
    FENDALL’S CASE.
    Reginald Fendall, administrator of Lammond, v. The United States.
    
      On the Proofs.
    
    
      The United States brought am action against Lammond and others upon a bond. Lammond pleaded non est factum, nil debet, statute of limitations, a/nd set-off for compensation as cleric. Verdict and judgment for the defendants. Lam-mond’s administrator now sues for compensation as cleric. The United States plead Lammond’s indebtedness to them as a set-off. The record of the former trial is put in evidence. There being no explanatory evidence to shoio the matters actually submitted to and passed tipon by thejivry, the case is remanded for such evidence. The claimant moves at chambers to set aside the order and for a rehearing.
    
    I. Where the Government brings its action against a disbursing-officer for a balance of public moneys in his hands, and he pleads as a set-off salary due, the cross-demand thus set up may be used strictly as a set-off against the Government, i. e.^to reduce or extinguish its demand against the defendant, and a court of tho District of Columbia will have jurisdiction to that extent.
    II. Where it cannot be determined by an inspection of the record of a former trial whether a verdict that the plaintiff take nothing and the defendant go without day went upon the defendant’s plea of non est factum, nil debet, or set-off, evidence aliunde the record is necessary to show the matters which were submitted to and passed upon by the jury.
    III. Where a party moves for a rehearing upon a point presented at the trial and considered in the disposition of the case, and where there has been no misapprehension in the nature of a mistake of fact, the decision must be regarded as final unless one of the judges who rendered the judgment complained of desire a re-argument. Iu such cases the motion will be submitted by the judge at chambers to the other judges. If one desires a re-argument it will be sent to the law docket; otherwise it will be overruled.
    
      
      The Reporters' statement of the case:
    The petition in this case set up that on the 8th day of July, A. D. 1873, the petitioner was legally appointed and sworn by the supreme court of the District of Columbia administrator of the personal estate of Peter Lammond, deceased, who at the time of his death was a citizen and resident of the District aforesaid. That the said Peter Lammond was at one time a disbursing-clerk in the Interior Department, and subsequently a clerk of the .first class, at a salary of $1,200 per annum, in the Third Auditor’s Office, unto which latter position he was appointed April 26, 1866, and was paid his salary from and including that date to January 6,1869. In January, 1869, an order was issued stopping his pay, and he was not paid from and including the 7th of January, 1869, to the 20th of April, 1869, when he was removed. His salary for the time the stoppage continued, not including Government tax, was $345.76. The reason for this stoppage of Lammond’s pay was because upon a settlement of his accounts as disbursing-clerk of the Interior Department by the proper officers, it was the opinion of these officers that his accounts showed a balance due by him to the Government. Subsequently suit was entered in the supreme court of the District of Columbia by the United States against Lammond and his sureties upon his bond, to recover the amount of the supposed deficiency. This suit came on for trial on the 14th of April, 1873, and was decided in favor of Lammond and his sureties by a verdict and judgment. This judgment determines finally that there was no deficiency in Mr. Lammond’s accounts, and establishes his right to the amount of salary accrued and withheld on account of his supposed deficiency. '
    The defendants in the present?action filed the following plea of set-off:
    “And now comes the Attorney-General on behalf of the United States, and for a further plea in this behalf, by leave of the court, says that the said claimant ought not to maintain his aforesaid action against said defendants, because he says that said Peter Lammond, said intestate, before the commencement of this suit, and at the time of his death, to wit, on the 20th day of April, 1866, at tbe city of Washington, was indebted to the United States, said defendants, in the sum of $5,000 of lawful money of the United States, for this, that whereas, on or about and before the 3d day of November, 1856, the said Peter Lammond was duly and according to law appointed, by the Secretary of the Interior, a disbursiug-clerk for the Department of the Interior, which appointment was duly accepted by him; and that on or about and after the said 3d day of November he entered upon the discharge of tbe duties of said disbursing-officer, and so remained until on or about the 25th day of April, 1866, the duties of said office being to receive, disburse, and properly account for all such moneys as he should receive from the United States as such disbursing-officer, and to return on demand all such moneys as should not have been properly disbursed; and that said Peter Lammond, as such officer, in his life-time, received of the United States, said defendants, large sums of lawful money of the United States, to wit, the sum of $100,000, but the said Lammond, while such officer, neglected to properly disburse or account for said $5,000 of said moneys so received by him as such officer as aforesaid, and has hitherto neglected and refused so to do, and said Lammond in his lifetime, and said claimant, as such administrator, since his death, have neglected and refused, and still do neglect and refuse, to pay over or account to said defendants for said sum of $5,000, or any part thereof, although heretofore often requested so to do, which said sum, before and at the time of the commencement of this suit, was and still is due and owing from said claimant-administrator as aforesaid to the said defendants by reason of the premises, and this the said defendants are ready to verify. Wherefore said defendants will set off against any amount (if any) that may be found due from defendants to said claimant, as alleged in his said petition, and demand judgment against said claimant-administrator, as aforesaid, for the balance of said $5,000, according to the statute in such case made and provided.”
    
      Messrs, Durants Hornor for the claimant:
    Under Revised Statutes, 367, the compensation of regular clerks of the first class is $1,200 annually. Under Revised Statutes, 168, the compensation of temporary clerks is the same as that of regular clerks of like rank.'
    
      Therecord from the Supreme Court of the District of Columbia is conclusive on the other question involved, which is that the petitioner's claim is extinguished by a set-off. (Packet Co. v. Sickles, 5 Wall., 581; Aurora City v. West, 7 Wall., 82; Beloit v. Morgan, 7 Wall., 619.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    If the former action was determined upon the issue raised by the plea of nil debet, the plaintiff is right; if, however, it was determined on the plea of non est factum, he is not. Failure to prove the execution of the bond by each and all the defendants entitled all to judgment; in other words, if any defendant was entitled to judgment on this plea all were, because a judgment ex contractu cannot be severed, and no presumption can arise that the joint action was defeated on a defense common to all the defendants.
    Again, a defense arising from the bond itself, even if common to all the defendants, such as the plea of statute or invalidity of the bond, under the plea of non est factum, would not bar an action brought dehors the bond for Lammond’s original indebtedness. Of the four pleas of defendants, therefore, the plaintiff is confined to the one nil debet to create the estoppel he here seeks to set up.
    In the case of Packet Company v. Sickles, (5 Wall., 580,) Nelson, J., said, (p. 592:) “If the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties.” “If it be not shown” (i. e., either from therecord or aliunde) “that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.”
    Inasmuch, therefore, as $3,600 of the amount demanded might have been determined, on the plea of set-off, and the whole demand might have been determined on the pleas of statute of limitations or non est factum, it cannot be said that the verdict necessarily involved the consideration of the plea of nil debet. (See Braden v. The United States, 10 O. Ols. R, 412.)
    The case of Aurora Gity v. West, (7 Wall., 82,) on page 103, re-asserts the doctrine (stated supra) of Packet Company v. Sickles.
    The broad statement, in Aurora City v. West, that “ whatever might have been within the scope of the pleadings in the former suit must be held as concluded by the judgment,” should be viewed through the circumstances of that case. There the judgments relied upon as estoppels were judgments on demurrer, and the issues were issues of law. In the light of their then recent decision, in Packet Company v. Sickles, where the estoppel was raised on a judgment upon issues of fact, it cannot be considered that the Supreme Court, in Aurora City v. West, meant to declare the law for any estoppels other than those by judgment upon issues of law. The special plea of defendants, filed February 12, 1877, asserts a counter-estoppel, and the plaintiff’s former plea of set-off, accompanied by the bill of particulars, brought before the jury the very claim for which he now sues; if “whatever might have been within the scope of the pleadings in the former-suit must be held as concluded by the judgment,” his present claim is barred.
   Nott, J.,

delivered the opinion of the court:

In this case it cannot be determined by an inspection of the record whether the judgment and verdict in the Supreme Court of the District in favor of the defendant there, the claimant here, went upon his plea of non est factum, of nil debet, or of set-off.

The learned counsel for the claimant has replied to this objection of uncertainty that the Supreme Court of the District had no jurisdiction of the set-off, and hence that it could not have furnished ground for the verdict. But a majority of the judges are of the opinion that the cross-demand against the United States, which the defendant in the other court sought to use against the plaintiffs there, was one which might have been set up against the Government and used strictly as a set-off within the intent and reasoning of the Supreme Court in Tillou’s Case. (7 C. Cls. R., 18.)

This case is therefore remanded to the general docket, with leave to the parties to show, aliunde the record, the matters which were submitted to and passed upon by the jury in the former suit.

Peck, J.,

dissented.

Subsequently at Chambers the claimant moved for a rehearing. The following are the motion-papers, and the opinion filed by the judge at Chambers, disposing of this motion:

“In this case the counsel of petitioner respectfully asks that the court may grant a rehearing and set aside the judgment pronounced herein on the 7th May, 1877, and in support of this ' application the following suggestions are presented:
“ The petitioner claimed $345.76 balance of salary due his decedent as a clerk in theDepartment of the Interior. To this defendants pleaded in offset that petitioner was at the date of his death, 20th April, 1876, indebted to them in the sum of $5,000, to which the petitioner, by way of replication, said that on 27th February, 1869, defendants brought suit in the Supreme Court of the District of Columbia against petitioner’s decedent for the, money set up in the defendants’ plea of offset, and on 14th April 1873, judgment went in favor of petitioner’s decedent. To this replication defendants put in a rejoinder denying the fact, and on this issue the parties went to trial.
“The burden of proof was on the petitioner, who showed by a record from the supreme court of the District of Columbia, in a suit in which defendants were plaintiffs and petitioner’s decedent and the sureties on his official bond were defendants, that the same claim, now offered in set-off, had been then set up against them; that they had pleaded: 1st, mow est factum; 2d, no cause of action within five years; 3d, nil debet; 4th, set-off of $ — ■——, and that the jury found a verdict ‘in favor of the defendants,’ whereupon the court gave judgment ‘ that the plaintiff’ (the United States) ‘take nothing by its suit, and the defendants’ (petitioner’s decedent and his sureties) ‘ go without day.’
“The meaning of the verdict was that all the issues were found in favor of the petitioner’s decedent. What is the meaning of this in law? It clearly means that the United States recover nothing from the defendant in that case, and that the plea of set-off is sustained. But as in a case where no recovery is had by the United States no judgment against them on a plea of set-off can be given, therefore the Supreme Court of the District of Columbia gave no judgment on the plea of set-off against petitioner’s decedent. The case of Tillou, as decided by the Supreme Court of the United States, (6 Wall., 484, and 7 C. Cls. B., 18,) is precisely in point. In that case Tillou was one of the executors of Eckford, who had been surety on the bond of Swart-wout, collector of the port of New York. Tillou set up various pleas, and among them set-off. The verdict was for the defendant, and the, jury found a fixed sum in his favor against the United States, for which Tillou sued in this court, where it was allowed, but the Supreme Court held that such a judgment against the United States was a nullity.
Tillou’s case was decided in the United States Supreme Court at December term, 1867.
The case of petitioner’s decedent was tried in the Supreme Court District of Columbia, in April, 1873, and with the former' as precedent before it, the United States recovering nothing, there could be no judgment of offset against them.
If this be the correct view of the matter, as we insist it is, it would be a vain thing for us to look for proofs of what the jury decided, when that matter is set at rest by the record we have before us.
We respectfully ask, therefore, that the court will revise the judgment ordering this case back to the general docket, and give judgment in favor of petitioner.
May 14, 1877.
DUBANT & HOBNOB,
For Petitioner.
At Chambers, July 2,1877.

Nott, J.,

filed the following opinion:

The claimant moves for a rehearing, and to set aside an order remanding this case to the trial docket for further evidence. The point upon which it is thought the court erred was a point presented at the trial and considered in the disposition .of the case. Where there has been no oversight or misapprehension, in the nature of a mistake of fact, a decision upon a point must be regarded as final by the court unless one of the judges who joined in rendering the judgment complained of should desire a re-argument after examining the grounds upon which it is asked. In that event the motion presented in the first instance at chambers will be sent to the law docket for hearing. If no member of the court desire to have the motion heard, it will be denied at chambers.

I have accordingly submitted the claimant’s motion to those of tbe judges wbo are present, and am authorized to say that none desire a re-argument of the case. The other judges before whom the ease was heard being absent from the city, the motion cannot be submitted to them now. The claimant must elect whether he will proceed during the vacation to take further evidence, or to resubmit this application for a rehearing at the November sittings.  