This language in Tindal v. Wesley causes the doctrine declared in United States v. Lee to appear more plainly to be that the court still holds to the doctrine that any suit against officers of a State, the judgment or decree in which will be conclusive of the rights of the State, will be regarded as a suit against the State. Whence it follows that an action of ejectment against persons in possession of property title to which is claimed by the State, or alleged by the defendants to be in the State, will be considered to be not a suit against the State only in those cases where there is failure to produce at least prima facie evidence of title in the State, and in these only if the action of ejectment is treated as a possessory one and not one determining title.

This latter principle is definitely stated in Stanley v. Schwalby,74 in which an action of ejectment against persons holding property for the State was held to be a suit against the State, because in that State such an action was regarded as one determining title. With reference to the doctrine declared in the Lee case the court emphasize the fact that the judgment affirmed was simply that the plaintiffs recover against the individual defendants the possession of the property in controversy and costs, "and," the court declare, "this court distinctly recognized that, if the title of the United States were good, it would be a justification of the defendants; that the United States could not be sued directly by original process as a defendant, except by virtue of an express act of Congress; and that the United States would not be bound or concluded by the judgment against their officers." 75