
    Didier Dreux and others, Heirs of Claude Joseph Dubreuil Villars and Wife, v. Joseph M. Kennedy and others.
    The provision of art. 43 of the Code of Practice, that a petitory action must be brought against the person in actual possession of the immoveable, does not contemplate that the person sued should have the right of possession. It is enough that he be the actual occupant.
    Tho jurisdiction of a State, in civil cases, is co-extensive with its territory, exoept where it has consented to part with a portion of it, under the constitution of the United States; and it extends over every portion of its soil severed from the public domain.
    Plaintiffs having instituted a petitory action against defendants to recover lands al leged to be in their possession, the latter excepted to answering the petition, and prayed for its dismissal, averring that the property is in the possession of the United States, a branch Mint having been erected tberon; that they are merely officers of the Mint, and are not in possession of the premises, and have no authority to represent the United States ; and that this action is an attempt to effect indirectly what plaintiffs could not do directly : Held, that the exception should be overruled. Per Curiam : Where the party in possession, sued in a petitory action, points out the owner under whom he holds, he is bound to defend the action, if such owner do not live within the State or is not represented therein, or if such proprietor, lessor or principal be the United States, against whom no direct action can be brought.
    Appeal from the District Court of the First District, Buchanan, J. The petitioners represent that they are the heirs of Claude Joseph Dubreuil Yiliars and his wife, the latter of whom died in the year 1750, and the former in tbe year 1757; that at the time of their death, their said ancestors were the owners and possessors of certain land in the parish of Orleans j (hat a war having broken out between England and France, of which latter country Louisiana was then and long afterwards a colony, the Governor and the Commissaire Ordormateur of the Marine Department, possessing requisite authority for that purpose, caused possession to be taken of the said land, about the year 1759, under the pretext, that it was required for the erection of barracks, redoubts, and other military defences necessary to the defence of the city. Plaintiffs allege, that the right to take possession of the said property was asserted and exercised under a presumed, or express reservation, in all grants of colonial lands, empowering the King of France, and his colonial Governors, to resume the use of all such lands when necessary for the defence of the country; but that the right to take such property was subject to the condition, that when the necessity for using the land so taken ceased, or the authorities entrusted with the defence of the country abandoned it as no longer necessary, the land reverted to the original owners. Plaintiffs aver that the land thus taken without compensation by the colonial authorities, was occupied by a fort and other military defences at the time of the transfer of the colony to Spain, and, subsequently, in 1803; to the United States ; and that the land, with the fortifications thereon, was transferred to the United States by the French government by the treaty of cession of Louisiana, subject to the obligations and conditions under which the French government held it. That the government of the United States having no longer any use for the military defences erected on the land, abandoned them about the year 1819, when, according to the laws of France, the laws of nations, and the second and third articles of the treaty of Paris, of 3d of April, 1803, between the United States and the French Republic, and various acts of Congress, the said land reverted to plaintiffs’ ancestors. Plaintiffs further aver, that certain buildings •called the Mint, have been erected on a portion of said lands ; and that defendants are in possession thereof; and they pray, that the latter may be cited to answer, and be condemned to give plaintiffs possession of the land on which said buildings are placed, and to account for the rents and profits thereof, since 1819, or to pay one hundred thousand dollars in lieu thereof.
    Defendants excepted to answering the petition, and prayed for its dismissal, averring that thelandin dispute is in the possession of the United States, and occupied by buildings erected and used for a branch Mint; that the United States have been in possession thereof, since the year 1835, under a cession made to them by the corporation of New Orleans; that defendants are officers of the United States employed to carry on the operations of the Mint, and are not in possession thereof, and have no authority to take possession of said land, nor to defend this action. They further allege that plaintiffs, knowing the illegality of a direct action against the United States, have instituted this action to effect indirectly what they could not do directly. This exception, though in the names of the defendants, was signed, “ Balie Peyton, United States Attorney for the Eastern District of Louisiana, and attorney of defendants.”
    Annexed to the exception was a copy of a notarial act executed by the Mayor, on behalf of the Corporation of New Orleans, by which the use of the land in dispute was ceded by the city to the United States, for the purpose of erecting a Mint thereon, on the condition that the right of the United States to the use thereof, should end whenever the property should cease to be used as a Mint. The act was accepted on behalf of the United States by Martin Gordon, who is described as a commissioner appointed by the United States to superintend the building of a branch of the Mint of the United States, to be located in New Orleans.
    The act of cession by the city of New Orleans was offered in evidence on the trial of the exception, on the part of the defendants. It was proved by a witness introd uced by them, that the land was occupied by the buildings of the Mint; that the defendants, as officers of the government, have the care of the buildings ; and that the defendants, with the exception of one, reside thereon. The commissions of the defendants, as officers of the United States, were introduced in evidence.
    There was a judgment below sustaining the exception, and dismissing the action, from which the plaintiffs appealed.
    
      Schmidt, for the appellants.
    For the purpose of the present controversy, the facts alleged by plaintiffs are taken as true. It is consequently admitted; 1st. That plaintiffs are the legal owners of the property claimed in their petition. 2d. That they have been illegally divested of their ownership; and 3d. That the land claimed, forms a portion of the territory of Louisiana, situated within the jurisdiction of the District Court of the First Judicial District.
    The defendants contend:
    1st. The United States own the land claimed by plaintiffs, by virtue of their title from the City of New Orleans.
    2d. The United States are sovereign, and as such, not amenable to the jurisdiction of the State Courts.
    But the defendants in the present suit, cannot rely on personal exceptions, which appertain to the supposed, real owner, but which do not protect them individually from suits.
    According to article 43, of the Code of Practice, the party really in possession must be made defendant in a petitory action, and he can only discharge himself by naming the real owner, who must defend the suit. The suit will not be dismissed upon defendant’s naming the real owner, but the latter must be called in to contest the suit. Kling v. Fisk, 4 Mart. N. S. 393.
    In the present suit, the United States have not been called in, nor have they voluntarily made themselves parties.
    The defendants who possess no immunities which exempt them from being sued in the State Courts, cannot shield themselves under the supposed prerogative of the United States.
    Were they permitted to do so, it could only be in consequence of a decision in favor of the United States, which this court can • not pronounce in absence of the party whose rights are involved. Such a decision, if adverse to the pretended rights of the United States, would not be binding on them, because they were not parties.
    The United States, supposing them to be parties, according to their own showing, have no title to the property claimed by plaintiffs.
    Their title is an act of donation, inter vivos, from the Corporation of the City of New Orleans, which purports to transfer the land for the purpose of building the Mint upon it, and guaranties the use as long as used for the purpose of a Mint; the land to revert to the city, when it is no longer required for the purposes of the grant.
    This conveyance constitutes the United States only usufruc-tuaries of the land, for a period depending on the occurrence of a certain event. The fee simple is still in the Corporation, which has not parted with it. The doctrine contended for by the defendants in this case, amounts to this ; that when the reputed owner 
      of real estate, temporarily transfers the use of such property to the United States, he cannot be sued for the ownership, because his tenant is the United States. The defendants have, consequently, no right to prevent us from attacking the Corporation through them. All that they can possibly have the right to insist on, is, that their usufructuary interest should not be interfered with.
    I have hitherto supposed, that the title of the Corporation gave the United States some interest in the land claimed by plaintiffs, and entitled them to hold it, either as usufructuaries or otherwise; —but Í contend, that the transfer of the Corporation, gave the United States no title whatever—
    1st. From want of capacity in the donor.
    2d. From want of acceptance of the donee.
    I. The Corporation of New Orleans is not authorized by its charter, to alienate any portion of its real estate by donations as in the present case.
    II. The donation was not accepted in due form. Gordon, who accepted it on behalf of the United States, was not authorized to do so. He was appointed the agent of the United States for the purpose of superintending the building of the Mint, and not to accept of donations. Civ. Code, arts. 1527, 1536, &c.
    The United States have really no title whatever to the land on which the branch Mint is erected; and if they have not, does the mere possession, without title, authorize them to claim exemption from legal responsibility, not only for themselves, but for the subordinate agents who hold it for them, and who are in contemplation of law, mere trespassers 1 The prevailing doctrine, that the United States cannot be sued without their own assent, is inapplicable to the present case.
    Every sovereign has exclusive jurisdiction over his own territory. Grotius de J. B. et P., b. 2, ch. 3, § 4, No. 3, vol. 2, p. 247. Yattel, vol. 1, p. 330. Martens, Droit des Gens, vol. 1, p. 178. Ib. vol. 2, p. 15. Wheaton’s Law of Nations, pp. 98,118. Story Oonfl. of Laws, p. 361, n. 3. United States v. Crosby, 7 Cr. 115,116.
    'Louisiana is a sovereign State, and possesses, consequently, exclusive jurisdiction over her territory; but the land claimed by plaintiffs forms a part of that territory.
    This reasoning is unanswerable; unless it be shown, that Louisiana has ceded to the United States such portion of her sovereign attributes, as will prevent her from asserting and exercising this right of jurisdiction against the United States.
    The General Government is one of limited powers, derived from the grants of the States, while each State is sovereign in the most extensive acceptation of the term, and as such, possesses all the attributes of sovereignty, of which it has not voluntarily divested itself.
    The Constitution of the United States, art. 1, § 8, No. 16, declares, that the United States have exclusive jurisdiction over lands bought within the States, with the consent of their Legislatures, for the purposes of forts, dockyards, arsenals, &c. This is the only constitutional provision in relation to the subject, and if it can be shown, that the lands claimed by the plaintiffs have been acquired by the United States, for the purposes mentioned in the preceding provision, and that the Legislature of the State has given its assent to the acquisition, there would perhaps be some pretext for the pretensions of the defendants, though, even in such a case, it would not be tenable.
    In the United States v. Bevans, 3 Wheat. 336, the Supreme Court of the United States declare, that the jurisdiction of a State is co-extensive with its territory, co-extensive -with its legislative power, and that, without the consent of the Legislature where the land is situated, the United States have no jurisdiction over it. This doctrine is re-asserted in The Peoples. Godfrey, 17 Johns. E. 232. The jurisdiction, therefore, appertains to the State.
    But, say our opponents, admitting your doctrine to be true, how is the jurisdiction to be exercised, since no suit can be brought against the United States ?
    The answer is simple. The United States, whenever its rights come in conflict with the acknowledged prerogatives of the State within its own territory, must be regarded as a foreign sovereign, who, according to the authority already cited from Martens’ Law of Nations, is subject to the jurisdiction of the sovereign, within whose territory it owns property, as to such property.
    It is true, that Chancellor Kent asserts in his Commentaries, “ that the United States cannot be sued but that learned jurist gives us at the same time the authority on which he relies to establish his assertion, and it is to that authority we must look, in order to ascertain the extent of its obligatory force. It rests entirely on an obiter dictum of Chief Justice Marshall in the case of Cohens v. The State of Virginia, (6 Wheat. 264;) which dictum, though entirely unnecessary to the decision of the cause, is pressed much beyond its reasonable and obvious import, and then relied on as conclusive authority. This dictum is no authority. See Chief Justice Marshall’s commentary in the above case. But, giving it all the weight which can be claimed, it will be found that it asserts only, that the United States cannot be sued in their own courts, and consequently does not affect the present question.
    t The language of the Chief Justice is : “ The universally received opinion is, that no suit can be commenced and prosecuted against the United States; that the judiciary act does not authorize such suits.” This language, one would suppose, was sufficiently guarded, since the Judge does not even intimate his own opinion^and qualifies the prevailing opinion by reference to the judiciary act, which applies exclusively to the tribunals of the United States. All that the Chief Justice meant to say, was, that under the acts of Congress, as they stand, the United States cannot be made defendants in their own courts. That Congress has the power to authorize suits against the United States, does not admit of doubt, since the power has been repeatedly exercised. The immunity of the United States from suits, therefore, if it exists at all, cannot arise from any inherent prerogative in sovereigns, but simply from the omission of the Legislature to prescribe the manner in which suits of this nature are to be prosecuted.
    All that can reasonably be inferred from this dictum, as well as from that of Justice Thompson in The United States v. Ring-gold, (8 Pet. 150,) and of Justice Wayne in The United States v. The Bank of The Metropolis, 15 Pet. 392, which maintain the same opinion, arguendo, and by way of illustration, is, therefore, that the United States courts are not authorized by law to entertain suits against the United States.
    To suppose that these obiter dicta were intended to impair or annul ¿he decisions of the “ oracles of universal law,” which all courts are bound to respect, as well as the authoritative adjudications of the same tribunal already quoted, would be absurd.
    Let us, however, suppose for a moment, that the defendants’ position, that the United States cannot be sued, is true; would this better their position, or authorize the dismissal of this suit ? Certainly not.
    In the case of Osborn v. The Bank of the United States, 9 Wheat. 738, the Supreme Court determined, that where the principal is above the law, the agent must, from the necessity of the case, and to prevent a failure of justice, be made a party.
    Chief Justice Marshall, who delivered the opinion of the court in that case, says : “ But if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say, that the law could not afford the same remedies against the agent employed in doing the wrong, which they would afford against him, could his principal be joined in the suit.” And again: “ The universally received construction in this case is, that jurisdiction is neither given nor ousted by the parties concerned in interest, but by tfie relative situation of the parties named on the record.” if, therefore, the United States cannot be sued, this fact would be sufficient of itself to prevent the court from dismissing the suit, and induce it to retain its jurisdiction.
    Nay, the Supreme Court of the United States have admitted, that the jurisdiction of the State over the real property within its territorial limits, gives it the power to tax such property, even though it belong to the United States. McCulloch v. The State of Maryland, 4 Wheat. 316. And if it has this authority, it can only be because it is a portion of the sovereign attributes of the State. The power to tax, implies the right of enforcing the payment of the tax, and if a suit should become necessary for that purpose, the United States could not prevent the State courts from taking cognizance of the same, on the pretext that they cannot be sued. If this be so, what valid reason can be assigned to prevent, the State courts in this case, where the title to the land is in dispute, from maintaining their jurisdiction 1
    
    What is the situation of the State and the United States, as to the land in dispute ?
    It is within the territorial limits of the State, and you may consider the United States either as usufructuaries, or owners of the land. The United States, a sovereign, possesses then, within the territorial limits of Louisiana, another sovereign, certain lands ; and the question is, can the former claim exemption from the territorial jurisdiction of the latter 1
    
    To this question, a negative answer must necessarily be given, unless it can be shown, that the State has consented to exempt the United States from this jurisdiction. But of this there is no proof; the jurisdiction, therefore, remains unquestionable.
    History furnishes innumerable examples of the fact, that one sovereign, though paramount and absolute within his own dominions, might be, as to lands held within another sovereignty, the mere vassal of such sovereign, and subject to his jurisdiction. Vide Ward’s Inquiry into the Foundation and History of the • Law of Nations, vol. 1, p. 220, et seq.
    
    That a sovereign does, on some occasions, divest himself of the attributes of sovereignty, and thus renders himself liable to be treated as an ordinary individual, see Bank of the United States v. The Planters Bank of Georgia, 9 Wheat. 904.
    So, in the present case, the State of Louisiana having exclusive jurisdiction over the land, she cannot allow the United States any exemptions, without impairing her own rights.
    Besides, the court will perceive by the decision of the Pea Patch case, that the possession of the United States forms really no obstacle to the trying of the title.
    
      Downs, Attorney of the United States for the District of Louisiana, contra. The property claimed belongs to the United States, and they are in possession of it in the only way they can possess anything, by their officers. Civ. Code, arts. 3389, 3395, 3401, 3403. Ellis v. Provost et al. 13 La. 232.
    But it is contended that, the United States are not in possession as owners, but as usufructuaries. If this were the fact, it could not avail the plaintiffs on the exception now pending, in which, the title is not involved, but only the suability of the United States. But it is not a fact that the United States possess the usufruct and nothing else. They hold under a full conveyance with a resolutory or dissolving condition. Civ.' Code, arts. 525, 603, 2544, 2413, 2040, 2016.
    Can the United States, then, be sued in any court ? See Const, of the United States, art. 3, sec. 2. 3 Story’s Comm. Const. 538 to 542. 1 Kent, 295, 297 in note. Sergeant’s Const. Law, 109. Chisholm v. State of Georgia, 2 Dallas, 427 to 440, 442, 445, 460, 475, 478. Hollinsworth v. Virginia, 1798, 1 Cond. JR. 169. 3 Dallas, 338. 1 Tucker’s Black, part 11, 242. Ib. part 1, 352. 2 Cond. R. 442, 320, 277. Acts of Congress, 1844, p. 53. 3 Story’s Laws United States, 1959, acts of 1824. 7 Mart. 632. 2 La. 203. 3 Rob. 373. 3' Hall’s Law Journal, 129.
    If the United States cannot be sued in their own courts, a for-tiori, they cannot be sued in the State courts. See authorities above cited and also Federalist, Nos. 13, 33, 39, 80. Madison Papers. Elliot’s Debates.
    The case of Wilcox v. Jackson, 13 Peters, 498, is not at all in conflict with these authorities. No objection was made to the jurisdiction ; it was an agreed ease, submitted to the court by the officer Wilcox, and the government, voluntarily, in order to have the decision on the merits. In that case it is said, p. 507: “ It is agreed, that if the court should be of opinion upon the hearing of the cause, that the law of the case is with the plaintiff, (defendant in error) a judgment shall be rendered, that he recover his term aforesaid, and that he have his writ of possession, &c.. and that judgment be rendered against the defendant, and in favor of the plaintiff, for the use of the said lessor for the amount of the rents and profits jn the said plaintiff’s declaration, mentioned together with his costs.”
    The celebrated case of the Pea Patch is still less in point. That was an action of ejectment brought in the Circuit Court of the United States for the New Jersey District, returnable at the October term, 1833, by Henry Gale v. Henry Bealing and others. See Senate Documents, vol. 3, for 1837,1838, No. 140, p. 25. See charge of the court, p. 38. Nothing shows that any exception was taken to the jurisdiction of the court. On the 25th May, 1840, the President submitted the correspondence on the subject of the Pea Patch tot he Senate. See Senate Documents 1839-40, vol. 7, No. 501. See pp. 2, 8, 9, for the opinion of the Solicitor of the Treasury, as to the necessity of some act of Congress to bind the United States to abide the event of the trial. It will also be seen from this correspondence, that a judgment was obtained by the United States in the Circuit Court of Delaware, subsequently to the ejectment case in New Jersey, for the Pea Patch ; and that instructions were given, in the event of any interference by the heirs of Gale, that the District Attorney should obtain a writ of habere facias possessionem. On the 7th June, 1842, (Executive Documents for 1841-42, vol. 5, No. 241,) the Secretary of War submitted a contract between the heirs of Gale and himself, to Congress, the object of which was to quiet the title of the United States. The Appropriation Act of 1844, appropriates $20,000 for the repairs of Fort Delaware, provided the title to the Pea Patch shall be decided to be in the United States : so, that the judgment rendered many years since, when no objection was taken to suing the officer of the United States, was considered null and void, and an agreement was made to refer it to arbitration ; and as far as we can ascertain, in 1844, it was not settled, and, perhaps, is not so yet. This certainly could not have been the case, if the judgment against Henry Bealing had been binding on the United States, or had been valid.
    The case of Stokes et al. v. The Post Master General, was an application by the plaintiffs to the Circuit Court of the United States for the District of Columbia. The plaintiffs applied to Congress for relief against the Post Master General, who had struck from the account of the plaintiffs certain credits which had been allowed by his predecessor. An act was passed, directing the Post Master General to pass to the credit of plaintiffs, such sums as the Solicitor of the Treasury should determine they were entitled to. The Solicitor informed the Post Master General, that certain claims of the plaintiffs were well founded, but the Post Master General refused to allow the credits. Application was again made by the plaintiffs to Congress, and the Senate determined, that no farther legislation on the subject was necessary. Whereupon the plaintiffs applied to the Circuit Court for a mandamus to compel the Post Master General to credit them with the sums decided by the Solicitor to be due to them. The man,‘ damus was granted, and the Post Master General appealed. The Supreme Court affirmed the judgment of the Circuit Court. They say: “ We do not think the proceeding in this case interferes, in any respect whatever, with the rights and duties of the Executive; or that it involves a conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the Post Master General in the discharge of his. official duties, partaking in any respect of an executive character ; but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control. The right of the plaintiff to the full amount of the credit, according to the report of the Solicitor of the Treasury, having been ascertained and fixed by law, the enforcement of that right falls properly within the judicial cognizance.”
    But if this suit had been brought against the Post Master General, without the action of Congress for a liquidation of his accounts, the case would have been different, and the court would have had no jurisdiction.
    Moise, on the same side. Art. 43 of the Code of Practice requires, that the petitory action should be brought against the party in possession, and if such party be a lessee, he shall name his lessor, and be dismissed from the suit; the defendants are lessees. The occupancy of the buildings is allowed as part consideration for their official services. They have named their lessors, and ought to be dismissed. The cases of Kling v. Fisk, 4 Mart. N. S. 391, and Bayaujohrts Heirs v. Criswell, cited by plaintiff’s counsel, were under the old Code. See Code of 1808, p. 275., art. 25. So. in the case of Plummer v. Schlatre, 4 Rob. 29, the court held, that art. 43 of the Code of Practice did not apply, because the lessor lived out of the State. Do the United States reside out of the State 1
    
    That “ a sovereign, as such, has no immunity from suit as to lands within the territory of another, and a foreign sovereign,” is not disputed. For the purposes of this argument that position is conceded. But the true issue here is : Is the sovereignty of the United States a foreign sovereignty as to Louisiana ? If not, then the United States can no more be brought to the bar of our State tribunals, than can the State of Louisiana.
    This exception has been argued as though it were a question of conflict of jurisdiction between the State and federal tribunals. And it has been urged that, inasmuch as the jurisdiction of Lou-siana is co-extensive with her territory, except in places ceded, and as this land has not been ceded, she has jurisdiction over it. Nobody doubts this. If a crime be committed on the land in controversy, the offender will have justice meted out to him by the State courts. But the real matter in hand is not as to the jurisdiction of the State court over the subject matter, or over the -place, but as to its jurisdiction over the party. Can the United States be made a party defendant in the courts of Louisi-
    
      ana, whether the suit involves personal property, real property, or any thing else ?
    
      Wilcox v. Jackson, 13 Peters, 499, was an agreed ease. But it is said, that no agreement of parties can give jurisdiction. Certainly not, if the court has no jurisdiction by reason of the subject matter of the controversy. But where the limitation of the jurisdiction depends' on something personal to the parties, an appearance and answer will give jurisdiction. Dupuy v. Griffons Ex’rs. 1 Mart. N. S. 200. Flower v- Hagan et al. 2 La. 224.
    The cases and authorities relied on as illustrative of the positions taken are: 1 Blackstone, 243. Schooner Exchange, 2 Cond. Rep. 439. Orleans Navigation Go. v. Schooner Amelia, 7 Mart. 633. Cohens v: Virginia, 6 Wheaton, 264. United States v. Ringold, 8 Peters, 163. United States v. Barney, 3 Hall’s Atn. Law Journ. 139. Chisholm, v. Stale of Georgia, 2 Dali. 414 ; and the opinions of Cushing, p. 469; of Jay, Chief Justice, p. 478; and argument of Randolph, Attorney General, p. 425. 1 Kent, 297, note. Sergeant’s Const. Law. 109. 3 Story’s Commentaries on the Const. 538. McCluny v. Silliman, 6 Wheaton, 298,
   Bullard, J.

The plaintiffs, who represent themselves to be the heirs of Claude Joseph Dubreuil Tillars, assert title to a lot of ground in the city of New Orleans, on which the branch Mint of the United States is built; and this action is brought against several persons in the actual occupancy of the property, who excepted to the petition, making them parties, on the grounds: 1st. That it appears from the petition that the United States are in possession of the square of ground for which the suit is brought, and that the respondents cannot be called on to defend the said suit. 2d. That, in point of fact, the square of ground is wholly employed and in possession of the United States, for the purposes of a branch Mint, and all the buildings erected thereon were built, and have been ever since possessed by the United States, for that purpose, and its necessary appendages. That they have thus possessed since 1835, in virtue of a cession made to them by the Corporation of New Orleans. That the respondents are officers of the Mint, and are not in possession thereof, and are without authority to take possession of said square, or to represent the United .States, in defending this suit. 3d. That the plaintiffs, well knowing the illegality of an action instituted directly against the United States, have brought this action against the respondents in order to effect indirectly, what would be illegal, if directly done. On these grounds they pray to be dismissed.

The defendants exhibited their commissions as officers of the branch Mint of the United States, and a copy of the contract between the city and the Government, relating to the use of the lot for that purpose. The exceptions are signed by the District Attorney of the United States.

The District Court being of opinion, that, under art. 43 of the Code of Practice, such an action must be brought against the person actually in possession, although he be the farmer or lessee, and that the defendants having disclaimed title, and shown that the possession is in the government, which cannot be sued, and that those officers do not come within the provisions of the 43d article, sustained the plea, and the plaintiffs appealed.

The question which the case presents may be regarded in a two-fold light: First, as it relates to the technical objection arising out of the 43d article of the Code of Practice relating to the petitory actiou ; and secondly, as to the objection that the United States are substantially parties in interest, and are not amenable to the jurisdiction of the State courts as parties defendant.

I. The article of the Code relied on, requires the petitory action to be brought against the person who is in the actual possession of the immoveable, even if the person having the possession, be only the farmer or lessee. Much' stress has been laid upon the word possession, as if the person sued must have a right of possession in himself; and yet a farmer or lessee, who may be sued in the first instance, has only the occupancy, and his possession is that of the owner. This construction is fortified by the consideration that in the French text the word detenteur, which is equivalent to occupant, is used. Hence the same article requires, that when the farmer or less'ee thus sued, declares the name and residence of his lessor, he shall be made a party, if he reside in the State or be represented therein ; and we held in Plummer v. Schlatre, (4 Rob. 29,) that this expression implies that,i-f such lessor reside out of the State anc^be not represented therein, the lessee shall take upon himself to defend the suit in the absence of the owner of the property. According to these principles, if the exception in the present case had disclosed the fact that the defendants held under a foreign corporation, not represented in the State, we should be of opinion that they had the faculty standi injudicio. in relation to the title.

The question, whether the action of revendication could be brought against one who possessed in the name of another, appears to have been controverted among the Roman jurists. The Proculians maintained the negative, but Ulpian holds the opinion, that it may be maintained against those who are in possession, in whatever manner, or by whatever titles they possess. “Puto auiem db omnibus qui tenent et habent restituendi facultatem, peti posse? L. 9, ff, De loci vend. According to Pothier, the French law allowed the action to be brought against any occupant, but if he declares he possesses as tenant, or lessee of another, the person under whom he holds ought to be cited, for says he : “ the question of title to the thing sued for, cannot be discussed nor decided with the farmer or tenant, who does not pretend to the ownership : it can only be so with him who possesses the estate by his tenant, who in quality of possessor is its presumed owner until the plaintiff in the action of revendication establishes his right.” Droit de Domaine de Propriété, No. 298, (vol. S, Paris s!b 1827.)

The Code of Practice has adopted a middle course, and requires the farmer or tenant to be dismissed, and the owner for whom he possesses to be made a party, when he resides in the State, or is duly represented.

II. This leads us to inquire secondly, whether the action can be proceeded in, when the parties in possession disclose, as the owner under whom they hold, the United States, who cannot be sued, but who are evidently parties in interest.

' It is quite clear, that the United States cannot be sued in any court as a party defendant on the record ; but it appears settled that in the other States, actions may be brought and maintained against public officers, when the government alone is a party in interest; and this is particularly the case in actions of ejectment. In the opinion of the Supreme Court of the United States in the case of Wilcox v. Jackson, to which we shall have occasion to recur again for a different purpose, it is said by Mr. Justice Barbour : “ This then being the case, and this suit having been in effect against the United States, to hold that the party could recover as to them, would be to hold that a party having an inchoate and imperfect title, could recover against one in whom resided the perfect title.”

Thus the decision of that case, which was an ejectment against an officer of the army holding under the the United States, turned upon this distinction ; that, although by the law of Illinois a certificate of purchase and a patent certificate, without a patent, (inchoate titles,) were sufficient to maintain án action of ejectment in relation to lands severed from the domain, and in ordinary cases, yet when the action is against, one holding under the United States, and the government is substantially a party in interest, a recovery could not be had without a patent; and the plaintiffs failed because no patent had ever issued, and the legal title was in the United States. In that case the judgment in the State court was for the plaintiffs, and the United States, regarding their officer as amere nominal party, prosecuted the writ of error themselves. No question was made as to the form of the action. The court held that “ whenever the question in any court, State or Federal, is, whether a title to land which had been once the property of the United States has passed, that question must be solved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the State is subject to State legislation ; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.” 13 Peters, 498.

The rule which governs actions of ejectment at common law appears to be, that after service of the ejectment, which is upon the tenant in possession, the defendant should, in case he means to defend the title, appear and confess lease, entry and ouster, which brings the title only into issue. Where the tenant has not given notice to his landlord, which he is bound to do in England under severe penalties, and there is judgment against the casual ejector, the court will set aside the judgment on the landlord’s entering into the usual rule to try the title ; or the landlord may bring a writ of error, which will be a supersedeas of the proceedings. Espinasse’s Nisi Prius, 443.

That the jurisdiction of a State is co-extensive with its territory and its legislation, except where it has consented to part with any portion of it under the constitution of the United States, is a proposition which cannot be combated. It applies to every portion of its soil, which has been severed from the public domain. 17 Johnson, 233. Sergeants’ Constitutional Law, 266. 13 Peters, loco citato. 2 Mason, 60.

In the case of an illegal taking of property by an officer acting under the authority of the United States, and for the use and benefit of the government, we do not doubt but that an action would lie against the officer, or agent, of the United States, although the party in interest would be the United States. In such cases, jurisdiction is neither given nor ousted by the parties concerned in interest, but by the relative situation of the parties named on the record. If,” says the court in Osborn v. The Bank of the United States, “ the person who is the real principal, the person who is the real source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say, that the law could not afford the same remedies against the agents employed in doing the wrong which they would afford against him, could his principal be joined in the suit.” 9 Wheaton, 738. In the case of Stokes et al. v. The Post Master General, that officer had no personal interest in the matter, and the amount to be allowed was to be paid out of the treasury of the United States.

Upon the whole we conclude, that, if, when the party in possession, who is sued in such an action points out the owner under whom he holds, he is bound to defend the action, if such owner does not live in the State, and is not represented in it; still more should he so, when such proprietor, lessor or principal is the United States, against whom no direct action can be brought. If it were not so, the clearest right might be defeated, and the parly suing be without remedy. The court, therefore, in our opinion erred in sustaining the exceptions.

It is, therefore, ordered and decreed, that the judgment of the District Court he reversed, and it is further ordered, that the exceptions be overruled, and the case remanded for further proceedings according to law, and that the defendants pay the costs of the appeal. 
      
      
        Downs, for a re-hearing. The judgment of this court concedes, that if the possessor, or occupant of land be sued in a petitory action, he shall be discharged from the suit, if he name the party under whom he holds, provided such party resides, or is represented in the State. The defendants say they occupy, or possess the land merely as officers of the United Slates, and it is submitted that the United States are fully represented in the State of Louisiana. The 35th section of the act of 1789 (Story’s Laws, p. 67, chap. 20,) requires the District Attorney to “ prosecute all civil actions in which the United States are concerned.” This act does not restrict the District Attorney to cases in which the United States are piaintifis, hut extends his duty to “ all civil actions in which the United States are concerned.” It is true, the act uses the word “ prosecute,” yet the uniform construction, and invariable practice have been, to require the District Attorneys to appear in all suits in which the United States are interested. They intervene in every ease in which the United States have an interest, and their acts are over regarded as obligatory upon the government. They are always cited by the special orders of the courts if the rights of the United States seem to be involved in the matter in controversy, and admissions made by them during the trial of a cause, are considered binding upon the United States. Besides, the act of 29th of May, 1830, sect. 7. (Story’s Laws, vol. 4. p. 2207,) requires the Solicitor of the Treasury to instruct the District Attorneys “ in all matters and proceedings appertaining to suits in which the United States are a party interested." It is, therefore, submitted, that the District Attorney for the District of Louisiana is authorized by law to represent the United States in all judicial proceedings in the State of Louisiana, and that the defendants should be dismissed from this suit.
      But have the United States a residence ? and if they have, is it in the State, or out of the State? The United States are sovereign. If in popular governments, where the sovereignty is in the people, any residence can be predicated of the sovereign, it must be co-extensive with the territory over which the powers of sovereignty are exercised. It follows, that the United States reside as much in Louisiana as they do any where else. Therefore, as the United States reside in Louisiana, defendants should be discharged.
      Although the arguments based on the 43d art. of the Code of Practice are regarded as technical, they are not, on that account, less worthy the attention of the court. Technical rules are intended for the simplification of judicial proceedings, and to promote the proper administration of the laws. The rule that dismisses the lessee, or occupant, from the petitory action seems to exist in all systems, and is founded in wisdom. The mere lessee has no interest in defending the suit, and is indifferent to the proof which the plaintiff may make of his title. Plaintiff’s evidence of ownership may be defective, but the lessee failing to criticize and expose it, judgment is rendered for the plaintiff, he is placed in possession while the claimant who was before in the lawful possession, would thereafter, in his action, be compelled to rely upon the strength of his own title, instead of the weakness of his adversary’s. If the’United States were to come in, and offer to defend this suit, the court would certainly permit them to do so. If then they may come in and plead to the merits, why may they not except to the jurisdiction? The court erred in regarding the United States merely as a party interested. The United States are substantially the party sued. If, by their voluntary appearance, the nominal defendants would be dismissed, then the United States are the real parties defendant, though not named in the record : and the judgment says, “ it is quite clear that the United States cannot be sued in a direct action.” In the case of Wilcox v. Jackson, no exception was taken to the jurisdiction of the court, and as the want of jurisdiction was by reason of something personal to the party who had the right to make it, an appearance and answer gave jurisdiction. The fact that there are no cases to be found in which suit has been instituted against the United States, either in a personal or a petitory action, direelly or indirectly, goes far to show that no action can be maintained against them. The Fort Dearborn and the Pea Patch eases are the only exceptions to what has been stated, and in neither of these was there a plea to the jurisdiction.
      A distinction is taken by the court as to its jurisdiction in actions of this nature, over land severed from the public domain, and land that has not been so severed.' The eases from 2 Mason and 17 Johnson, cited by the court in support of this distinction, illustrate an entirely different principle. It is not disputed, that all offences committed upon any portion of the territory within the boundaries of a State, in places other than those “ ceded” are cognizable in the State tribunals. The cases in Mason and Johnson, involved alone the inquiry, whether the crimes for which the prisoners stood charged were within the State or federal jurisdiction? Whether the places where the offences were committed, were such as the Constitution of the United States gave Congress “ exclusive legislation” over? This is not the question in this case. The question here is, has a State court jurisdiction of a suit in which the United States are substantially the parties defendant, though not named as such on the record? If the officers of the United States, having the lawful possession of land severed from the public domain, can be expelled by the judgment of the court, they could be expelled also in cases where the land was not so severed. The analogy drawn from the Mason and Johnson cases proves too much ; because, if the application of these cases by the court be correct, they would prove that the federal tribunals had jurisdiction of crimes committed upon the public domain within the limits of a State, which, we believe, has never been pretended. In the Fort Dearborn case, the jurisdiction of the Illinois courts was not sustained because the land in dispute had been severed from the public domain, for, in fact, the land was still a part of the public domain. If that case maintains the jurisdiction of the State judiciary in suits for land, substantially against the United States, it extends that jurisdiction over the whole public domain in like cases.
      It is certainly true that no officer can plead the authority of his sovereign in justification of a trespass. In the great McLeod case, the Supreme Court of New York held McLeod responsible, notwithstanding he acted under the authority, or order of his sovereign, and our books are full of eases in which punishments have been inflicted upon officers, acting under orders of the Government, because no authority can justify a tort. In the case of Osborne v. Bank of the United States, cited by the court, Judge Marshall, expressly says, that “the exemption of the State from suability, is no objection to the proceedings against its officers, for executing an unconstitutional law.” It is readily admitted, that if the defendants in this ease, were sued for a trespass, or a tort, or held possession of the land by violence, the “ exemption of the” United States “ from suability, would be no objection to the proceedings against their officers.” But such is not the ease. In the case of Cary et al. v. Curtis, 3 Howard, 236, Daniel, J., in delivering the opinion of the court says: “ That the government [of the United States] as a general rule, claims exemption from being sued in its own courts. That although, as being charged with the administration of the law it will resort to these courts as means of securing this great end, it will not permit itself to be impleaded therein, save in instances forming conceded and express exceptions." See, also, 7 Mass. 259, and McCarty y. Gould, 1 B. & Beatty, 389.
      
        Re-hearing refused.
      
     