In the case of United States v. Peters,29 decided in 1809, a judgment was given against the heirs of the state treasurer of Pennsylvania, for money improperly received and held by him as such treasurer but not actually paid into the state treasury. The State of Pennsylvania among other grounds set up that the judgment, though in form against an individual, was in fact against itself and as such prohibited by the Eleventh Amendment. As to this Chief Justice Marshall, who rendered the unanimous opinion of the court, declared: " The right of a State to assert as plaintiff, any interest it may have in a subject, which forms the matter of controversy between individuals, in one of the courts of the United States is not affected by this Amendment; nor can it be so construed as to oust the court of its jurisdiction, should such claim be suggested. The amendment simply provides that no suit shall be commenced or prosecuted against a State. The State cannot be made a defendant to a suit brought by an individual; but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one State against citizens of a different State, where a State is not necessarily a defendant. ... It certainly can never be alleged that a mere suggestion of title in a State to property, in possession of an individual, must arrest the proceedings of the court and prevent their looking into the suggestion and examining the validity of the title."

29 5 Cr. 115; 3 L. ed. 53.

Marshall then goes on to show that in the case at bar the property in question had in fact never been paid over to and thus gone into the possession of the State.