CHAPTER V.

INFORMATIONS AND BILLS IN EQUITY.

§ 131. Informations and bills by the United States. The first proceeding in a suit in equity is the preparation and filing of the first pleading. The suit is begun when the complainant's first pleading is filed. This was either an information, a bill, or an information and bill.

Formerly in England the attorney-general or solicitor-general could file an information on behalf of the crown, or of those who either as idiots and lunatics partook of its prerogative, or whose rights, as those in charities, were under its particular protection. The law officers of the royal consort had the same right. If the suit did not immediately concern the rights of the crown, a relator, who sustained and directed the litigation, who it seems might prevent the discontinuance of the suit by the Attorney-General without his consent, and who was responsible for the costs, was usually joined with the officer in whose name it was filed.

The main distinction between an information and a bill was that, whereas the latter was in the form of a petition, to the court, in the former the officer that filed it stated the case by way not of petition or complaint, but of information to the court of the rights which the crown claimed on behalf of itself or others, and of the invasion or detention of those rights for which the suit is instituted. If the relator had a personal interest in the relief sought, his personal complaint was joined to and incorporated with the information given to the court by the officer of the crown; and the pleading was termed an information and bill. The proceedings upon an information

§ 131. 1 Farmers' L. & Tr. Co. v. Lake Street El. R. R. Co., 177 U. S. 51, 44 L. ed. 667; Humane Bit Co. v. Barnet, 117 Fed. 316. Se supra, § 52.

2 Mitford's Pl., ch. 1; Story's Eq.

Pl., 8; People v. North San Fran cisco Ass'n 38 Cal. 564; AttorneyGeneral v. Delaware & H. R. Co., 27 N. J. Eq. 1; s. c., 27 N. J. Eq. 631; Newark Aqueduct Board v. Parson, 45 N. J. Eq. 394.

could only abate by the death or determination of interest of the defendant. If, however, the information were filed at the instance of one or more relators and all died, the court would not allow the cause to proceed till an order had been obtained giving leave to insert the name of a new relator, and one had been inserted accordingly. Otherwise, proceedings upon informations were substantially the same as upon bills, except that great laxity of practice was permitted when informations were filed on behalf of charities.3

4

5

In the courts of the United States, it has been held to be the proper practice for the Government to sue in equity in its own name, by a bill similar to one filed by a private citizen; but a pleading styled an information, filed on behalf of the United States, being in substance a bill, was sustained as such; and so was one filed on behalf of the United States in his own name by the District Attorney for the Northern District of New York. The most usual instances of these bills at the present time are in suits to enforce the Interstate Commerce Act and the Anti-Monopoly Law and suits or proceedings to cancel certificates of citizenship or of naturalization.

6

It has been held that bills in equity will be sustained when filed by the United States to determine a controversy as to: the boundaries between a State and a Territory; 10 to compel the cancellation of illegal contracts between a railroad com

3 Mitford's Pl., ch. 1; Story's Eq. Pl., $8.

4 Benton v. Woolsey, 12 Pet. 27, 9 L. ed. 616; U. S. v. Hughes, 11 How. 552, 568, 13 L. ed. 809, 816: s. c. as Hughes v. U. S., 4 Wall. 232, 18 L. ed. 303; Miss. & Mo. R. Co. v. Ward, 2 Black, 485, 492, 17 L. ed. 311, 314; U. S. v. Union Pac. R. Co., 98 U. S. 569, 25 L. ed. 143; Moffat v. U. S., 112 U. S. 24; U. S. v. Minor, 114 U. S. 233, 29 L. ed. 110; U. S. v. Am. Bell. Tel. Co., 128 U. S. 316, 32 L. ed. 450.

5 U. S. v. Hughes, 11 How. 552, 568, 13 L. ed. 809, 816; s. c. as Hughes v. U. S., 4 Wall. 232, 18 L. ed. 303. See Benton v. Woolsey, 12

Pet. 27, 9 L. ed. 987. In Hawaii, at the suit of the Attorney General, an injunction was granted forbid. ding a railroad company from decreasing the intervals at which cars were run upon its line, from one every ten minutes to one every twenty minutes. Territory of Hawaii v. Honolulu Rapid Transit & Land Co., Sup. Ct. of Hawaii, January 20, 1908.

6 Benton v. Woolsey, 12 Pet. 27, 9 L. ed. 987.

7 Infra, see § 151.

8 26 St. at L. 209; infra, § 151a. 9 Infra, 151b.

10 U. S. v. State, 143 U. S. 621, 36 L. ed. 285.

pany and a telegraph company, when legal proceedings were authorized by statute; 11 to enforce their priority of payment out of a trust fund; 12 to cancel a land patent,13 or a patent for an invention 14 which has been obtained by fraud, or a land patent which has been by a mistake of law issued in violation of a statute.15

A suit to set aside a land patent issued by mistake can only be maintained when there is no substantial evidence to support the finding of the Department.16 When a patent for land has been procured from the United States by fraud, the Government may elect to ratify the patent or to sue for damages.17 The Government's right of election whether to rescind a patent or to ratify it and sue for damages may be exercised by the Attorney General through the District Attorney of the United States for the proper district.18 It is no objection to the suit that the beneficial interest in the land has become vested in an individual who will acquire a right thereto by a decree in favor of the Government.19 When land covered by a patent obtained by fraud has been acquired by a purchaser in good faith for value without notice,

11 U. S. v. Union Pac. Ry. Co., 160 U. S. 1, 40 L. ed. 319.

12 Hunter v. U. S., 5 Pet. 173, 8 L. ed. 86.

18 Moffat v. U. S., 112 U. S. 24, 28 L. ed. 623; U. S. v. Trinidad Coal & Coke Co., 137 U. S. 160, 34 L. ed. 640; J. J. McCaskill Co. v. U. S., 216 U. S. 504, 54 L. ed. 590; U. S. v. Gunning, 18 Fed. 511; s. c., 22 Fed. 653; La Rogue v. U. S., 239 U. S. 62. Such a bill cannot be filed by an individual. Briggs v. United Shoe Mach. Co., 239 U. S. 48.

14 U. S. v. Am. Bell Telephone Co., 128 U. S. 315, 32 L. ed. 450; U. S. v. Gunning, 18 Fed. 511; s. c., 22 Fed. 653; Noble v. Union River Logging R. Co., 147 U. S. 165, 37 L. ed. 123.

15 Mullan v. U. S., 118 U. S. 271, 30 L. ed. 170; McLaughlin v. U. S., 107 U. S. 526, 27 L. ed. 621; Western Pac. R. Co. v. U. S., 108 U. S

510, 27 L. ed. 806. See U. S. v. Reed, 53 Fed. 405.

16 U. S. v. Debell, C. C. A., 227 Fed. 760. The Act of March 2, 1896, ch. 39, 29 St. at L. 42, provides: "No suit shall be brought or maintained, nor shall recovery be had for lands or the value thereof, that were certified or patented in lieu of other lands covered by a grant which were lost or relinquished by the grantee in consequence of the failure of the government or its officers to withdraw the same from sale or entry." This does not apply to a patent applied for after its enactment. U. S. v. St. Paul M. M. Ry. Co., 247 U. S. 38, Sup. Ct. 525, 62 L. ed. 1130.

17 U. S. v. Koleno, 226 Fed. 180. 18 U. S. v. Koleno, C. C. A., 226 Fed. 180.

19 U. S. v. Great Northern Ry. Co., 254 Fed. 522.

the Government has no remedy against him.20 The burden of proof is upon the defendent to show that he is a purchaser in good faith for value.21 Where land has been recently patented under a grant, and there is basis for a claim that it has passed into the hands of a purchaser in good faith, a bill may be filed by the United States against the original grantee in the alternative for the recovery of the land or the price as the facts may appear.2 22 When the last purchaser has not paid and the statute of limitations has run against him, but not against his grantor, he may be made a defendant and directed to pay the purchase price with interest and cost, a lien being decreed upon the land to secure the payment.23 In a suit to set aside a patent for fraud, the United States is not bound to reimburse the fraudulent entryman for his improvements.24

It seems that a bill cannot be filed to enforce a forfeiture of a land grant for failure to perform a condition subsequent, unless expressly authorized by Congress.25 But a bill was sustained when filed to declare the forfeiture of an easement for water storage and a right of way therewith connected under the Act of March 3, 1891,26 of failure to construct the reservoir described in the application.27 The United States may file a bill to prevent the waste by the removal of oil and minerals from public lands to which it has a clear title.28 But in such a suit defendants who have bought oil from those who were operating upon the land cannot be joined since the Government has an adequate remedy at law against them in an action for conversion.29 It has been said that in order to obtain appointment of

20 U. S. v. Koleno, C. C. A., 226 Fed. 180. For a case where a transfer to a corporation organized by the same persons as the defendants was ignored see U. S. v. Exploration Co., 225 Fed. 854.

21 Wright-Blodgett Co. v. U. S., 236 U. S. 397; Krueger v. U. S., 246 U. S. 69; U. S. v. Kirk, C. C. A., 248 Fed. 30.

22 Oregon & C. R. Co. v. U. S., C. C. A., 144 Fed. 832.

23 U. S. v. Cooper, 217 Fed. 846, 24 U. S. v. Howard, C. C. A., 247 Fed. 455.

25 U. S. v. Northern Pac. Ry. Co., 177 U. S. 435, 439, 441, 44 L. ed. 836.

26 26 St. at L. 1101, Comp. St. § 4934.

27 Union Land & Stock Co. v. U. S., C. C. A., 257 Fed. 635.

28 U. S. v. Midway Northern Oil Co., 232 Fed. 619; U. S. v. Devil's Den Consol. Oil Co., 236 Fed. 973 (reversed on another point, Devil's Den Oil Co. v. U. S., C. C. A., 251 Fed. 548).

29 U. S. v. Midway Northern Oil Co., 232 Fed. 619.

a receiver of the land in such a case, it is necessary for the bill to show that a proceeding is pending in the land office to determine the right of the defendants to the land which they claim under a fraudulent entry.30

The United States may sue to recover land or to set aside a cloud upon the title thereto such as a patent,81 or a deed by an Indian who has no power to convey, 32 or for an injunction against the taking of oil and gas from Indian lands; 33 for the benefit of Indians who are not competent to sue. To such a suit an Indian interested is not a necessary party.3 34 The United States are bound by the same equities that would affect the Indian if they were competent to sue.3 35 When a statute authorized the Secretary of the Interior to sue in the name of the United States for the use of certain Indian tribes and "to pay from the funds of the tribe interested the costs and necessary expenses incurred in maintaining and prosecuting such suits;" he was authorized to employ private counsel to conduct the suits, and it was said that, in the absence of such a provision in the statute, the defendant could not object that the suit was not brought by a law officer of the Government.36

The United States may sue to recover duties on imports of which the Government has been defrauded.37 The United States

30 Devil's Den Consol. Oil Co. v. U. S., C. C. A., 251 Fed. 548. See Folk v. U. S., C. C. A., 233 Fed. 177.

31 U. S. v. Allen, 000 U. S. 000; U. S. v. Gray, C. C. A., 201 Fed. 291; Chase v. U. S., C. C. A., 222 Fed. 593; U. S. v. Debell, C. C. A., 227 Fed. 760.

32 U. S. v. Debell, C. C. A., 227 Fed. 760.

33 U. S. v. Mackey, 214 Fed. 137; see Folk v. U. S., C. C. A., 233 Fed. 177.

34 U. S. v. Debell, C. C. A., 227 Fed. 760.

35 Folk v. U. S., C. C. A., 233 Fed. 177.

36 U. S. Rea-Read Mill & Elevator Co., 171 Fed. 501. Where a proceeding to restrain certain carriers and shippers from giving and

receiving rebates on interstate shipments was instituted at the direc tion of the Attorney General, who retained special counsel nominated by the informing witness, and defendants made no application for a stay of proceedings in order to object to the appearance of such special counsel; it was held that they were not entitled to a dismissal on the ground that prosecutor had agreed with the Attor ney General to bear a deficiency in the expense or the prosecution after applying the balance of the Attor ney General's appropriation applicaable to that purpose. U. S. v. Milwaukee Refrigerator Transit Co. et al., 145 Fed. 1007.

37 U. S. v. John A. Heitz, 238 Fed. 1002.