*1 TERM, 1892. of Statement the Case. v. SCHWALBY. STANLEY OF COURT OF STATE TEXAS. SUPREME TO ERROR THE THE February Submitted January 6,1893. 6,1893. Decided No. against jurisdiction there is no distinction between suits purposes of For directly, against property. its suits litigation a is involved in States United Where authority Congress, parties act technically of an they are not by way suggestion, intervene attorney for stay adjust judg- the suit or either case the court will in such part government. rights according to disclosed on ment Lee, 196, distinguished this case. 106 S. U. United States brought an a defendant to action become When a, defence, if by bar the statute of limitations is valid citizen the up and maintained. set up States in be set United' adverse The defence of estate, and, proof, supported try real title to an action to defence. valid (cid:127) States, authority possession under their an officer When trespass them, try court in in a state claimed is sued estate of real authority estate, and that as a that claim sets title to the action, highest court of the an adverse defence validity question of an exercised under the draws in State jurisdiction that decision gives to review n of error. on writ was an action of Eebru- trespass try brought This in the District Court of Bexar Texas, ary.28, County, David S. and three other Stanley defendants, by Mary whose J. husband, A. was Schwalby, U. afterwards Schwalby, n to recover a made certain or lot of party plaintiff, parcel in;the of San Mrs. claimed land Antonio. title city Schwalby of the lot, as one of the three heirs of her father, to one-third B. McMillan, deceased; Duncan one subsequently Joseph intervened and to one-third of the asserted title Jr., Spence, made him Duncan W. McMil- lot conveyance through of said heirs. lan, another Judgment whole lot was defendants averment prayed, upon entered or title. without right
STANLEY v. SCHWALBY.
Statement of the Case. (cid:127) The land in of a reservation of question part military and was used and as a occupied military *2 and David S. and codefendants his were officers post, Stanley of the of the United and States, army holding occupying land under of the United States. not They pleaded that held guilty, lawful of the specially and as officers and property had
had title and of possession, conveyance duly since recorded, 1875, as innocent year for value purchasers and notice; also the and the three-year, five-year, statutes of limitation ten-year of and a Texas, claim for allow- for ance and valuable permanent improvements.
The United States District Attorney appeared he and acting, alleged, instructions “by through from the General of and States,” joined on behalf of the United States of the other de- pleas in.the fendants.
The District Court of that the United States could set statute limitations, whether three, or five, ten years, otherwise, of the United States pleas to that effect were ordered to be stricken out.
On the trial evidence was adduced on both sides bearing the title and the the.United purchase property States and that one the value improvements. appeared and source of had- executed was the common Dignowity the lot in to Duncan deed of controversy .statutory warranty but 1860, B. 9, dated and McMillan, May acknowledged that then McMillan, recorded until 30, 1889; September children 5, three him 1865, widower, leaving died February IT., was born 11, September whom Mary surviving, plaintiff, 18, 1871; II. and married J. 1848, Schwalby, January afid 2, 1850, conveyed feorn November to W.,'was Duncan 26, 1889, March Jr., intervenor, Joseph Spence, deed March 29, and filed for record that day acknowledged (cid:127)-- died, testate, and terms 1875, Dignowity April, month, his bds that which was will, duly probated in her own 1, widow, 1875, right, who, his passed May her husband’s released will, and as executrix independent TERM, 1892. in Error. Defendants Counsel of San Antonio all title city her.right, quitclaimed known as the McMillan lot,”- in the lot interest question, covenant warranty person by, claiming estate. or his of San under or city Dignowity through other lots this and three deed, by warranty Antonio conveyed October 1875, and recorded dated June for military purposes. testified that he was General Stanley brigadier general that his codefendants were officers army, took and held same, officers. the evidence tended show that
It was contended took with and the United States notice of previous city had never that McMillan McMillan; sale to paid purchase that the unrecorded deed was never delivered full; price held escrow; McMillan, paid *3 Dignowity on lot from 1860 to the taxes 1875. in favor
The District Court judgment gave plaintiffs had title that each to one-third of Schwalby Spence, (cid:127) whole, the lot and for the and also in favor possession for $1521 improvements, between the value thereof and the difference amount being due for from the United States the use and found occupation Both parties excepted premises. judgment therefrom. The Court Texas Supreme appeal perfected and rendered reversed judgment, judgment dismissing action as to the United recover States; plaintiffs others, and- defendants, from Stanley and the sum of in two hundred dollars, lot question, of the use said land, the value occupation together costs; to review which this writ of error was in out. The advance sued of' the official reported, in 19. 261. W. series, S. Rep.
Mr. Assistant for Mawry in plaintiffs General error.
Mr. A. H.
defendants
Garland
error.
511
v.
STANLEY
SCHWALBY.
case,
Supposing
properly
it could
no limitation under the Texas law as
plead
present,
no tribunal was
for these
relief
open
parties
especially
get
it was
it, and, therefore,
that its
quite right
pleas
struck
of limitation were
out. United States
130
v. Insley,
S.
States v.
263;
U.
&c. Rail
Nashville, Chattanooga
118 U. S.
120;
v.
And, necessary consequence, following States could not that the United held .Court properly an act of absence of be made a suit Congress party — had instruc- district attorney not even if the authorizing do not tions instructions appear to make it a S. 433. See also 98 U. record. v. United Carr with as not interfered (cid:127)cases case was above cited. The latter to this in the Lee Case. point defend for these instructions were probable offi- as United States who the land claimed hold
parties, t *4 the United' States party;, cers its and .not to make name, it a to make instructions but as held such court, ' Therefore, force. of no would have been party, given, certainly dismissal from the case was of the United States ” correct. Mr. Chief Justice Fuller delivered court. TEEM, 152, 154, In The Wall. Mr. Justice Siren, 7 who Field, spoke rule, the familiar court,' the com adverting
mon law cannot be sued his own courts sovereign and the without his consent, which the rule ground upon “ said: This doctrine of rested, the common law equally authority nation, supreme applicable n States. cannot be at law They subjected legal proceedings or in consent; their whoever institutes equity must his case within the proceedings bring authority some act of Such is the of this court in Congress. language 436, 444. United States Pet. The same Clarke, exemption extends to the judicial process property and for the same reasons. As observed justly learned who tried this case, there is no distinction judge between suits and suits against government directly, against property.”
If then this suit had been the United directly States against or the of the United* it could not property Státes, have been and it maintained, only it was proposition the United but against officersof brought, United'States individuals, although holding possession under their and as authority belonging them, that it The District proceeded judgment. Attorney as he acting, instruc- alleged, through tions from the .General of the United Attorney filed States,” certain on behalf of the United States, pleas others, among limitation, and for allowance for valuable No improvements. seems,to have arisen the state District Court question as to of the district to do this. The attorney ruled that the United States could not the statutes of plead limitation, therefore struck those out, sustained pleas allowance for claiming rendered plea improvements, in favor of the United for-the value thereof. Court of Texas held that as the instructions of were not found in General the record and no him to act make the United States a empowering Congress either to an action in defendant, a state court party, plaintiff referred to, States could regarded not'be. *5 v. SCHWALBY..
STANLEY Opinion of the Court. and ren- therefore reversed the below
a judgment party the case. dered dismissing judgment has to this action of the Court error The assigned we are the counsel for not been pressed by government it. We should not called upon upon express any opinion it has been that from a remark, however, very early period made, the States is not held that even where technically where the act of of an yet Congress, concerned for the proper government to intervene way by sug- attorney suit be not such case stayed altogether, gestion, dis- to the the court will according rights adjust thus Such on the closed intervening. part .the Cranch, 14Y, case' of The Y wTasthe Exchange, leading of a vessel foreign sovereign having where armed public citizens of the United libelled in a court of been admiralty by had from whom she whom had she belonged his the District order, taken been forcibly foreign port, and the facts, filed Circuit stating suggestion libellants, for the entered a decree disregarding Court having the attor- taken this court, appeal- suggestion, upon dismissed the decree and reversed ney Marshall, and Mr. Justice libel, deliveringi Chief to be a There seems necessity of-the said : court, the court disclosed to that the fact might admitting States.” for the United attorney suggestion.of Attor- the District here were that the instructions Probably and his fellow make defence for General Stanley should ney it wise to and in addition he officers, bring rights thought to the attention by applica- the-Únited States tion-in their name. confined in error is argument plaintiffs limitation, in statutes
disposition pleas setting turn question the decision did not upon respect whether on the bar or wasmot complete, the facts de- perfect view as between'individuals that, although, availed not be fence it-could been made out, might or under the United States.
VOL. cxlvh—33 TERM, the Texas statute relied on it was By provided every “, suit to recover estate against any person peaceable *6 and thereof adverse under title or color of possession shall title, be instituted within three next after the cause years of action and not accrued, shall afterwards.” Title was defined to mean a chain transfer from or under the regular, sovereignty n .ofthe and color of title to mean soil; a consecutive chain of transfer down to the such person possession, if one or more of the muniments were not regular, regis- or not tered “Peaceable duly was registered. possession” as “such as is and continuous, described not interrupted by “ ” adverse suit to recover the estate,” adverse possession defined as “an actual and visible appropriation and continued commenced under a claim of land, incon- right sistent with and hostile to the claim of another.” The statute that five also adverse provided years’ peaceable or estate, the same and “cultivating, using enjoying thereon, taxes under a any, deed or paying claiming should be a bar; deeds ten duly registered,” years’ and adverse with like cultivation, use or peaceable possession, should have a like and also result; that whenever enjoyment, the action of a case of real person recovery Avas barred, estate person having peaceable “ held should be to have full adverse preclud- all claims.” 2 Tex. Civ. 109, Stats. Tit.- c. Sayles’ ing The Court Texas Avas that the bar of not be could or the statute under the interposed by not because States are bound such- stat- no action could as well as because be utes, brought against United States. rule that not are bound and the for it are thus
reason United States v. given Nashville, “ 118 &c. U. S. 125: lit is settled Chattanooga Railway, — doubt the foundation controversy beyond to all public policy, principle applicable governments great that the which forbids interests alike,' should public preju of the officers or diced Avhosecare negligence confided—that are States, asserting rights v.
STANLEY SCHWALBY. as a are not in them bound vested sovereign government, unless has mani- limitations, statute Congress clearly intention should be so bound.” And this fested its declared the court in doctrine was United States v. Insley, force, to be 263, 266, U. S. applicable equal of the statute of limitations in at a suit only question to the of lachés in suit in law, also question equity.” To the same Mr. Justice effect, Story, said: true Hoar, Mason, 311, 313, “The reason, indeed, the law has determined there can be no why negligence or laches no crown, and, therefore, should imputed delay bar its sometimes asserted because the be, right, (though busied for the and, has always therefore, king public good, to assert his within leisure the times limited sub- 1 Bl. is to found in Com. jects, 247,) great public policy revenues and preserving public rights, *7 and of And loss, officers. injury by negligence the public this is sometimes called it in fact is though prerogative right, than, more or reservation introduced nothing exception, benefit, the to all public equally applicable governments. . But, . . of doctrine founded on independently any notion of the same of construction statutes of this prerogative, sort founded intention. prevail, ought legislative Where the is not or government expressly by necessary implica- tion included, to.be clear from nature of the mischiefs ought to be or redressed, used, that the language government itself of was in of before a court contemplation legislature, law would be authorized to such an put interpretation upon In statute. acts of the are meant any general, legislature and direct the acts and of and in citizens;, regulate rights most to them cases, applicable reasoning applies different, often force to the very contrary government itself.” (cid:127) as observed But, Mr. Justice Strong, delivering of the court in Dollar Bank v. United Savings 19 227, 239, Wall. while the is not of bound act king by any Parliament unless he be named therein by special particu lar he take the benefit of words, act any though particular TEEM, 1892. OCTOBEE
516 Opinion tlie of Court. that the rule thus adds, he settled as to the And, not named.. to this crown applicable government; British equally as much of that so royal prerogative belonged king or universal trustee, of enters as in his parens patrio» capacity state as it does into our into of much political principles constitution. the British on rule is stated The Law of the Chitty general be' Crown, clearly
Prerogatives though avail himself of the of acts of provisions king do not he is not bound as Parliament, particularly him.” it is mention “For all our agreed and expressly benefit of that the shall take act, books King although Case, not named.” Calvin's Col Magdalen he be Rep. 32a; 7 68 The & Buckberd's Case, ; Queen Case, lege Rep. 150; 1 Bl. Com. Leonard, think
We there contrary nothing Rustomjee Q. between where, B. D. The Queen, by. tlreaty Queen China, Emperor Emperor England .and a sum of to the British had money paid due to British from certain account of debts Chinese subjects and it was insolvent, had become held that a who merchants, not lie one of the British would merchants petition a sum of to be due to him money to obtain alleged payment and that the statute of merchants, one of the Chinese to a did not limitations petition right. political apply of her which Her trust with Majesty charged respect no basis for the a court afforded own prosecution subjects limita trustee, and, course, of a a debtor claim against the form of Indeed, tion had no application. .by proceeding even 23 and 24 petition right, simplified regulated *8 34, c. is so far variant from between Yict. proceedings subject' and as to thereunder but subject, give adjudications slight, the under discussion. Tobin v. any, bearing upon question 14 B. 505. (N. C. Queen, S.) in of the ancient rule and its that the It was view derivation in Wisconsin, of Wisconsin Baxter v. 10 State, Court a,sa defence the statute cannot be set held that while founded the rule to an being action by government, v: STANLEY SCHWALBY. 517 and of good protection preservation public interest, public furnishing any support instead posi- tion that the State could not have the as defendant benefit sustain would conclusion. statute, fully opposite
And v. 18 it Gilbert, Johns. so, People pointed that the rule out illustration same of construction by way statute costs, which the State applied concerning may them recover, because not though included pay obliged terms of statute. general ' It is obvious that ground exemption govern- ments from or the bars of laches has statutory consequences instance, no of individuals, existence think the we cannot be maintained because proposition not bound statutes of limitation therefore the citizen can- by is. not be bound as himself and between the government. Of course, were not bound the laws of by ” the word State, the statute would include yet person
them as a Art. body politic 3140; corporate. Sayles, v. Martin State, Texas, 61,
This us to consider the brings objection States cannot obtain or be in title adverse- protected through unless an action lie them for the possession, would no follows means that because recovery property. an action could not be a court therefore brought justice, so as adverse as to might regarded ripen into In title. the case of a government, protest against for redress in the occupancy application proper quarter would seem be quite potential destroying presump- tion of the or of the abandonment of his possession, claim when action another, cannot as the brought, action itself when it can.
In Vasse, Pet. Comegys 193, 216, quoted applied Mr. Lamar in Heard, Williams v. U. S. Justice it 543, was remarked Justice “It uni Mr. is not Story: it be one test of versally, though ordinarily right, be enforced in a court of Claims and debts justice. due. from a are not en sovereign ordinarily so capable forced. Neither the of Great nor the Britain, King govern- *9 OCTOBER, TERM, 1892.
Opinion of the Court. in is suable courts ment of ordinary will Yet, for debts--due either. who doubt, justice debts, are However, institution very rights?” as the fact these claimants could shows, is, this suit this at time such an action as between have brought took date when filing 'pf this petition. in Mr. Justice v. Macon Miller,
As stated by Cunningham Railroad, U. & S. be Brunswick may accepted nor can as that neither the United States a State unquestioned in their defendant in this be sued as country in in limited class of cases which a State consent, except in made a this court virtue original party when conferred the Constitution. jurisdiction Accordingly, seen is an ever it can be that State indispensable clearly to to the rules which court, enable according govern pro relief it will refuse take juris cedure, grant sought, which in in the desire to do that diction. But justice, many can exten the courts see will be defeated an extreme case's by- some instances sion of gone long principle, the State not to be a party, though way holding necessary be more or less the decision. its interests affected by. cases are those where an individual is' sued Among.these to another in some act tort for injurious regard person in which his is that has acted defence he property, orders government'. cases he is not
In these sued as an officerof government, the court is not ousted individual, as jurisdiction out To make he asserts of such officer. authority because he must show that was sufficient that defence his authority him. In this class included law to protect .to held action of U. S. where the Lee, ejectment its essential character an action of trespass, be in as the court to restore the plaintiff power Kauf- and the defendants Strong judgment, part.of author- their sued set man, individually trespassers, court held of the United which this officers ity . and therefore insufficiént as defence. unlawful, v. SCHWALBY. STANLEY. a case the of an
In such exercised under validity *10 States is drawn in and where the' United the final question, or decree in the of a State in which a highest judgment could its decision be had against validity, exists jurisdiction on in to review decision writ of this court error. before us is an action of
The case to- trespass. try officers of the United against brought exercising in under the United States, holding possession in out the of view intervention property controversy. Laying, the District in by the direction making the case party, considering in its relation to the defences General interposed by Stanley and his officers, fellow we are unable to the perceive why if bar, could not bé of. availed statutory complete, Although not bound statutes of the limitation, United States Ave as have seen Avereentitled to take the benefit of them, inas much anas action could have been at time after brought any adverse the- taken, against govern ment Avhom was done Avhomit was re through tained, the cannot be raised them that the objection against statute could not run because of to The inability alleged sue. was committed as the servants of trespass defendants, if -and their command, showed States yet in themselves individuals, in requisite though, fact under whose were authority they the defence rvas made out. when treated as acting, Agents of the statute. Ware may rely principals upon protection S.U. 170. Galveston City Company, In view, mere trespassers, subject Avere to suit and adverse during statutory period peaceable could after its be found not, possession, they expiration, guilty of an from the owner. tort unlawful withholding original which of the action in order to render gist must maintainable the officers could of them under
individuals, predicated circumstances.
We refrain from consideration-of thé case upon indicated, but, reasons merits, judgment, .reverse TERM, Dielcl, Opinion: Dissenting J. not inconsistent- for further the cause proceedings and remand with opinion. reversed.' Judgment Field Justice dissenting'. Mr. of the court
I am unable majority agree or in the reasons rendered this case, one title. founded. The action trespass try it is styled in Texas determine the title form fact, is, adopted and the controversy, principles governing It was commenced in.a their govern disposition. ejectments Bexar. Texas, the State county District Court of action, first alleges pleading petition, .The her husband, was, herein who is joined by U. Schwalby, Mary of certain seized de- the first 1889, lawfully of February, *11 Of same in Bexar, in the county holding scribed premises after- thereof; to the that and entitled fee possession simple, unlawfully on the second defendants wards, February, and her therefrom, entered dispossessed premises of the her, out a them from description and setting withholds in concludes a. full. The petition prayer premises and have recovery judgment posses- plaintiff and for costs. sion premises, n a of a reservation of the were military part, premises in and were Texas, occupied military States post. and David S. his codefendants were defendant, Stanley, The. and in- States, as such were officers army held the for -himself land, and, of and answering possession and claim, that as individuals do not he them, says and they in the land claim to, title controversy, they have no in thereof as and officers are lawfully possession agents ” “ in and that the United holds States Herself and that the de- in title controversy, complete property enters, of the United as an officer States fendant, possession, of not allegations charged trespasses guilty plea in the petition. thus to the United States as “herself,
The designation given criti- of their is in a drawn one attorneys open pleading STANLEY SCHWALBY. Opinion: Meld,
Dissenting J. Constitution, both as, before and cism, since the civil the United States have been war, always designated Article section thus, III, 3, declares that plural; treason the United shall consist war only levying or in to their against them, enemies, adhering them aid giving ” XIII, Article comfort; since the civil adopted war, declares that “neither nor slavery ex- servitude, involuntary as a for crime, whereof the shall cept punishment been exist in convicted, shall the United duly States or any- to their place subject jurisdiction.”
In the amended answer filed the defendants they pleaded not had lawful guilty, alleged officers of the United States, which had title and since 1875 conveyance recorded, and that were' innocent duly purchasers valuable consideration, without notice any outstanding title. also three They pleaded years’, five specially and the ten years’, statutes of limitations, and set years’ claim for allowance for and valuable permanent improvements.
I with the if this that, action had been fully agree States, it the United could not be sus- brought directly against for it the axioms o'f the law that tained, among govern- to civil ment, State or amenable at national, process the suit of a citizen, consent submit private except upon to such rendered jurisdiction. Any judgment proceedings would be void, assented to whether necessarily voluntarily rendered money specific property. be doubted this case of whether appearance ,a without further Attorney, District *12 evidence their sufficient. of assent to the process, answer of District the States that the they appear under of the of the instructions Attorney, ^General the of held to be insuffi- Court Texas not cient, as the that did instructions of officer appear him to there of record, was no act authorizing Congress- make action in the state the United States a party court. the the of That court, therefore, reverséd it lower far as was the action so court, dismissed against TERM, Opinion: Field, Dissenting J. - It also held that the United States. In statute of limitations. this decision not the I could plead this court and, that court was clearly think right, although that it would seem from doctrine, does approve expressly it be its might implied language I the statute. From any could implication emphati- plead whole which statutes of dissent. The limita- theory upon cally for of whether founded, are .or repose litigation, upon tions from time, lapse obliga- performance, presumption that, or other causes, from period' tions alleged, during has had full .the prescribed statute, party right, his demand hindrance, to against prosecute legal failed to do so. As statute, óf has the bar invoking the court it would be below, contrary observed by justly to hold that was intention law-making reason be failure should barred by an right bring power at same when, time, time, action within prescribed denied.” the action was bring States for bar can no such Now, pleaded by with- no action can be instituted them reason that against can no occasion to consent. plead their They out express their can insist because statute, upon such a they always If assent to the action process. judicial immunity not wish the benefit of such a do course, statute. they, State or with- national, The cases where government, benefit of law for named, invoke the may passed out being of cases than to a different class very parties, applies private A claims us. timp one before specified presenting statute, we prescribed government one which the vain for cases like the before us, look in irj. suable the time during prescribed by government, time as a bar an action statute, the-lapse may interpose it is subsequently permitted. whenever , that in cases where officers it is admitted But army, or are in national, State posses- or government, can- of them, it for either holding sion -real property, rely action not, recovery, agency their justification character official *13 STANLEY v. SCHWALBY. 523 Dield, Opinion:
Dissenting J. their title in the possession, showing government. must their to show that They way right possession under title. The case of United 106 U. Lee, S. 196,is sufficient to that authority point. Referring case, re In U. S. this court In said: Ayers, case the had been of their plaintiffs wrongfully dispossessed to act under defendants, estate by claiming authority States. That could exist authority as it only was conferred and as. were unable law, to show any lawful under the was held that there to nothing prevent a,s individuals, them for- the individual against wrong See also v. Macon & trespass.” Cunningham Brunswick S. 452. Railroad, U. title of the Establishing and thus own their government showing possession ' to be the action will be defeated. But rightful, the officers or cannot statute of plead limitations in thei'r'own behalf if hold under the United States, and doctrine is, different there maintaining my opinion, error in the decision the court. The action .of plain eject or of ment, try necessarily implies trespass wrong ful of the defendant. He can defeat that only title position by showing ownership party under he or in whom holds But how can he himself. show title or in. himself l If he has a title deed which he ownership can back trace the claim of the he can do so beyond plaintiff ; he but if relies must statute he show adverse posses sion of the in himself for the To period prescribed. property render his it must be a. accompanied by adverse claim of title in himself as the whole ownership or. must continuous, exclusive not referable- world. If other claimant. defendant any admits or that has title, or owns government, other-person^ within the time property^at period prescription, his adverse on which he can alone fails, and possession, rely, his claim of deféated. This doctrine is sustained the whole current of authorities in the English and American will courts, as be seed reference .by 1892. OCTOBER, TERM, Dield, Opinion:
Dissenting *14 and also to of limitations by Angelí,' the statute treatise “on Adverse Posses under the Buswell, chapters the one are cited. also cases See Sedgwick the adjudged where sion,” sec. sec. 729 to Land, 740; of Title on Trial and Wait v. 29; 20 How. Merrimack Lanza, v. De la Doswell Melvin 15 Ward v. Pick. ; Bartholomew, 5 Met. (Mass.) Proprietors, . 420 Burke, 3 Sawyer, and Adams 408; the limitations of actions Texas statute prescribing is not materially different, of real for the recovery the statutes of limita- designated, periods except suit to recover It- every of other States. tions provides adverse any peaceable,and “as person "real estate? title or shall insti- color thereof, under possession next after the cause action shall tuted three years .within ” “ Peaceable and not afterwards.” accrued, possession “ is continuous, such as interrupted by described as suit to recover the estate.” Adverse adverse possession and visible defined as an actual appropriation. a claim .i/ncon- and continued commenced under land, with and hostile another.” sistent claim of cannot show title in the defendants If themselves, 'in hold, or are whom they they trespassers against claim under owner, whether they doctrine that hold undér the private party, the title to which'is not can established, government, allowed set adverse themselves, or, other up limitations, statute of when words, plead they expressly claim or title to the disavow assertion property, upon alone such adverse can be maintained'or available, is, made the statute my judgment, conflict and the whole settled course well de- principles, judicial -in- in- and- State Union. The every cisions England, their own in h are not defendants, by admissions, position such defence.' set