DE ARNAUD
v.
UNITED STATES.

*492 Mr. H.O. Claughton and Mr. Horatio J. Lauck for appellant.

Mr. Assistant Attorney General Dodge and Mr. Conway Robinson for appellees.

MR. JUSTICE SHIRAS delivered the opinion of the court.

The court below, passing by other grounds of defence, dismissed the petition upon the proposition that it disclosed a case within the ruling of this court in the case of Totten, Administrator, v. United States, 92 U.S. 105.

That was a case where one Lloyd asserted that, under a contract with President Lincoln, he was to proceed South and ascertain the number of troops stationed at different points in the insurrectionary States, procure plans of forts, and gain such other information as might be beneficial to the government of the United States, and report the facts to the President; for which services he was to be paid $200 a month.

The Court of Claims found that Lloyd had performed the services mentioned, but the members of that court being equally divided in opinion as to the authority of the President to bind the United States by the contract in question, the court decided against the claim and dismissed the petition.

On appeal, this court found no difficulty as to the authority of the President in the matter. As commander-in-chief of the armies of the United States he was undoubtedly authorized to employ secret agents to enter the rebel lines and obtain information respecting the strength and movements of the enemy; and it was also said that contracts to compensate such agents are so far binding upon the government as to render it lawful for the President to direct payment of the amount stipulated out of the contingent fund under his control.

*493 But the court was of opinion that the service stipulated for in the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed. And the court held that a secret service, with liability to publicity in a suit subsequently brought against the government, would be impossible; that, as such services are sometimes indispensable to the government, its agents in those services must look for their compensation to the contingent fund of the department employing them, and to such allowance from it as those who dispense that fund may award; that the secrecy which such contracts impose precludes any action for their enforcement; that the publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery.

The counsel of the appellant do not impugn the doctrine of the Totten case, but they contend that the Court of Claims erred, in the present case, in treating the contract and services of Arnaud as being of a character that brings the case within such doctrine. It is denied that Arnaud's functions were those of a spy, but were those of a "military expert."

If it were necessary for us to enter into the question thus suggested, it might be difficult for us to point out any substantial difference in character between the services rendered by Lloyd and those rendered by Arnaud; but the record discloses other defences so plainly applicable that we are relieved from considering whether the new-fangled term "military expert" is only old "spy," "writ large."

On January 6, 1862, after the claimant had performed all the services described in his petition, he presented a claim to the War Department, in the following form:

"No. 22. — The United States to Charles de Arnaud, Dr.

"For special services rendered the United States government in traveling through the rebel parts of Kentucky, Tennessee, etc., and procuring information concerning the enemy's *494 movements, etc., which led to successful results, (as per certificate hereto appended,) $3600."

On this claim the Quartermaster General, on January 9, 1862, endorsed the following:

"In view of the certificate of General Grant of 30th Nov. and the more general certificate of Major-General Fremont, of 2d January, herewith, covering all Mr. Arnaud's services, the sum of thirty-six hundred dollars appears to me a not unreasonable compensation. I state this at Mr. Arnaud's earnest request.

Thereafter, on January 14, 1862, the Secretary of War made the following endorsement on said claim:

"I have considered this claim, and cannot bring my mind to the conclusion that the sum charged is not exorbitant. I am willing to allow $2000 in full of the claim, and the dis. clerk, War Depart. is authorized to pay Charles de Arnaud that sum.

The claimant was thereupon paid by said disbursing clerk of the War Department $2000, and gave the following receipt:

"The United States to Charles de Arnaud, Dr.

"For services and expenses as special agent of the gov't, $2000.

In the absence of allegation and evidence that this receipt was given in ignorance of its purport, or in circumstances constituting duress, it must be regarded as an acquittance in bar of any further demand. Baker v. Nachtrieb, 19 How. 126; United States v. Childs, 12 Wall. 232, 243.

*495 No further or other claim was made by the petitioner until September 4, 1886 — a period of twenty-four years. Even, therefore, if the claimant was not effectually barred by his voluntary acquittance, his claim was assuredly barred by the statute of limitations, which provides that every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition, setting forth a statement thereof, is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives, as provided by law, within six years after the claim first accrues. Rev. Stat. § 1069.

In Finn's case, in many respects resembling the present one, this court construed and applied that statute in the following terms:

"In any view this claim belonged to the class which, under the express words of the act of 1863, Rev. Stat. § 1069, were `forever barred,' so far, at least, as the claimant had the right to a judgment in that court against the United States. The duty of the court, under such circumstances, whether limitation was pleaded or not, was to dismiss the petition; for the statute, in our opinion, makes it a condition or qualification of the right to a judgment against the United States that — except where the claimant labors under some one of the disabilities specified in the statute — the claim must be put in suit by the voluntary action of the claimant, or be presented to the proper department for settlement, within six years after suit could be commenced thereon against the government. Under the appellant's theory of the case the Second Comptroller could open the case twenty years hence, and upon the claim being transmitted by the Secretary of the Treasury to the Court of Claims, that court could give judgment upon it against the United States. We do not assent to any such interpretation of the statute defining the powers of that court.

"The general rule that limitation does not operate by its own force as a bar, but is a defence, and that the party making such a defence must plead the statute if he wishes the benefit of its provisions, has no application to suits in the Court of Claims against the United States. An individual may waive *496 such a defence, either expressly or by failing to plead the statute, but the government has not expressly or by implication conferred authority upon any of its officers to waive the limitation imposed by the statute upon suits against the United States in the Court of Claims." Finn v. United States, 123 U.S. 227, 232, 233.

The claimant cannot avail himself of the saving clause in the statute suspending its operation in favor of idiots, lunatics, insane persons, and persons beyond the seas, because such suspension is only in favor of those laboring under the specified disabilities at the time the claim accrued; and it is conceded that plaintiff's mental incapacity did not begin until after his claim had accrued.

Nor can it be successfully claimed that a disability subsequently arising would suspend the operation of the statute. See Bauserman v. Blunt, 147 U.S. 647, and cases therein cited.

In no view that we can take of this case can we find any just foundation for a claim against the government, and the judgment of the court below, dismissing the claimant's petition, is accordingly

Affirmed.