpe, Parkers, & Jackson, agents for Messrs. Harvey & Co., Liverpool.
For the Defendants: Messrs. Gregory, Rowcliffes, & Rawle, agents for Messrs. Hull & Co., Liverpool.

JUDGES: Lord Chelmsford, L.C., Sir G.J. Turner and Lord Cairns, L. JJ.

DATES: 1867 May 29; 1867 June 1, 17
 

Jurisdiction—Foreign State—Corporate Plaintiff—Pleading—Cross Bill—Discovery.

A foreign sovereign state adopting the republican form of government, and recognised by the government of Her Majesty, can sue in the Courts of Her Majesty in its own name so recognised.

Such a state is not bound to sue in the name of any officer of the government, or to join as co-Plaintiff any such officer on whom process may be served, and who may be called upon to give discovery upon a cross bill.

Per LORD CHANCELLOR and LORD CAIRNS, L.J.:—The Court may stay proceedings in the original suit, until the means of discovery are secured in the cross suit.

Colombian Government v. Rothschild [FN1] distinguished.

FN1 1 Sim. 94.

Order of Wood, V.C., reversed.

THE bill in this suit was filed by “The Unites States of America” as Plaintiffs, and alleged that in 1861 divers persons who owed allegiance to the Plaintiffs rose in rebellion, and formed a political organization under the style of the “Government of the Confederate States.” That the so-called Confederate States possessed themselves of divers moneys, goods, ships, and treasure, the property of the Plaintiffs, and of other moneys and goods. That the Defendants were merchants at Liverpool, carrying on business under the style of Fraser, Trenholm, & Co. That certain cotton acquired as aforesaid by the so-called Confederate States had been consigned to the Defendants by persons who were, in fact, agents for the so-called Confederate States. That the Defendants were agents for the so-called Confederate States in England, and that large quantities of goods were so consigned to them. That in 1865 the said rebellion was suppressed, and the said political organization ceased to exist, and the several persons who had formed the so-called Confederate States had since submitted to the government of the Plaintiffs, and all the property held by the government of the so-called Confederate States, including all moneys, goods, and ships in the power of the Defendants, had vested in the Plaintiffs, and were now their absolute property. And the bill prayed that an [*583] account might be taken of moneys, and goods, and ships, which had at any time come to the hands or power of the Defendants as agents as aforesaid, and that the Defendants might be ordered to pay to the Plaintiffs the moneys which, on taking such account, might be found to be in the hands or power of the Defendants, and to deliver up the goods and cotton in their hands as aforesaid.

To this bill the Defendants demurred generally, objecting that the bill ought to put forward the President of the United States, or some state officer, upon whom process might be served by the Defendants, and who might answer a cross bill. The demurrer was allowed by the Vice-Chancellor Wood on the 8th of March [FN2] and the Plaintiffs appealed.

FN2 Law Rep. 3 Eq. 724.

Sir Roundell Palmer, Q.C., Mr. G. M. Giffard, Q.C., Mr. Druce, Q.C., and Mr. Wickens, for the Plaintiffs:—

The demurrer was allowed on the ground that the United States, being a republic, could not sue in their own name without joining as Plaintiff some public officer; but this proposition is unreasonable: United States v. Prioleau [FN3]; King of Two Sicilies v. Willcox [FN4]. A state can sue under the name by which it is recognised by the Queen, and the refusal to allow it would be a casus belli. We maintain that this bill is right in form. The ambassador could not sue: Hullett v. Ring of Spain [FN5]. The right to discovery on a cross bill is a notion peculiar to Chancery, and in all the other Courts of this country the United States could certainly sue in the name under which the Queen treats with them: Emperor of Austria v. Day [FN6]; Story’s Equity Pleading [FN7]. This is also the only proper form of bill, and it would be improper to join any one as Plaintiff: King of Spain v. Machado [FN8], and such a bill would, under the old practice, have been demurrable: Schneider v. Lizardi [FN9]. The bill in Colombian Government v. Rothschild [FN10] was wrong, because there was no such state as the “Government of Colombia,” for it was the “State of Colombia,” [*584] and, moreover, Don José, who was joined as Plaintiff, was an agent. Why should a republic be in a different position from that of a sovereign prince?

FN3 2 H. & M. 559; Law Rep. 2 Eq. 659.

FN4 1 Sim. (N.S.) 301.

FN5 2 Bli. (N. S.) 31.

FN6 3 D. F. & J. 217.

FN7 § 55.

FN8 4 Russ. 225.

FN9 9 Beav. 461.

FN10 1 Sim. 94.

Mr. W. M. James, Q.C., Mr. Kay, Q.C., and Mr. C. Hall, for the Defendants:—

The case of Colombian Government v. Rothschild [FN11] decides that the person who is the executive is the proper person to sue; in a monarchy it is the monarch, in a republic, such as the United States, it is the President. Under the French Republic treaties were made with the First Consul: City of Berne v. Bank of England [FN12]. In France a suit is now pending, instituted by Andrew Johnson, President of the United States, and in this Court there is a suit, President of the United States v. Drummond [FN13].

FN11 1 Sim. 94.

FN12 9 Ves. 347.

FN13 33 Beav. 449. The record in the Petition of President of United States v. Drummond was sent for by the Court. It assumed that Smithsonleft the United States a legacy for a charity. The suit was for administration, and the bill, as amended, stated an Act of Congress enabling the President to appoint an agent to prosecute the suit in this country, and, “in the name of United States, or otherwise,” to receive the fund.

This is only a question of procedure, and is concluded by the case of Colombian Government v. Rothschild. Why did the Plaintiffs not add the name of one of their public officers? No doubt there are the cases of infants and lunatics from whom discovery cannot be obtained, and who are allowed to sue, but that is from the necessity of the case, and the rule does not apply here. The President ought to be the Plaintiff. The Plaintiffs only say that they are the United States of America, and allege that they are entitled to this property, but they do not bring themselves within the qualification established by the case of Colombian Government v. Rothschild.

Mr. Benjamin, with them:—

By the law of all countries the nation cannot sue, and the government only can sue, and this bill ought to be filed by Andrew Johnson, as President. He is the executive, and it is his duty to get in the public property, and for such purposes he represents the nation. Otherwise there might be several persons claiming [*585] to represent a foreign country, and then what is this Court to do? It is a political question, and must be decided by the government of England, who must say who is the representative of the foreign country. No evidence is ever given on that point. The President has full power to claim the property of the state: Kent’s Commentaries [FN14].

FN14 Vol. i. p. 271.

June 17. LORD CHELMSFORD, L.C.:—

The question raised by the demurrer to the bill in this case is whether the United States of America are entitled to institute a suit in their own name for an account of money and goods, alleged to be their property, and to have come to the hands and possession of the Defendants.

For the purposes of the demurrer the facts stated in the bill must be taken to be true, and the Court is bound to take judicial notice of the existence, and of the title, of the United States of America as a sovereign power, and also that the name by which the Plaintiffs sue is their correct and appropriate designation. The bill expressly alleges that the money and goods, the subjects of the suit, are vested in, and are the absolute property of, the Plaintiffs.

Upon the argument of the demurrer before Vice-Chancellor Wood, His Honour said:—“The question is not whether the Plaintiffs can sue, that is a right upon which there can be no doubt, and which has been recognised from the time of the case mentioned in Rolle’s Abridgement [FN15], and finally established by the decision of the House of Lords in the King of Spain’s Case, but how they can best sue, having regard to the consideration due from the Court to the interests of Her Majesty’s subjects who may be sued.” And founding himself “upon the great principles of moral justice expressed by Lord Talbot in Wych v. Meal”; [FN16], and also relying upon the case of the Colombian Government v. Rothschild [FN17], he held that the United States of America must sue subject to all the consequences that any other sovereign state is subject to, “and that they must put forward some person who will [*586] be in a position to answer a cross bill, or give discovery, by that or other means,” and he allowed the demurrer with leave to amend on payment of costs.

FN15 See Law Rep. 3 Eq. 729, n.

FN16 3 P. Wms. 311.

FN17 1 Sim. 94.

The argument before us in support of the demurrer has been chiefly rested upon the case of the Colombian Government v. Rothschild, and it has gone the length of maintaining that, by the rules of procedure in Chancery, a foreign republic is unable to institute a suit for the recovery of its own property in its own name. And being pressed to state in what manner the United States of America are to sue in our Courts, the counsel for the Defendants said the only proper mode was in the name of their President.

This, however, was not the view of the Vice-Chancellor Wood, for, upon the argument before him, it having been suggested that there would be no difficulty or disadvantage in compelling the United States to put forward the President, who, it was alleged, was in the position of a sovereign for the time being, the executive power being vested in him by the constitution, His Honour said:—“I am not holding, nor am I prepared to hold, that there can be a suit by him (the President) as representing the United States. He may not be the proper person to institute a suit on behalf of that country, and I should feel the same difficulty as I felt in the former case where he was made a Defendant to the suit.” The Vice-Chancellor alluded to the case of Prioleau v. United States and Andrew Johnson [FN18], in which the United States of America having instituted a suit in their own name against Prioleau and others, Prioleau filed a cross bill for a discovery against the United States and President Andrew Johnson, His Honour, though he ordered the proceedings in the suit by the United States to be stayed until an answer was put in to the cross bill, yet expressly stated that the selection of the President as a Defendant in the cross bill was open to the objection that the Court could not take judicial notice, nor did he suppose it to be a matter of fact, that the United States Government have control over their President, or can compel him to produce papers, or the like, and therefore that he could not make any order that the proceedings in the original suit should be stayed until the President had put in his answer.

FN18 Law Rep. 2 Eq. 659.

[*587] But if the President is not the proper person to sue on behalf of the United States, what other mode of prosecuting their rights in a foreign country than by suing in their own name, can be resorted to? I confess I have been unable to appreciate the distinction which ran through the whole of the Defendant’s argument, between a suit in equity by the head of a monarchy, and a similar suit by a republican state. In a monarchy all the public rights and interests of the nation are vested in, and represented by, the monarch. In a republic they are the property of the state. When a foreign monarch sues in the Courts of this country it is not as the representative of his nation, but as the individual possessor of the rights which are the subject of the suit. Why should a republic be precluded from asserting in its own name, similar rights vested in it?

The Vice-Chancellor does not deny the right of the United States to sue, but says, “They must put forward some person who will be in a position to answer a cross bill, or give discovery by that or other means.” I am quite at a loss to understand in what manner this is to be done, nor am I aware of any authority for saying that a party is disabled from suing because you cannot get discovery from him. The cases which were cited are far from establishing any such proposition. The case of Wych v. Meal [FN19] was a suit against the East India Company, and one of the officers of the company was made a Defendant, in order to discover some entries and orders in the books of the company. The officer demurred, shewing that it was not even pretended by the bill that he was in any way interested in the matter in question. Lord Talbot overruled the demurrer, saying, “Notwithstanding the answer of the Defendant, the officer, cannot be read against the company, yet it may be of use to direct the Plaintiff how to draw and pen his interrogatories, towards obtaining a better discovery; and no instance is produced where such a demurrer has been allowed, and it may be very mischievous and injurious to the subject by allowing thereof, to deprive them of that discovery to which, in common justice, they are entitled; and, on the other hand, no manner of inconvenience can ensue from obliging such officers of a company to answer.” Reference was also made to [*588] Lord Redesdale’s book on pleading [FN20], where, upon the subject of want of interest in the Defendant, after stating that unless a Defendant has some interest in the subject he may be examined as a witness, and, therefore, in general, cannot be compelled to answer a bill for a discovery, the passage proceeds, “There seems to be an exception to the rule in the case of a corporation, for, as a corporation can answer no otherwise than under their common seal, and, therefore, though they answer falsely, there is no remedy against them for perjury, it has been usual where a discovery of entries in the books of the corporation, or of any act done by the corporation, has been necessary, to make their secretary, or bookkeeper, or other officer, a party, and a demurrer, because the bill shewed no claim of interest in the Defendant, has been in such case overruled.” And Lord Eldon, in Dummer v. Corporation of Chippenham [FN21], speaks to the same effect. Now, waiving the consideration of the correctness of the analogy which was supposed to exist between a corporation and a sovereign state, how do the authorities cited establish what the Defendants contend for? How can it be said that a series of decisions that a Plaintiff wanting a discovery may make the officers of a corporation Defendants without their being able to demur for want of interest, proves the proposition that no party can sue without affording the Defendant the means of obtaining a discovery? If this were the practice of the Court, it would follow, either that a republican state would be incapable of suing at all in its own name, or that it must join as co-Plaintiff some individual having a knowledge of the subject in dispute, contrary to the rule that no person should be joined as a Plaintiff who has not an apparent interest in the suit.

FN19 3 P. Wms. 311.

FN20 5th Ed. p. 223.

FN21 14 Ves. 245, 252.

It was insisted that the case of the Colombian Government v. Rothschild [FN22], which was approved of by the House of Lords, had settled this question in Defendants’ favour. That case, however, seems to have proceeded upon grounds which render it wholly inapplicable to the purpose for which it was cited. The bill was filed in the name of the government of the state of Colombia, and His Excellency, Don Manuel José Hurtado, described as a citizen of the said state, and minister plenipotentiary from the same to the Court of His Britannic Majesty, with the addition of his residence. [*589] It stated a decree by the Senate and House of Representatives of the state of Colombia for raising a loan upon the credit and service of the state, that Arrubla and Montoya, citizens of the state, were, under the decree, appointed Commissioners of the state for raising the loan; and that, for the purpose of raising such loan, an agreement was entered into between Arrubla and Montoya, on behalf of the government of Colombia of the one part, and Messrs. B. A. Goldschmidt & Co. of the other part, in which Arrubla and Montoya, as agents of the state, and by virtue of the decree and of the powers and authorities vested in them, bind the state and all the authorities thereof to performance. The bill prayed that an account might be taken of all sums received by Goldschmidt & Co. for and on account of the government of Colombia, and of all sums paid and expended by them unto or for the use of the government; and that what on the balance of such accounts should be due and owing from the firm might be paid to Hurtado as the representative of the Colombian Government. The bill having been demurred to, the Vice-Chancellor, Sir John Leach, allowed the demurrer, saying that a foreign state “must sue in a form which makes it possible for this Court to do justice to the Defendants. It must sue in the names of some public officers who are entitled to represent the interests of the state, and upon whom process can be served on the part of the Defendants, and who can be called upon to answer the cross bill of the Defendants. The general description of ‘the Colombian Government,’ precludes the Defendants from these just rights.” Now I do not understand this to be a decision that the state of Colombia could not be Plaintiffs in a suit instituted for the recovery of the property of the state, much less that they could not sue unless they appointed some public officer, having himself no interest in the subject in litigation, to represent their rights. The Vice-Chancellor, by the words, “It must sue in the names of some public officers who are entitled to represent the interests of the state,” must have referred to some persons or body in whom the interests of the state were vested, and who were, therefore, entitled to represent it in a suit.

FN22 1 Sim. 94.

There was nothing upon the face of the bill to indicate whether the government of Colombia was such a body, or, indeed, of whom [*590] it was composed, so that if the Defendants had been desirous of filing a cross bill, they would have been wholly unable, from information contained in the original bill, to know upon whom process should be served.

It was from the language of Sir John Leach in this case, that the Defendants’ counsel thought themselves warranted in insisting that the United States could only sue in the name of their President. The opinion of Vice-Chancellor Wood (as already shewn) is against this method of proceeding. But we were referred to a case of The President of the United States of America v. Drummond [FN23], in which a suit was instituted in the name of the President for a legacy given to the United States. It does not appear that any objection was raised to the title of the President to sue. But he having been authorized by an Act of Congress to proceed to obtain the legacy, before the decree was pronounced the bill was ordered to be amended by introducing a statement of the authority by which the Plaintiff was qualified to sue, rendering this a case rather against than in favour of the Defendants.

FN23 33 Beav. 449.

I do not see what injustice can be done by permitting the United States of America to proceed in this case in their own name, without (to use the words of the Vice-Chancellor) “putting forward some person who will be in a position to answer a cross bill, or give discovery by that or other means.” If the Defendant wishes to obtain a discovery, and files a cross bill for that purpose, he may apply to the United States to name some person from whom the discovery sought for may be obtained, and if they refuse to furnish him with this information, the Court will be justified in staying the proceedings in the suit until the Defendant’s demand is complied with; and when the person who can give the requisite information is ascertained, the Plaintiffs in the cross suit may apply to the Court to amend their bill by adding the person named as a Defendant; and an answer will then be obtained in the same manner as where a corporation is sued and one of its officers is joined as a Defendant.

In this manner the right of the United States of America to sue in their own name will be maintained, and the Defendants will be furnished with all the means of discovery which they can require.

I am of opinion that the order of the Vice-Chancellor which is [*591] appealed from should be discharged, the demurrer overruled, and the Defendants ordered to answer the bill.

SIR G. J. TURNER, L.J.:—

In my opinion, also, this demurrer ought to have been overruled. The right of a foreign state which has been recognised by Her Majesty, whether it be a monarchy or a republic, to sue in the Courts of this country for public property belonging to the state, has not been, and cannot be, denied. The very case which has been relied upon in support of this demurrer affirms the existence of that right, nor has it been, nor can it, upon the argument of this demurrer, be denied that the property sought by this bill to be recovered, is the public property of the republic of the United States, for the bill throughout alleges, and the demurrer of course admits this to be the case; and there is certainly nothing upon the face of the bill which leads to a different conclusion. This demurrer therefore, rests upon the very singular proposition that the Plaintiffs; although entitled to the property in question in the suit, and entitled to sue for it in the Courts of justice in this country, are not entitled so to sue for it by their own proper name and description.

Such a proposition would seem to require strong reasons, or great authority, to support it. It was argued in support of it, that this is simply a question of procedure; but, assuming it to be so, procedure is for the purpose of effectuating rights, and in determining questions arising upon it regard must be had to the rights to be effectuated. In this case, the rights to be effectuated are by the demurrer admitted to be in the Plaintiffs, and I do not see how they can be effectuated otherwise than in a suit by them; for I take it to be an inflexible rule of this Court, that suits can be brought only by the persons or bodies to whom the property in question belongs, or who have some right or interest in it. But then it was said that the suit must be so brought that the Court may be enabled to do justice to the Defendant, and that If the Plaintiffs be permitted to sue in their character of the Unites States, no cross bill could be effectually brought against them. It is however clear from the case of Hullett v. King of Spain [FN24], that a cross bill could be [*592] brought against them, and as to such a cross bill not being capable of being made effectual, there is not only the right which prevails in suits against corporations, of adding some proper person as a Defendant from whom a discovery can be had; but there is this other and far better right also, that it would be in the power of the Court to stay the proceedings in this suit, unless and until such discovery should be given as the justice of the case may require. It was ingeniously attempted, in the course of the argument on the part of the Respondents, to turn in their favour the cases which have been decided in this Court in suits by and against sovereigns. It was said that in those cases, the sovereign sued and was sued as the representative of the state, and that, by parity of reason, the Plaintiffs ought to sue by some person duly qualified to represent them; but this argument seems to me to rest upon a fallacy, and, when considered, to be against rather than in favour of the Respondents. In the cases referred to, the form of government was monarchical; and I take it that in such cases the public property of the state, so far as it is not by the constitution of the state otherwise destined, vests in the sovereign, subject to a moral obligation on his part to apply it for the benefit of his subjects; and when he sues in respect of the public property, he sues not as the mere representative of the state, but as the person in whom the property is vested for the benefit of the state. In the case of a republic the public property of the state remains in the state; and the state, therefore, and not any mere officer of the state, is the proper party to sue for it.

FN24 2 Bli. (N. S.) 31.

I will add only one further observation on this part of the case. There can, I think, be no doubt that an American corporation could sue in this Court in its corporate name for the recovery of property belonging to it; and it cannot surely be right that the state should be in a worse position than the body which it has created. So far, therefore, as the question depends upon the reason of the case, I can see no ground for supporting this demurrer. So far as authority is concerned, no case has been cited at the bar, nor have I met with any case which can in any way warrant the allowance of the demurrer, unless it be the case of Colombian Government v. Rothschild [FN25]; and looking to the argument on which the judgment in that case proceeded, and to the concluding passage of [*593] the judgment itself, I am quite satisfied that it was not intended by Sir John Leach to lay down any such rule as has been contended for on the part of the Respondents. I am of opinion, therefore, that this order ought to be reversed, and that there should be an order overruling the demurrer, with costs; but, of course, there will be no costs of the appeal.

FN25 1 Sim. 94.

LORD CAIRNS, L.J.:—

It is admitted that, upon the statements in the bill, it must be taken that the property claimed in the suit belongs to the United States of America, a foreign sovereign state, adopting the republican form of government, and recognised and treated with as such, and under that style, by Her Majesty; but it is contended that this foreign state, being a republic, cannot sue in its own name, and must either associate with it as Plaintiff, or proceed in the name of, the President of the Republic, or some other officer of state.

A proposition so startling, so grave in its consequences, and in such apparent antagonism to the rules, that the proper Plaintiff is to be sought in the owner of the subject matter of the suit, and that a foreign state is at liberty to sue in any of our Courts, would seem to require some argument and authority to support it. It was contended then, that when a monarch sues in our Courts, he sues as the representative of the state of which he is the sovereign; that the property claimed is looked upon as the property of the people or state; and that he is permitted to sue, not as for his own property, but as the head of the executive government of the state to which the property belongs; and it was contended, in like manner, that when the property belongs to a republic, the head of the executive, or in other words the President, ought to sue for it.

This argument, in my opinion, is founded on a fallacy. The sovereign, in a monarchical form of government, may, as between himself and his subjects, be a trustee for the latter, more or less limited in his powers over the property which he seeks to recover. But in the Courts of Her Majesty, as in diplomatic intercourse with the government of Her Majesty, it is the sovereign, and not the state, or the subjects of the sovereign, that is recognised. From him, and as representing him individually, and not his state or kingdom, is an ambassador received. In him individually, and [*594] not in a representative capacity, is the public property assumed by all other states, and by the Courts of other states, to be vested. In a republic, on the other hand, the sovereign power, and with it the public property, is held to remain and to reside in the state itself, and not in any officer of the state. It is from the state that an ambassador is accredited, and it is with the state that the diplomatic intercourse is conducted.

It was then contended that the republic of the United States as a body politic being Plaintiff, no effectual discovery could be had from it, or relief against it, on a cross bill; that it is a condition of obtaining relief in equity, that discovery may be had against the Plaintiff on a cross bill filed by the Defendant; and that in the case of a corporation, this right is preserved by the rule that its officers may be made co-Defendants for discovery.

It is to be observed, however, with regard to the case of a corporation, where the Court making an exception from its general rules allows persons who are merely witnesses to be made co-Defendants for discovery, that the exception does not depend on any reasons springing out of the nature of bills and cross bills; for the officers of a corporation may be sued with the corporation, even where no litigation has been commenced by the corporation; nor does the liability of the officers to discovery affect the question who is to be Plaintiff; for the corporation sues for the corporate property without joining any officer of the corporation as a co-Plaintiff.

The rule of the Court as to corporations, if it proves anything, would seem to shew that in a cross bill against the United States there would be a right to join some officer of the United States for the purpose of discovery. The Vice-Chancellor appears to have thought that the President of the United States was not an officer who could thus be joined as a Defendant, and I do not desire to express an opinion differing in that respect from the opinion of His Honour. But if the reference to suits against corporations does not establish a right to make some officer of the United States a co-Defendant to a cross bill, it is, as I think, altogether irrelevant. It is, however, in my opinion, an error to suppose that the right of a Plaintiff to sue depends in any way on the effectiveness of the discovery which on a cross bill can be exacted from him. From an infant, a lunatic, a representative, trustee, or executor, wholly [*595] ignorant of the occurrences which are the subject of the suit, no practical discovery can be obtained, and yet they can maintain a suit. I apprehend that the only rule is, that the person, state, or corporation which has the interest must be the Plaintiff, and the Court will do the best the law admits of to secure to the Defendant such defensive discovery and relief as he may be entitled to. The Court can in all cases suspend relief on the original bill until justice is in this respect done to the Defendant.

The case of the Colombian Government v. Rothschild [FN26], however, was said to be, and the Vice-Chancellor appears to have considered that it was, a binding authority against a suit in this form. I cannot so view that case. The bill was filed in the name of the government of the state of Colombia, and if this bill had been filed in the name of the government of the Unites States, the case would have been analogous. Dealing with the words before him, Sir John Leach appears to me to have held, and to have most properly held, that an unknown and undefined body, such as the government of a state, could not sue by that quasi-corporate name, and the expressions in his judgment seem to me to intimate no more than that if the persons so described could sue at all they must come forward as individuals, and shew that they were entitled to represent their state.

FN26 1 Sim. 94.

Nothing could be more unreasonable than to suppose that by observations of this kind Sir John Leach meant to decide, and to decide for the first time, that a republic could not sue in its own name, but must have, or must create, some officer to maintain a suit on its behalf.

I think the demurrer in this case must be overruled.