let you sue the United States provided the case is tried without a jury, and we will not let you sue otherwise."

At the time the seventh amendment was adopted he could not sue at all. He could not now sue if the statute were repealed. It is open to him to sue or not to sue as he sees fit. If he does sue he must do so in the manner and subject to the limitations prescribed by law.

So much is clear enough. How is it when the Government seeks an affirmative judgment against him? Its right to sue him is not the creature of statute. That right has always existed. If the demand for which it brought suit was legal rather than equitable it could not deprive him of his right to a jury trial. The Supreme Court answers, Congress, tells him in advance that if he avails himself of the privilege of suing the Government in the special Court organized for that purpose, he may be met with a set-off, counter claim or other demand of the United States upon which judgment may go against him without the intervention of a jury. If he makes use of the privilege thus granted, he must do so subject to the conditions annexed by the Government to its exercise.2

128. No Relief Other Than a Judgment for Money May Be Given Against the United States.-Certain petitioners sought to have the United States compelled specifically to perform contracts for the conveyance of timber lands. The Court below held that they were entitled to the relief prayed. The Supreme Court reversed the judgment and decided that Congress had not given the Courts power to decree any relief other than the payment of money.1

129. Limitation as to Suits Against the United States. Suits against the United States must be brought within six years after the cause of action arose.

Married women and infants whose claims first accrued during coverture or minority, and idiots, lunatics, insane

2 McElrath vs. United States, 102 U. S. 426.

1 United States vs. Jones, 131 U. S. 1.

persons and persons beyond the seas at the time the claim accrued, may bring suit within three years after the disability has ceased. None of such disabilities operate cumulatively.

130. The United States Can Not Be Sued for a Tort. --Congress did not intend to make the United States liable to suits for torts. Such torts can be committed only by officers, agents or employees of the United States. It is not willing to assume the responsibility for their actions. There are many reasons of public policy why it should not do so. Courts, in applying the statute, will give effect to the obvious intent of Congress. They will, therefore, look through the form of the pleadings to see what the actual origin of the claim is. If the claimant is attempting to hold the Government liable for a tort, he will fail, no matter how ingeniously his contentions may be stated.

Someone was hurt in a Government elevator in the postoffice building in New York. He brought suit against the United States, alleging that the Government had contracted to carry him safely and had broken its contract. The Supreme Court said:

1

"Nothing short of an Act of Congress can make the United States responsible for a personal injury done to a citizen by one of its employees who, while discharging his duties, fails to exercise such care and diligence as a proper regard to the rights of others required." "Causing harm by negligence is a tort" *** "A party may in some cases waive a tort; that is, he may forbear to sue in tort and sue in contract, where the matter out of which his claim arises has in it the elements both of contract and tort. But it has been well said that a right of action in contract cannot be created by waiving a tort, and the duty to pay damages for a tort does not imply a promise to pay them upon which assumpsit can be maintained."

Bigby vs United States, 188 U. S. 400.

CHAPTER V.

OF WHAT CONTROVERSIES DISTRICT COURTS HAVE JURISDICTION CONCURRENT

WITH STATE COURTS.

131. Jurisdiction of District Court Concurrent With That of Courts of the States.-In some classes of cases the plaintiff may at his election bring suit either in a District Court of the United States or in a State Court. In legal phrase the jurisdiction of the District Courts is as to such cases concurrent with the Courts of the several States. Many of the most important controversies which are brought before the Federal Courts might have been taken into the State tribunals had the parties so wished.

The first paragraph of section 24 of the Judicial Code enumerates the classes of controversies which most frequently arise and in which there is this concurrent jurisdiction. It

says:

"All suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same State claiming lands under grants from different States; or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and" (a) "arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or" (b) "is between citizens of different States, or" (c) "is between citizens of a State and foreign States, citizens or subjects."

This section is modeled upon and is an amplification and in some respects an amendment of section 11 of the original Judiciary Act. That section has been many times amended, the more important of such amendments prior to the adoption of the Judicial Code having been made by the Act

of March 3, 1875; by the Act of March 3, 1887,2 and by the Act of August 13, 1888.3

132. Jurisdiction Over These Classes of Cases Formerly in Circuit Court. It is only since the abolition of the Circuit Courts that the District Courts have had any jurisdiction over the more important classes of cases mentioned in the first paragraph of section 24. Formerly such suits, if instituted in the Federal Courts at all, had to be brought in the Circuit Courts.

133. Jurisdiction Under Section 24, Paragraph 1, Limited to Suits of a Civil Nature at Law or in Equity. -The first paragraph of section 24 limits the proceedings ever which it gives jurisdiction to the District Courts to suits of a civil nature at common law or in equity. This same limitation couched in this precise language was made by section 11 of the original Judiciary Act and by every revision thereof. Everyone of these words has been judicially construed many times. It has been said that every line of the Statute of Frauds is worth a subsidy, by which, of course, is meant that before any line of that famous enactment received its final interpretation a sum equal to a subsidy had been spent in litigation over it. Very much the same may be said of each one of the phrases now under consideration. Each of them will be briefly discussed.

134. What is a Suit?-A beginning may be made with the word "suits." What is a "suit" within the meaning of the first paragraph of section 24?

CHIEF JUSTICE MARSHALL said:—

"The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a Court of justice by which an individual pursues that remedy" *** “which the law affords him. The modes of proceeding may be various, but if a right is litigated between

118 Stat. 470.

224 Stat. 552. 25 Stat. 433.

parties in a Court of Justice the proceeding by which the decision of the Court is sought is a suit.'

It

The definition is broad. It has been much relied on. is as sound and as accurate today as it ever was. It is true, nevertheless, that there are legal controversies which everybody calls suits and yet which may not be taken into the Federal Courts. It may be that some of them are clearly proceedings in a Court of Justice. Individuals there pursue the remedy which the law gives them. Rights are therein litigated between parties, who seek to obtain the decision of the Court, yet the Federal tribunals may not It has been sometimes said that the pass upon them. Courts of the United States have no jurisdiction over them because they are not suits, as in this connection Congress intended to use the words. Some nice and finely drawn reasoning has been used, to distinguish them from similar proceedings which everybody admits to be suits in every sense of that word. Much legal ingenuity and acumen has been exhibited in discovering, if not in creating, these distinetions. One may still believe that their real or supposed existence is not the reason why the Federal Courts have no jurisdiction over such matters. The Supreme Court has always kept steadily before it the dual nature of our Government. It has always been careful to reduce to a minimum the opportunities for clashing between State and Federal sovereignty. It has believed, and has been right in believing, that Congress was anxious that there should be no unnecessary friction, albeit Congress might not always have used words of precision. It has therefore habitually construed the general language of statutes in such manner as to avoid or reduce the chance of collision, and has thereby given effect to what it felt was the real intention of the law-makers. It has accordingly held that when Congress made a general grant to the Federal tribunals of jurisdiction over all suits of a civil nature between certain classes of litigants, or in which certain issues were involved, it

1 Weston vs. The City Council of Charleston, 2 Peters, 464