"When a foreign sovereign comes into court for the purpose of obtaining a remedy, then, by way of defence to that proceeding (by counter-claim, if necessary), to the extent of defeating that claim, the person sued may file a cross claim . . . for the purpose of en abling complete justice to be done between them;" 29 W. R. 125, per James, L. J. In England where a foreign sovereign brought suit to restrain defendants from, using funds in their hands for certain purposes, and the latter set up a claim for damages, it was held that, while, by suing in England, he submitted to the jurisdiction for the purpose of allowing discovery in aid of the defendant, he did not thereby submit to what was in its real nature a cross action; [1898] 1 Ch, 190.
The rule that a tort can be ratified so as to make an act done by a servant in the course of the principal's business and purporting to be done in his name his tort, and exonerate the servant, is applied to a greater or less ex tent when the master is the sovereign; O'Reil ly de Camara v. Brooke, 209 U. S. 45, 28 Sup. Ct. 439, 52 L. Ed. 676.
A prerogative which is undoubtedly to be recognized is the immunity from an affirma tive judgment against him; People v. Denni son, 84 N. Y. 272; U. S. v. Hooe, 3 Cra. (U. S.) 73, 2 L. Ed. 370.
Where the United States had libelled a vessel for injuries caused by a collision with a government vessel, a cross libel could not be entertained; Bowker v. U. S., 105 Fed. 398; but this case is criticised in 15 Harv. L. Rev. 59, where it is suggested that the same principle should be applied as in the case of individuals, where fault is shown in both and that a proper exercise of the dis cretion of the court would have been to stay the original proceedings until the United States should consent to the filing of the cross libel, or, if both were at fault, the judgment should be entered only upon condition of pay ment of a proper contribution to the defend ants, which was the proceeding followed in 3 Wm. Rob. 38.
The doctrine of inviolability extends to securing immunity from lien on government property which would disturh the govern ment's possession; Briggs v. Light-Boat, 11 Allen (Mass.) 157; 89 L. T. 374. Where en forcement of a lien has been permitted, it has apparently not been remembered that there is a difference between its existence and its enforcement ; The Revenue Cutter No. 1, Brown, Adm. 76, Fed. Cas. No. 11,713. The United States courts had no jurisdiction over a public armed vessel in the service of a sovereign at peace with us; U. S. v. Goodwin,
7 Cra. (U. S.) 110, 3 L. Ed. 284. Similar cases were decided in England with respect to a warship of the United States; L. R. 4 P. D. 39; and one owned by the Roumanian govern ment and employed for public purposes in connection with national railways in that country; L. R. 16 P. D. 270. On the same principle a court cannot, by proceedings in rem, dispose of a fund belonging to a foreign government in the hands of agents residing within its jurisdiction; Leavitt v. Dabney, 37 How. Pr. (N. Y.) 264; nor compel the defend ants, who held the proceeds of merchandise shipped by a foreign government, to apply the same, pursuant to a contract of hypothe cation, to a loan contracted by that govern ment; L. R. 8 Eq. 198. But the general prin ciple of immunity would not prevent the join der of a foreign state with other defendants for the purpose of giving it an opportunity to appear and thus enable the court to decide more intelligently with respect to the de mands against the other defendants; Man ning v. Nicaragua, 14 How. Pr. (N. Y.) 517; and where a foreign government had made a contract in England and lodged money in the hands of an agent there for the payment of what would become due under the contract, the court would not refuse relief to the con tractor because the contract was with a for eign government, nor because it did not ap pear in the L. R. 7 Ch. 550.
This immunity has not always been observ ed as to property of the United States. It has been subjected to a carrier's lien for freight; Union Pac. R. Co. v. U. S., 2 Wyo. 170 ; and a lien for salvage; The Davis, 10 Wall. (U. S.) 15, 19 L. Ed. 875 (though it could not be enforced by a suit against the United States); Mid such a lien was allowed on the cargo of a vessel carrying United States mails, but there was no allowance for the mails, as they could not be sold for salvage; The Merchant, 4 Adm. Rec. 544, Fed. Cas. No. 9,435; nor made to contribute for general average; U. S. v. Wilder, 3 iumn. 308, Fed. Cas. No. 16,694; and this has been said to have always been the law in England; 1 Pars. Mar. L. 324; contra; an innkeeper was held indictable for obstructing the passage of the mails by detaining the coach horses under a claim of an innkeeper's lien; U. S. v. Barney, 3 Hughes 545, Fed. Cas. No. 14, 525. If, however, to recover the property which has been taken from its possession, the government resorts to the process of the courts to regain it, it would seem to be a waiver of the exemption; The Siren, 7 Wall. (U. S.) 152, 19 L. Ed. 129.