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.
The United States, as the indorsees of the Mississippi an'd Alabama Railroad Company, instituted an action of assumpsit in the court above mentioned, on a promissory note given by William J. Hill, J. S. Rowland, D. M. Porter, and W. F. Walker to the said railroad" company, for the'sum of four thousand dollars. .• At the November term of the court in 1839, the United States, upon a trial at law upon issues joined, first, upon the plea of non-assumpsit, and secondly, upon the plea of payment of the note before its indorsement and delivery to the plaintiffs, obtained a verdict and judgment in damages for the sum of $ 4,353.32. Upon the suing out of an execution on this judgment, the defendants filed a bill on the equity side of the Circuit Court, and obtained from the District Judge.an injunction, upon grounds which perhaps might, under the pleadings in the caiise, have been as regularly insisted upon at law, between the proper parties, as they could be in equity; but whether forming a well-foünded defence at law, or not, is immaterial in the inquiry now presented. In the bill filed by Hill and others, the United States are made directly parties defendants ; process is prayed immediately against them; they are called upon to answer the several allegations in the bill, and a perpetual injunction is prayed for to the judgment obtained by them. To the bill of the complainants the attorney for the "United States filed in their behalf an answer in extenso, but afterwards moved the court to dissolve the injunction and dis-> miss the bill as to the United States, for want of jurisdiction as to them, upon which motion the order and certificate now before this court were made in the following terms: — “ And afterwards, to wit, at the May term of said court, viz. on the 20th day of May, A. D. 1847, this cause came on to be heard before the Hon. Peter Y. Daniel and Samuel J. Gholson, upon the motion of the United States of America to dismiss this suit as to them, arid 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 *389 should be made in the cause on said motion, one of th'e-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.”
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, or a government representing the sovereign, cannot
ex delicto
be amenable to its own creatures or agents employed under its own authority for the fulfilment merely of its own legitimate ends. A departure from-this maxim can be sustained only upon the ground 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 regulated order or power. Upon the principle here stated it has been, that, in cases of private grievance proceeding from the crown, the petition of right in England has been the nearest approach to an adversary position to the government that has been tolerated; and upon the same principle it is that, in our own country, in instances of imperfect land titles, special legislation has been adopted to permit the jurisdiction of the courts upon the. rights of the government. 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
v.
McLemore, in
Order.
This cause came on to be heard on the transcript of the record .from the Circuit Court of the United States for the Southern District of Mississippi, and on the point or question on which the judges of the said Circuit Court were opposed'in opinion, and. which was certified to this court for its opinion, agreeably to the- act of-Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the motion in behalf of the United States in this cause should have been sustained, and that the bill as to the United States should be dismissed, as having been improvidently allowed. Whereupon it is now here ordered and decreed by this court, that it be so certified to the said Circuit Court.