On the 15th of 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 and 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 the 20th day of 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.
'P. V. DANIEL.
S. J. GHOLSON.'
Upon this certificate the case accordingly came up.
It was argued by Mr. Johnson (Attorney-General), for the United States, no counsel appearing upon the other side. He contended that, the United States not being liable to be sued except with its own consent given by law, and there being no law giving such consent in this case, jurisdiction did not exist, and cited the case of United States v. McLemore, 4 Howard, 286.
Mr. Justice DANIEL delivered the opinion of the court.
This case comes before us from the Circuit Court for the Southern District of Mississippi, upon a certificate of division in opinion between the judges on the following facts and questions certified from that court.