Opinion of the Court.

has agreed to pay the costs and expenses of such suit, and to keep the said George Cashman safe and harmless from all counsel fees, costs, and charges to be paid or incurred therein :

"Now, therefore, this contract and indenture, made in pursuance of said resolution between the County of Sacramento, the party of the first part, and George Cashman aforesaid, party of the second part, witnesseth: That the party of the first part, the said County of Sacramento, does hereby stipulate, covenant, and agree to supply the said George Cashman with the services of competent attorneys, to wit, A. L. Rhodes, S. C. Denson, and Robert T. Devlin, to institute, conduct, and manage such suit, and does further covenant and agree to pay all the charges, costs, and expenses thereof or connected there with, and to hold and keep him, the said George Cashman, safe and harmless from any costs, counsel fees, charges, or expenses to be paid or incurred in the institution, conduct, and prosecution of the said suit.

"The said George Cashman, the party of the second part, does hereby stipulate, covenant, and agree not to compromise, dismiss, or settle the said suit without the consent of the County of Sacramento, and to allow the said county and the attorneys aforesaid in its behalf to manage and conduct the said suit to the same extent and in the same manner as if such suit had been commenced by and was prosecuted in the name of the said County of Sacramento.

"In witness whereof the parties hereto, the party of the first by the chairman of its board of supervisors, he being, by a resolution of said board passed September 22, 1885, duly thereunto authorized, have hereunto set their hands and seals this 26th day of September, 1885.

"This contract being executed in duplicate, each party retaining one.

[Seal of the Board of Supervisors

of the County of Sacramento.]

"COUNTY OF SACRAMENTO,

"By L. H. FASSETT,

Chairman Board of Supervisors.

"GEO. CASHMAN.

[SEAL.]"

Opinion of the Court.

Upon this showing, there being nothing against it, the court granted the motion. To reverse an order to that effect this appeal was taken.

It is very apparent from the face of the agreement, on which the right to the dismissal depends, that the suit was originally brought by the County of Sacramento for its own benefit, and that the name of Cashman was used with his consent, because the county could not sue in its own name in the Circuit Court of the United States. The recital shows in express terms that the suit was brought for the benefit of the county, because it desired to restrain the miners from depositing the débris from their mines in the bed of the river, and it could not sue therefor in its own name in the courts of the United States. For this reason the county provided the attorneys who were to "institute, conduct, and manage such suit," and it agreed "to pay all the charges, costs, and expenses thereof or connected therewith, and to hold and keep . Cashman safe and harmless from any costs, counsel fees, charges, or expenses to be paid or incurred in the institution, conduct and prosecution of the suit." And Cashman, on his part, agreed "not to compromise, dismiss, or settle the suit without the consent of the and to allow the

county, attorneys

county and the

in its behalf to manage and conduct the suit to the same extent and in the same manner as if such suit had been commenced and prosecuted in the name of the county." From the very beginning the suit was and is in reality the suit of the county, with a party plaintiff "collusively made," "for the purpose of creating a case cognizable" by the Circuit Court of the United States under the act of March 3, 1875. While, therefore, the "dispute or controversy" "involved" is nominally between Cashman, an alien, and the defendants, citizens of California, it is "really and substantially" between one of the counties of California and citizens of that State, and thus not "properly within the jurisdiction" of the Circuit Court.

The order dismissing the suit is

Affirmed.

Opinion of the Court.

HART v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

Argued March 25, 1886.-Decided April 26, 1886.

Under section 7 of the act of June 25, 1868, ch. 71, 15 Stat. 76, the Secretary of War transmitted a claim against the United States to the Court of Claims. That court found the claimant to be a person who had “sustained the late rebellion," and that the claim accrued before April 13, 1861, and as the payment of such a claim was forbidden by joint resolution No. 46, approved March 2, 1867, 14 Stat. 571, it decided that it had no jurisdiction to proceed to judgment on the reference made, but could only find the facts and dismiss the petition: Held, no error.

Although, before the joint resolution was passed, the claimant had received from the President a pardon "for all offences committed by him arising from participation, direct or implied, in the rebellion," the pardon did not authorize the payment of the claim, nor did the joint resolution take away anything which the pardon had conferred.

The case distinguished, as to the effect of the pardon, from Ex parte Garland, 4 Wall. 333; Armstrong's Foundry, 6 Wall. 766; United States v. Padelford, 9 Wall. 531; United States v. Klein, 13 Wall. 128, and Carlisle v. United States, 16 Wall. 147, 151.

The act of 1868 did not extend to claims covered by the joint resolution.

The case is stated in the opinion of the court.

Mr John J. Weed for appellant.

Mr. Solicitor-General for appellee submitted on his brief.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. Section 7 of the act of Congress, approved June 25, 1868, ch. 71, 15 Stat. 76, enacted as follows: "It shall and may be lawful for the head of any executive department, whenever any claim is made upon said department involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars; or where the decision will affect a class of cases or furnish a precedent for the future action of any executive department in the adjustment of a class of cases, without regard to the amount involved in the particular case; or where any authority, right,

Opinion of the Court.

privilege, or exemption is claimed or denied under the Constitution of the United States; to cause such claim, with all the vouchers, papers, proofs and documents pertaining thereto, to be transmitted to the Court of Claims, and the same shall be there proceeded in as if originally commenced by the voluntary action of the claimant. Provided, however, That

no case shall be referred by any head of a department unless it belongs to one of the several classes of cases to which, by reason of the subject-matter and character, the said Court of Claims might, under existing laws, take jurisdiction on such voluntary action of the claimant. And all the cases mentioned in this section which shall be transmitted by the head of any executive department, shall be proceeded in as other cases pending in said court, and shall, in all respects, be subject to the same rules and regulations; and appeals from the final judgments or decrees of said court therein to the Supreme Court of the United States shall be allowed in the manner now provided by law. The amount of the final judgments or decrees in such cases so transmitted to said court, where rendered in favor of the claimants, shall in all cases be paid out of any specific appropriation applicable to the same, if any such there be; and where no such appropriation exists, the same shall be paid in the same manner as other judgments of said court." These provisions are now embodied in sections 1063, 1064 and 1065 of the Revised Statutes.

Under them the Secretary of War, on the 14th of October, 1873, transmitted to the Court of Claims the claim of Henry B. Hart, as the assignee of Simeon Hart. Thereupon, on the 9th of January, 1874, Simeon Hart, for the use of Henry B. Hart, filed in that court a petition, claiming to recover from the United States $50,391.52. In July, 1874, the United States filed a plea setting up a counter-claim of $9000 against Simeon Hart, and in August, 1874, a plea setting up a bar by a six years' limitation after the first accruing of the claim. In December, 1874, Simeon Hart having died, the suit was revived in the name of A. B. Hyde, as his administrator. In January, 1877, the claimant demurred to the plea of the statute of limitation, and the demurrer was sustained. 12 C. Cl.

Opinion of the Court.

319. On the 9th of May, 1877, the claimant filed an amended petition, to which, three days afterwards, the United States filed a traverse, and a plea setting up a bar by a six years' limitation. In October, 1878, the claimant replied to the plea of counter-claim, that the $9000 had been paid by Simeon Hart. In November, 1879, the United States, by leave of court, filed a special demurrer to the petition and the amended petition, but it was overruled. In June, 1880, James P. Hague, as administrator of Simeon Hart, and successor of Hyde, was substituted in place of Hyde, as claimant. At the same time the claimant filed an amended petition, praying that any assignment of the claim to Henry B. Hart be treated as void, and withdrawing items four and five of the claim contained in the original petition.

The case was then heard, on the evidence, and on the 7th of June, 1880, the court filed its findings of fact and conclusions of law, and an opinion, 15 C. Cl. 414, whereby the petition was dismissed, and a judgment to that effect was entered on that day. In January, 1881, a motion for a new trial was granted, and the case was reheard, on additional evidence, and, on the 16th of May, 1881, the court filed its findings of fact and conclusions of law, and an opinion, 16 C. Cl. 459, whereby the petition was dismissed, and a judgment to that effect was entered on that day, from which the claimant appealed. Since the appeal Juan S. Hart, as administrator, in place of Hague, has been substituted as appellant.

The findings of fact, on the second hearing, which are quite voluminous, are set forth at length in the report in 16 C. Cl. Those which are material, in the view we take of the case, are as follows: On the 3d of March, 1861, Simeon Hart was residing at El Paso, Texas, and was in active sympathy with those who were inciting to rebellion. In April, 1861, he joined the insurgents, and then and afterwards furnished them with supplies, money, and means of transportation to carry on their invasion and campaign into New Mexico. On the 3d of November, 1865, the President granted to him a full pardon and amnesty for all offences committed by him arising from participation, direct or implied, in the rebellion. Hart claimed cer