dissenting opinion, given December 5th, 1850:
I do not think we have any jurisdiction to try and decide this case. It is in substance a suit against the United States, who are not made 'parties, and who cannot be sued. It is not alleged that Mr. Walker, the defendant, owes any money in his own right to the plaintiff. He has no money of the plaintiff in his hands as paymaster, because the United States, whose agent he is, have not admitted the -claim. The comptroller of the treasury cannot, by his consent, transfer to this court the discharge of an executive duty which he and the accounting officers ought themselves to perform. They must construe for themselves the acts of congress applicable to the case, when they are called upon to allow the plaintiff’s claim. We can only obtain jurisdiction or the right to construe these laws affecting the rights of the United States in any case, as I suppose, than a case in which the United States are plaintiffs and Mr. Walker the paymaster is a defendant. If Mr. Walker had paid the money claimed to the plaintiff, and the treasury officers had disallowed it to him in his accounts, and he having money of the United States in his hands retained for the claim, and the United States sued him, a case would arise in which we could give an opinion and render a lawful judgment. In this case it is not pretended we can give judgmént against Mr. Walker, because he personally owes the plaintiff nothing. The judgment we are asked to give, is not against Mr. Walker, but substantially against the United States; we are asked by the judgment to control the comptroller and the accounting officers, which we have no right to do, and which, if we attempted to do, we could not enforce by any compulsory process.
Pacts presented December 5th, 1850, which were not mentioned before DUNLOP, Circuit Judge, made his opinion:
The counsel on both sides, having seen the views taken by DUNLOP, Circuit Judge, desire to add some facts and admissions, which would have been presented if the case had been heard at bar.
First, it is not in substance a suit against the United States, because the defendant admits that he, and not the United States or its officers, suspends the amount claimed by Captain Tyler, and that it is not an official act, but one done to try whether the post at the navy yard is a separate, permanent post. It is admitted that Captain Tyler, commanded at the navy yard station, during the period claimed for. and that he *472is entitled to recover of the defendant, if the court say that he commanded a separate post, or that the navy yard station was a permanent post.
Second, it is alleged that Mr. Walker owes the money — he holds it against both the United States and the defendant — against the United States because he says Captain Tyler is entitled to it; and against Captain Tyler because, though entitled to it if he commanded a separate post, he must first show that such post was a'separate one in fact or in law. It is admitted that the money claimed is in the hands of the defendant to pay the plaintiff, if he commanded a permanent post. The comptroller does not attempt to transfer any jurisdiction, but merely says: as this is a question of law as to whether the post at the navy yard was a permanent post; that question should be decided by the court, and that he would acquiesce in it.
The rights of the United States will not be affected by this decision, as the paymaster will hold the money as a stake holder for Captain Tyler, even if the decision is against Captain Tyler.
In the case of Brown, paymaster of the same corps, v. Captain Twiggs [unreported], upon a similar question of double rations, the court did entertain jurisdiction, although the United States was affected by it, for it decided not only against the paymaster, but also that he was entitled to a credit for it in his public accounts. Besides in Osbern v. Bank of U. S., 9 Wheat. [22 U. S.] 738, the supreme court held that an officer of the government, who holds money under color of law virtute officii, is sueable, and for the very reason that if not the citizen would lose his remedy, as the state or government is not directly the subject of a suit.
But the counsel agree that the only matter to be submitted to the court, upon the evidence filed, is whether the post ,at the navy yard, when commanded by Captain Tyler, was a permanent post garrisoned with troops.