Hill v. Porter,
50 U.S. 386 (1850)

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U.S. Supreme Court

Hill v. Porter, 50 U.S. 9 How. 386 386 (1850)

Hill v. Porter,

50 U.S. (9 How.) 386


Where the United States, as endorsees of a promissory note, recovered judgment against the makers thereof, who thereupon filed a bill upon the equity side of the court and obtained an injunction to stay proceedings, this injunction was improvidently allowed.

The United States were made directly parties defendants; process was prayed immediately against them, and they were called upon to answer the several allegations in the bill.

This course of proceeding falls within the principle that the government is not liable to be sued, except by its own consent, given by law.

The bill must therefore be dismissed.

This was a bill filed on the equity side of the court by Hill and the other complainants against the United States, the Mississippi & Alabama Railroad Company, William M. Gwin, and William H. Shelton, to enjoin a judgment obtained against the complainants by the United States.

The circumstances were these.

In 1835, the receiver of public moneys for the Choctaw District in the State of Mississippi was found to be in debt to the government.

On the 26th of September, 1835, the Solicitor of the Treasury issued a distress warrant, under the Act of May, 1820, for the purpose of collecting the debt, and enclosed it to William M. Gwin, then Marshal of the United States for the State of Mississippi.

The history of the transaction between 1835 and 1839 need not be stated.

In 1839, the marshal, by direction of the Solicitor and Secretary of the Treasury, received from the representative of the debtor (who was then dead) the sum of $30,000 in the notes of the Mississippi & Alabama Railroad Company as collateral security for the debt, for the collection of which he had a distress warrant. The Railroad Company, in order to avoid a suit upon its notes, transferred to the district attorney upwards of $78,000 of bills receivable of the bank. Amongst these bills receivable was a promissory note for four thousand dollars dated on 12 April, 1838, payable six months after date to the Mississippi & Alabama Railroad Company, negotiable and payable at their banking house in Brandon, and signed by William J. Hill J. S. Rowland, D. M. Porter and W. F. Walker. The note was joint and several; Hill was the principal, and the others sureties.

Page 50 U. S. 387

On 15 June, 1839, the district attorney brought suit upon the note in the name of the United States against all the parties, and at November term obtained judgment.

In January, 1840, a fi. fa. was issued, an in May, 1840, Hill Porter and Walker filed a bill on the equity side of the court against the United States, the Mississippi & Alabama Railroad Company, William M. Gwin, and William H. Shelton, setting up certain equities, which need not be here particularly stated, and praying for an injunction, which was granted.

All the parties answered, the district attorney answering on behalf of the United States.

In May, 1846, the cause was set down for hearing upon the bill, answers, and exhibits.

In November, 1846, the following proceedings took place.

The United States, by attorney, made the following motion, to-wit:

"Motion by R. M. Gaines, U.S. Attorney, to dissolve the injunction and dismiss the bill, as to the United States, for want of jurisdiction as to them, and also on the merits."

"R. M. GAINES, U.S. Att'y"

"And afterwards, to-wit, at the May term, A.D. 1847, of said court, to-wit, on 20 May in the year of our Lord 1847, this cause came on to be heard before the Honorable Peter V. Daniel and Samuel J. Gholson upon the motion of the United States of America to dismiss this suit as to them, and dissolve the injunction for want of jurisdiction, and was argued by counsel. And the court having taken time to consider, and not being able to agree in opinion what decree should be made in the cause on said motion, one of the judges being of opinion that the said motion should be sustained and the said bill dismissed and injunction dissolved and the other being of opinion that the said motion should be overruled, it is therefore ordered, at the request of the counsel for both complainants and defendants, that said difference of opinion be certified to the Supreme Court of the United States for their decision whether the said motion should be sustained or overruled."



Upon this certificate the case accordingly came up.

Page 50 U. S. 388

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