dered judgment in favor of the plaintiff for the possession of the premises. In the course of the proceedings Clarke filed a brief on behalf of defendant, signed, "Robt. M. Clarke, Attorney-General, for defendant." This is the only instance in which he used his official designation. Subsequent to the rendition of said judgment, and before the commencement of the present action, the title of Treadway became, by proper conveyances, vested in the plaintiffs, Adams et al., and Slingerland and his co-State officers went out of office, and the defendants in this case succeeded to the several offices named in the title. Upon the trial of the case the plaintiffs, to show title, offered in evidence the judgment roll in said case of Treadway vs. Slingerland, relying upon it to show that the question of title is res adjudicata. The defendants objected on the ground that the suit was between private parties, to which the State was not, and could not be made a party; that the defendants hold under the State, and are not in privity with Slingerland; and that the State's title is in no way affected by that judgment. After full argument the Circuit Judge sustained the objection, the District Judge dissenting, and the testimony was thereupon rejected under the statute the opinion of the presiding judge for the time being prevailing. As the District Judge had, on a previous occasion, ruled differently, the plaintiffs' counsel had relied upon this judgment roll as conclusive, and were not prepared to try the case on their original title. Upon their application upon the ground of surprise, a juror was allowed to be withdrawn, and the case continued. At the present term, a jury having been waived, the cause was submitted to the court upon stipulated facts, embracing simply the said judgment roll, and other facts necessary to make it applicablethe plaintiffs concluding to rely upon it without putting in and relitigating their original title. The question, therefore, is precisely the same as that upon the former trial as to the effect of the said proceedings and judgment in the case of Treadway vs. Slingerland.

Section 2778 of the Compiled Laws of Nevada provides, that "Whenever the Governor shall direct, or in the opinion

of the Attorney-General, to protect and secure the interests of the State, it is necessary that a suit be commenced or defended in any court, it is hereby made the duty of the Attorney-General to commence such action or make such defense."

After a careful review of the question, with deference to the opinion of the District Judge, I am compelled to say that I am still satisfied with the conclusion reached and announced at the former trial. The oral decision then delivered was taken down by a short-hand reporter, and as it sufficiently presents my views upon the point, I shall adopt it without rewriting. It is as follows:

"With reference to the admissibility of this record, the only question in my mind is whether the judgment in that case can, under any circumstances, be binding upon the State of Nevada. If not binding upon the State of Nevada, it can have no relevancy to the issues in this case.

"It is a well settled principle that the State can not be sued in its own courts without its express consent given by law. Upon that question there is no conflict in the authorities. But the exact point which arises in this case has never been determined by any court that I am aware of. That is to say, it has never been decided that if an officer of the government is a trespasser, and he is sued in his individual character for the trespass, and the judgment enforced against him, although the State may be affected by such judgment that it is concluded by the adjudication. There is no decision to which my attention has been called, or so far as I am aware, determining the effect of such a judgment as against the State-whether it adjudges or conclusively determines its rights.

"If the State can be bound by the judgment against Slingerland, it must necessarily have been substantially and in fact, though not in form, a party to the action. And yet it can not be sued without its express assent given by law. And where the State can not be sued, the decisions are to the effect that the fact of its having been sued, and the State's attorney having in fact appeared, does not change the phase of the question at all. It has been decided in at least two

cases by the Supreme Court of the United States, that the appearance by the United States attorney, without authority, does not give jurisdiction over the United States. In the case of the United States vs. McLemore ( Howard, 286), an action was brought in relation to certain moneys, and "the District Attorney of the United States answered the bill, and the matter of payments was referred to a master, who reported a balance against the United States after paying the judgment. On this report the District Judge, holding the Circuit Court, decreed a perpetual injunction, and that the United States should pay the costs. The Supreme Court held that there was no jurisdiction of this case in the Circuit Court, as the government is not liable to be sued except with its own consent, given by law. Nor can a decree or judgment be entered against the government for costs."

So that notwithstanding the fact that the attorney of the United States appeared without making the objection in the court below, and the case went to judgment, the judgment was held to be void for want of jurisdiction. That decision is affirmed in the case of Hill vs. The United States (9 Howard, 386). In that case a bill was filed on the equity side of the court by Hill and the other complainants against the United States, to injoin a judgment obtained against the complainants by the United States. The United States attorney at first answered fully to the merits, thus appearing and giving the court all the jurisdiction that could be given by a voluntary appearance. A motion was afterward made by the United States attorney to dissolve the injunction and dismiss the bill as to the United States, for want of jurisdiction as to them. In the decision of this case the Supreme Court says:

"The question here propounded without any necessity for recurrence to particular examples would seem to meet its solution in the regular and best-settled principles of public law. No maxim is thought to be better established or more universally assented to than that which ordains that a sovereign can not ex delicto be amenable to its own creatures or agents employed under its own authority for the fulfillment

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merely of its own legitimate ends. A departure from this maxim can be sustained only upon the grounds of permission on the part of the sovereign or the government, expressly declared, and an attempt to overrule or to impair it on a foundation independently of such permission must involve an inconsistency and confusion, both in theory and practice, subversive of regular order or power. * * Without dilating upon the propriety or necessity of the principle here stated, or seeking to multiply examples of its enforcement, we content ourselves with referring to a single and recent case in this court, which appears to cover the one now before us in all its features. We allude to the case of the United States vs. McLemore, in 4 Howard, 286, where it is broadly laid down as the law, that a Circuit Court can not entertain a bill on the equity side of the court, praying that the United States may be perpetually injoined from proceeding upon a judgment obtained by them, as the government is not liable to be sued, except by its own consent given by law.'

"Unless consent is given by the law in a suit against the State or Government the court under these decisions has no jurisdiction, and the fact that the State's attorney appears voluntarily to contest it does not give the court jurisdiction where it was before without jurisdiction. The Supreme Court in these cases declares the judgments to be void for want of jurisdiction, notwithstanding the fact that the attorney of the Government assumed to appear for it. It is held by other authorities that the officer may be sued in his individual capacity. The case of Osborn' vs. The United States Bank (9 Wheaton, 738), affords as good an illustration as any other upon this point. There the Treasurer was sued and an injunction applied for restraining the defendant from disposing of the money seized by him on behalf of the State. Pending the action there was a change in the Treasurer. Counsel were evidently aware of the effect of this change upon the case, because a supplemental bill was filed, making the successor in office a party in order to bind him-thus recognizing the principle that he would not have been bound

by a judgment against his predecessor. But in that case the money had not been mingled with the funds of the State. It had been kept separate in bags by the former Treasurer, was transmitted by him in that manner to, and was kept separate by, his successor. They were sued individually, and it was held that the action could be maintained. Now, undoubtedly, if a judgment had been recovered against the Treasurer he would have been personally responsible for that money; he had committed a breach of the law-the statute under which he acted having been declared unconstitutional. He would have been personally responsible for the trespass. But the court sustained this bill for an injunction on the ground that the money was kept separate in his control, and could be identified as the specific money seized. It is said in the decision that it might have been reached by an action of detinue. The identical money could be reached in the hands of these parties. If the money had been mingled with the money of the State, and had so lost its identity, there is nothing in the decision to indicate what the effect of the judgment against the Treasurer would have been upon the rights of the State. At all events there is nothing to indicate that the judgment against these parties would have been a bar in an action by the State, if the State had afterward sued the bank for the amount of the tax. Of course, if the State had afterward sued the bank for the money the adjudication upon the law would have been authority upon the law of the case. But the facts, I apprehend, would have been open to re-examination. There was a question of fact discussed in the case as to whether the testimony was sufficient to show that the money went into the hands of the second Treasurer, and the court held that it was. But there is nothing to indicate that the matter would have been res adjudicata in an action by the State against the bank. In this case, if the State can not be sued, as it can not be, I do not see how it is possible that a judgment against one of its officers sued in his individual capacity can be conclusive upon the rights of the State, even though the State happens to be interested in the subject matter of the action, and the Attorney-General, in conse