1. Section 659 of the Practice Act of this State applies as well to common law cases as it does to suits in equity. There is no distinction made in the Act, as the Attorney-General seems disposed to urge.
2. The statute is general in its provisions, and governs all cases which by the law may be brought in the Courts of this State. The State instituting a suit against a private individual, places herself upon an equality with the defendant, and every proceeding which would be legal in a suit between individuals, must necessarily be the same between the State and parties brought into Court by her process, or whose interest might be affected by the suit. It is true that the intervenor is an actor, but his action is induced by the act of the State, which hazards his interest in the subject-matterof the suit.
By the judgment of the Court below, the defendant Carothers was permitted to intervene, and whatever defense could be made, Carothers was by law entitled to make; and a set-off is a matter of defense, and was properly pleaded in this case. (6 Wheaton, 411; 8 Peters, 444; 6 Wheaton, 135; 3 Washington C. C. 161; 9 Wheaton, 651; 7 Peters, 16; 8 Peters, 163, 436; 9 Peters, 319; 10 Peters, 125; 15 Peters, 377; 2 How. 711; 11 How. 272; 1 Kent, 321; 5 Monroe, 318.)
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
Admitting the right of Carothers to intervene in this case, his petition must be treated as a declaration or complaint under the statute, and as such is wholly insufficient. The facts set forth therein would be insufficient to constitute a cause of action either in law or equity; and the report of the referee, admitting all that it contains, shows conclusively upon its face, that the intervenor has no legal claim against the State, and was not entitled to judgment.
We know of no law which would warrant the Governor or Attorney-General in making such a contract; in fact, they possessed no such power. If entered into in good faith, it might be the subject for relief at the hands of the Legislature, but is certainly not a cause of legal action.
In absence of any statute to that effect, the State cannot be sued, and the judgment against her is erroneous. Upon the merits of the judgment, we forbear the expression of any opinion.
Judgment reversed.