
    James Adams, Trustee, v. The United States.
    
      On the Proofs.
    
    
      The United States, as complainants, file a hill in the United States district court of California. seeking an account as to certain liens for storage, 8?c., upon a steam saw-mill, and a restitution of the same; in which suit the district court renders a decree against the United States for $10,360 and interest. The decree is rendered and is also assigned to third parties after the act 26th February, 1853, (10 Stat. L., p. 170,) forbidding transfers and assignments of claims. The claimant, as trustee, under various assignments, brings this action on the decree, and to recover the amount thereof.
    
    I. The transfer or assignment of a decree rendered against the United States after the act 26th February, 1853, (10 Stat. L., p. 170) regulating the transfers of claims against the United States, is subject to the provisions of that statute, and a transfer made before the “issuing of a warrant for the payment thereof is void.”
    
    II. A decree for the payment of money, rendered against the United States in a suit in the United States district court for California, wherein they were complainants, seeking an accounting and the restitution of certain property, comes within the decision of the Supreme Court in Tillon's case (see post) and is void.
    Mr. Caleb Cushing for the claimant:
    The petitioner in this case is James Adams, a citizen of the United ■ States, resident of the city of Washington, in the District of Columbia, who filed his original petition in this case, on the 2d day of July, A. D. 1855.
    The decree of the United States circuit court for the State of California, for $10,360 and interest thereon from May 1, 1851, to obtain payment of which the petition in this case was filed, was rendered in favor of William S. Heslep and Treat F. Peck on the 8th day of April, 1853. After the rendition of said decree, the said William S. Heslep and Treat F. Peck executed their power of attorney in due form of law, under their hands and seals, and thereby constituted Augustus M. Heslep, of San Francisco, California, their attorney, to receive the amount of said decree from the United States, and to employ an agent, or agents, or' substitute another person in his place for the same; that by power of substitution, dated the 27th day of September, A. D. 1853, the said Augustus M. Heslep, under his hand and seal, and in due form of law, appointed Messrs. Platt & Stewart, of the city of Washington, in his place, attorneys for the purposes, aforesaid.
    That on the 20th day of March, A. D. 1854, the said Platt & Stewart, as attorneys as aforesaid, and in the name and as the act and deed of the said Heslep and Peck, assigned the said decree and all fights thereunder to the petitioner, who thereby became the legal owner thereof; hut the said assignment was, in fact, made to petitioner as trustee, for the sake of convenience, for the benefit of the parties beneficially interested therein, in order to enable any act necessary in the matter to he done in the city of Washington, without the delay and expense of sending to California therefor.
    That the parties interested in ■ the claim set forth in the petition in this case are : the petitioner, for his reasonable compensation as trustee ; the said Platt & Stewart, for their commissions as agents, and as indemnity against their acceptances given for advances made to the said Heslep & Peek, or one of them, on the faith of the fund, and as attorneys for the said Augustus M. Heslep and Treat F. Peek, the said Peck being one of the original parties in said decree, and William S. Heslep, the other party, having sold and conveyed for a valuable consideration his half interest in said decree, by instrument of writing dated April 15, A. D. 1853. That the several parties aforesaid became interested, as aforesaid, at the dates of their respective interests aforesaid, except the said Platt & Stewart, whose interest and connection aforesaid first occurred on the 16th day of April, 1853, on which day they were originally employed, and for the considerations aforesaid mentioned.
    That the petitioner is the legal owner of said decree as trustee, subject to account to his cestui que trust, as hereinbefore stated; that the several prior owners and persons through whom he holds by assignment are citizens of the United States ; that the petitioner has, and, as he is informed and verily believes, each and every prior owner and assignor thereof has at all times borne true allegiance to the government of the United States ; and that the petitioner has not, nor have * they or- either of them, the said prior owners and assignors, in ány way voluntarily aided, abetted, or given encouragement to rebellion against the said government.
    That this case was brought into the honorable the Court of Claims by the original petition, filed in the name of the petitioner the 29 th day of June, 1855, in addition to which original petition, a supplementary and amended petition was further 'filed by the petitioner in this court on the first day of February, A. D. 1865.
    The claim in this case is founded' entirely on a decree in the cause of the United States, complainants, against Kobert A. Parker, James McCormick, William S. Heslep, and Treat F. Peck, defendant's, for #10,360 and interest thereon as aforesaid, in favor of William S. Hes-lep and Treat F. Peck.
    The amount claimed by the petitioner in this case, and for which he asks the judgment of this court, is the said sum of #10,360 and interest thereon, as aforesaid, from May 1, 1851, until such time as the same shall be paid by the United States.
    The evidence consists therefore of the duly certified record of the proceedings in the said cause of the United States, complainants, against the said Robert A. Parker, James McCormick, William S. Heslep, and Treat F. Peck, defendants.
    So far as the facts of the case are concerned, there is, it is respectfully submitted, but one essential fact in the case, and about that there can be no controversy, that is, that there was such a suit, as stated in the petition, in which the United States were complainants, and the said Bobert A. Parker, James McCormick, William S. Heslep, and Treat F. Peck were defendants, and that such proceedings were had and such final decree rendered and not appealed from, as is hereinbe-fore set forth; all of which being matter of record will appear from the transcript of the records oí said district court of the United States for California, which the petitioner is prepared to submit for the inspection of this court.
    1. The suit of the United States v. Parker et al. was rightfully instituted.
    The hill was filed in the name of the United States, by its proper legal officer in California, the district attorney thereof, and the presumption of law in the' absence of any evidence to the contrary is that the authority of this officer was executed properly in obedience to rightful instructions and in good faith. It is a familiar principle of law that suits may be brought by the United States without any act of Congress specially authorizing the same. United States v. Barber, 1 Paine, 157; Dixon v." The United States, 1 Brock, 177; Dugan v. The United States, 3 Wheat. 181; Conckling on United States Courts, 137; Sergeanton on United States Courts, 107.
    Mr. Justice Livingston, in delivering the opinion of the court in Dugan v. The United States, (3 Wheat., 181,) says : “An intimation was thrown out that the United States had no right to sue in any case without an act of Congress for that purpose. On this point the court entertains no doubt. In all cases of contract with the United States they must have a right to enforce the performance of such contract, or to recover damages for their violation, by actions in their own name, unless ’a different mode of suit be prescribed by law, which is not pretended to be the case here. It would be strange to deny to them a right which is secured to every citizen of the United States.”
    In the case of Doftin Cotton, plaintiff’ in error, v. The United States, (11 Howard, 229,) the only question in the case was whether the United States could sue a trespasser for cutting down trees on the public land. The court decided they could. The court say: “Although as a sovereign the United States may not be sued, yet as a corporation or body politic they may bring suit to enforce their contracts and protect their property in the State courts, or in their own tribunals administering the same laws.”
    In the case of the United States v. Hughes et al., (11 Howard, 
      552,) the court held that the United States might file a bill in equity to set aside a fraudulent patent of land. .
    The right to sue is a privilege which belongs to the United States. To deny this privilege would be to deprive the government of a faculty which under some circumstances might be of the greatest advantage to it. It may, for instance, be often of great importance to the government to have the right to file a bill in equity for discovery, where there would be a failure of justice without the answer of a party debtor to the government.
    The Congress of the United States have recognized this right of the government to sue in the courts of the United States, for they have expressly provided that where the United States are “ plaintiffs or petitioners,” the circuit courts of the United States shall have jurisdiction. (Act of 1789, 1 Stat. L., p. 78.)
    Congress has also made it the duty of the Solicitor of the Treasury to superintend all suits in law or equity in the name of the United States. (4 Stat. L., p. 883.)
    It may therefore be assumed, as a matter of law beyond all dispute, that the United States, independent of any special directory statute on the Subject, by virtue of their general faculty as a political or corporate body, may institute suits in the courts of the United States.
    We introduce these authorities merely to guard against the possibility of such a question being raised here, as the cases cited show has been raised on some occasions. It would seem, however, that the United States, being not only a political person, but the highest of such political persons, must of course have a right to execute the ordinary functions of bringing a suit, unchallenged precedents of which fact exist by thousands in books, printed reports, and the records of the various courts of the United States.
    It is the undoubted right in all countries whatsoever of every government to bring suit by its political title, whatever that may be, not only within the limits of its own territorial sovereignty,' but in those of other friendly powers. To do this is by the universal public law one of the inherent rights of national sovereignty.
    For example of such in the United States see the following cases:
    
      The King of Spain v. Oliver, 2 Wash. C. C. R.., 425 ; The King of Spain v. Oliver, 1 Peters 0. C; R., 217.
    
      “ The judicial power shall extend to controversies between a State, or the citizens thereof, and foreign States.” (Con. U. S., Article III, Sec. 2.)
    
      This provision necessarily recognizes the faculty of foreign States to sue in the courts of the United States.
    In example of such cases in Great Britain, see the following cases :
    
      United States v. Pridleau, Jurist, N. S.; Emperor of'Austria v. Kossuth, 3 De Gex., Fisher and Jones, 217 ; The King of the Two Sicilies v. Wilcox, 1 Simmons, new series, p. 301; The Queen, of Portugal v. Glynn, 7 Clark and Finelly, 467 ; Duke of Brunswick v. Duke of Hanover, 6 Beavan, 1.
    In Hullett v. The King of Spain, 1 Dow and Clark, p. 175, Lord Ridesdale says : “I have no doubt hut that a foreign sovereign may sue in this country, otherwise there would be a right without a remedy.”
    “ A foreign sovereign may sue in this country, both at law and in equity; and if he sues in equity, he submits himself to the jurisdiction, and a cross bill may be filed against him.” — The Duke of Brunswick v. The King of Hanover, 6 Beavan, 1.
    The United States having the right to institute suits, we arrive at the conclusion that the suit in California was rightfully instituted in the district court of that State.
    2. The suit being thus rightfully instituted, the only remaining question on this point is whether the court had jurisdiction of the case.
    This question will depend upon the parties to the suit and the subject-matter of the suits.
    As to the parties, the only possible controversy in this particular would be as to the United States, complainants. The act of 1789, already cited, is conclusive on this point, for it gives the circuit court of the United States express jurisdiction “in all cases” where the United States are “ plaintiffs or petitioners.”
    By the act of September 28, 1850, the jurisdiction of the .circuit courts of the United States is conferred on the district courts of California.- (9 Stat. L., p. 523.)
    The district court of California was therefore vested with jurisdiction over all cases where the United States were the plaintiffs or complainants.
    The subject of the suit was one of familiar practice in the circuit courts of the United States, being an ordinary bill for discovery and relief on matters of account.
    It is submitted, then, that the district court of California had full, perfect, and complete jurisdiction in this case.
    3. Having thus jurisdiction of the case the circuit court made a decree in part against the United States, ordering $10,360 rent to be paid to the beneficiary claimants in this suit. It is not questioned that the part of the decree in favor of the United States setting aside the award for $25,766 51 is valid. Then it may well be asked, why is not the decree in favor of the claimants valid 1
    
    It is submitted that the United States by voluntarily seeking the aid of the court, as complainant, necessarily invoked the judgment of the court according to the ordinary principles of equity jurisprudence applicable to the case made. This, of course, implied that the court was to do full and complete justice between the parties. Upon this point we would refer to the argument of Mr. Taney in the case of Van Ness v. The City of Washington and the United States, (4 Peters, 232.) Mr. Taney said :
    “In submitting to such trial and decision they (the United States) place themselves on the ground of contract and waive any right of sovereignty, for it would be absurd to suppose that the United States gave to the court the mere power of hearing a cause, when that hearing would produce no practical result.”
    It is perhaps worthy of note that “ in all bills in equity for an account both parties are deemed actors when the case is before the court on its merits. * * * In bills for an account, if a balance is ultimately found in favor of the defendant, he is entitled to a decree for such balance against the plaintiff.” — Story’s Equity, 522.
    In the case of The United States v. Arredendo, (6 Peters, 711,) the Supreme Court says:
    “ The United States consenting to be sued, we are bound to decide as between man and man.”
    But there is no difference in principle aB to the United States consenting to be sued and voluntarily instituting a suit. In one ease they are defendants, in the other they are complainants. In either case they make themselves alike amenable to the judgment of the court, and authorize the court to decide as between “ man and man.”
    So in the case of The United States v. Bank of the Metropolis (15 Peters, 377, 392) the court held that individuals when sued by the United States may avail themselves of credits.
    The same point determined in other cases. As in—
    
      The United States v. Wilkins, 6 Wheat., 135; United States v. Robeson, 9 Peters, 319 ; United States v. Jarvis, Daveis, 274; United States v. Mann, 2 Brock, 9 ; United States v. Duval, Gfilp., 357.
    As a further authority to show that judgments and decrees may be rendered against the United States, it may be proper to refer to the act of Congress, (3 Stat. L., p. 592, eh. 107, sec. 8,) which requires the clerks of district and circuit courts at the close of each term to return to the proper officer a statement of all judgments and decrees rendered during the term to which the United States are parties, showing the amounts decreed for or against the United States.
    This act of Congress would appear to recognize as familiar practice the legality of judgments and decrees against the United States.
    4. Assuming, then, that it was competent for the court to pronounce the decree it did in favor of these claimants, the next question is the effect of that decree.
    We insist that that decree is conclusive upon the United States.
    In the case of The United States v. Nourse, (9 Peters, 28,) the Supreme Court says :
    “ It is a rule to which no exception is recollected that the judgment of a court of competent jurisdiction, while unreversed, conpludes the subject-matter as between the same parties; they cannot again bring it into litigation.”
    The facts of Nourse’s case were as follows : There were two cases of the United States against Nourse; the’ first case was commenced by a distress warrant by the United States, which, under the act of 1820, authorized Nourse to file a bill in equity against the United States, (6 Peters, 470.) In this case the decree was'-that the United States owed Nourse a sum of money. Afterwards the United States sued Nourse, on the same subject-matter, and the Supreme Court held, as already stated, that the matter was conclusively settled against, the United States in the first suit.
    The only difference between the case of Nourse and these claimants is that Nourse was authorized by the act of 1820, after the issuing of the distress warrant against his property by the United States, to file a bill in equity against the United States, and in this case the United States were the complainants. The court had equally jurisdiction in both cases, and their decree should, it is submitted, be equally conclusive in both cases.
    See further, as to the conclusive effect of judgments and decrees between the parties—
    
      Hopkins v. Lee, 6 Wheat., 109 ; Bank of the United States v. Beverly, 1 Howard, 134; Huffy. Hutchinson, 14 Howard, 586; Story’s Equity, sec. 1523 ; Story’s Equity, sec. 547; Moses v. McFerlan, 2 Burrows, p. 1009; Ram on Legal Judgments, pp. 2, 3.
    We submit, therefore, that the decree in the case of the United States against tbe claimants is conclusive upon the United States as a party to the record.
    The United States had under the act of 1803 .an appeal to the Supreme Court.
    Having failed to prosecute their appeal, the said decree stands now irreversible.
    5. The only difference between a decree against the United States and any individual, is that no execution issues against the United States. But this does not affect the authority of the decree as a judicial determination of the subject-matter of the suit.
    The Supreme Court'held in Mills v. Duryee, 7 Cranch, 485, that a judgment may be perfect independent of the right to issue execution.
    6. As to the question whether the record in the case of the United States v. R. A. Parker, J. McCormick, W. S. Heslep, and T. F. Peck, is admissible as evidence in this .case, it is sufficient to say that a party has' a right to prove any fact material, or which he deems material to his case. What the claimant in this case relies upon is that there was a cause in equity in the district court of California, to which the United States and the beneficiary.claimants in this case were parties, in which suit a decree was rendered against the United States in favor of these claimants. This cannot be proved by parol. It can only be proved by producing a certified copy of the record. That is the only evidence on this point.
    “ A debt of record, if disputed, must be tried by inspection of the record, if the controversy be in the court where the record exists, and by a certified copy of the record, if in another tribunal, and not by a jury of the country.” — Tidd’s Practice, 6th edition, pp. 481-487; Mills v. Duryee, 7 Cranch, pp. 481-487.
    7. As to the question of interest, it is submitted that that question does not properly arise in this case, as the decree authorizing interest was in the exercise of the power of the court to do completé justice between the parties, and is to be considered in the light of compensation instead of interest, technically speaking; as in the case of Pratt v. Law, (9 Cranch, 456,) where a contract for the sale of lands had been in part executed by a conveyance of a part of the lands, but the vendor was unable to convey the residue, the court decreed the repayment to the vendee of a proportionate part of the purchase money, with interest. Considered in this light, and as a substantive part of the decree, it is res adjudícala. The question of interest, then, it is submitted, as such, does not properly arise in this case.
    If nothing had been said about interest in the decree, and the claimants were seeking to obtain interest, tbe question would be properly before tbe court.
    Congress, by tbe act of August 23, 1842, establishing the general rule that all judgments of the United States courts should bear interest, where judgments bear interest according to the laws of the State where judgment rendered, recognizes the propriety of judgments hearing interest; and their not embracing decrees of the court of equity in the law, must have arisen from the judges in equity having an inherent jurisdiction to regulate interest in each case.
    9. In conclusion, it is respectfully submitted that the case of Reeside v. The United States, decided by this court, is conclusive, both by its reasoning and authority in this case. The only difference between the cases is; that was a judgment at law; this a decree in equity. Both were suits instituted by the United States. In principle there can be no difference between a decree in equity and a judgment at law. In that case the court said :
    “We can see no difference between the effect of a judgment between private persons, of this character, and a judgment in a ease where the United States are plaintiffs, except that the judgment cannot be ' enforced by execution against the United States. • Itis still a judgment upon the matters in issue, and its payment is left, not to the service of process, but to the faith of the United States.”
    The SOLICITOR for the defendants:
    This is an action brought by James Adams, trustee, on the 29th of April, 1855, upon a decree in a suit in equity in the United States district court of California, rendered on the 12th day of March, 1853, for $10,360, with interest from the 1st day of May, 1851, in which the United States were plaintiffs, and Bobert A. Parker, James McCormick, William S. Heslep, and Treat F. Peck were defendants.
    There is no other evidence in the case ‘but the record of the suit in 'equity, consisting of the petition of the United States, with exhibits, the joint answer of Heslep & Peck, the replication, the report of the master, and the decree of the court.
    The bill is signed by the district attorney, but it is sworn to by another attorney, who denominates himself in the jurat as a special attorney for the United States, and signs the bill as of counsel. There is no other authority shown for the commencement-of the proceedings.
    
      The defendants Heslep and Peek alone answer the bill, the master stating in his report that Parker and McCormick were mere nominal parties.
    The first question that arises in this case is as to the right of the petitioner to bring this action.
    He sues as trustee; there is no written evidence of the trust, and according to his own statement in the petition he is not certain as to all the persons who are cestuis que trust, or the amount of their interests.
    There must be proof of the trust. (Hill on Trustees, p. 59.) There is no evidence whatever of the trust.
    The petitioner claims under an assignment in trust, although the proof of it does not appear in the record, nor is there any evidence of its nature. But whatever it may be, whether an express trust or an assignment conveying upon its face the entire interest, with latent trusts resting in parol, it is in direct contravention of the statute of February 26, 1853. Section 1st of that statute provides that ‘.‘all transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders of other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertaihment of the amount due, and the issuing of a warrant for the payment thereof.”
    The case of Cooper v. The United States, 1 Court of Claims Reports, p. 87, is conclusive as to the construction of this statute. Chief Justice Casey says: “This section, as we decided in the case of Sines v. The United States, at the present term, makes the attempted transfer ‘ absolutely null and void.’ It is useless to refine upon this provision, or attempt to fritter away the plain and explicit words used by Congress when they say: ‘All transfers and assignments of any claim upon the United States.’ We can only judge of what they intended by what they have said. And when they say that all assignments of any claim upon the United States ‘ shall be absolutely null and void’ unless made after the allowance and liquidation of the claim, we must suppose they knew what they were doing, and meant what they said.”
    It is alleged in the petition, that on the 12th of March, 1853, the decree was'Obtained in favor of William S. Heslep and Treat F. Peck; that on the 8th of April, 1853, they executed their power of attorney ■ and thereby constituted Augustus M. Heslep their attorney with power of substitution, to receive the amount of the decree, or sell the same; that on the 27th da7 of September, 1853, the said Augustus M. Heslep constituted Messrs. Platt and Stewart attorneys in his place; that on the 20th day of March, 1854, the said Platt and Stewart conveyed to the petitioner; and that William S. Heslep sold and conveyed, as is alleged in the petition, “though of what amount or nature is unknown to petitioner, his half interest in said decree, by instrument dated the 15th day of April, 1853.”
    The assignment by William S. Heslep, April 15, 1853, of his half interest, was unconditional and not in the nature of a trust. This assignment is as much within the prohibition of the statute as would have been a joint assignment, by Heslep and Peck of their entire interest. The act does not contemplate an apportionment of a claim, by which it is to remain valid although there may remain in the original owner only an insignificant residuum of the interest.
    The defendants contend that the record discloses that this is not such a decree as should be enforced against the United States. The cases of Ree-side and Tillou, decided in this court, cannot be regarded as precedents in this case.
    This court has the right and it is its duty to examine every judgment and decree upon which an action is founded, to ascertain whether it is such a judgment or decree as it will enforce by its own judgment. The peculiar character of the United States as a party in a judicial proceeding must be constantly kept in view; not only its sovereignty, but its corporate character. And in applying the rules of law as to the force and effect of judgments, the distinction must be observed between the cases where the United States is a party and those in which individuals are parties, whether those individuals are citizens or subjects, or whether they are monarchs who sue as sovereigns but yet are capable of protecting themselves as individuals.
    Speaking of judgments of State courts, Judge Story says: “By the Constitution of the United States it is declared that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State; and Congress, in pursuance of the power given them by the Constitution in a succeeding clause, have declared that the judgments of State courts shall have the same faith and credit in other States as they have in the State where they are rendered. [And the same rule applies to judgments of the circuit courts of the United States when relied upon in a State court.] They are therefore put upon the same footing as domestic judgments. But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered to pronounce the judgment, nor an inquiry into the right of the State to exercise authority over the parties or the subject-matter, nor an inquiry whether the judgment is founded on and impeachable for a manifest fraud.” — Story on Conflict of Laws, sec. 608.
    As to the right to sue the United States, or to introduce a set-off against the government when it is a party, the law is clearly stated in the case of Reeside v. Walker, 11 Howard, 290. Judge Woodbury, in delivering the opinion in that case, says:
    “It is well settled', too, that no action of any kind can be sustained against the government itself for any supposed debt, unless by its own consent under some special statute allowing it, which is not pretended to exist here. — Briscoe v. Kentucky Bank, 11 Peters, 321; 4 Howard, 288; 9 Howard, 389.
    The sovereignty of the government not only protects it against suits directly, but against judgments even for costs when it fails in prosecutions. — 4 Howard, 288.
    “ Such being the settled principle in our system of jurisprudence, it would be derogatory to the courts to allow the principle to be evaded or circumvented. To permit a demand in set-off against the government to be proceeded on to judgment against it, would be equivalent to the permission of a suit to be prosecuted against it. And, however this may be tolerated between individuals, by a species of reconvention, where demands in set-off are sought to be recovered, it could not be as against the government except by a mere evasion, and must be as useless in the end as it would be derogatory to judicial fairness.”
    The third and fourth sections of the act of March 3, 1797, provide that persons sued as debtors at the treasury might be entitled, in certain cases, to set-off claims for credits. But thej' require the defendant to make oath that he is equitably entitled to credits which had been previously presented to and rejected by the accounting officer. The allowance of any claims for credits, except such as shall have been so presented and rejected, is forbidden, unless the defendant shall be in possession, at the time of trial, of vouchers not before in his power to procure, and unless it shall appear that he was prevented from exhib-« iting a claim for such credit at the treasury by absence from the United States or some unavoidable accident.
    In the case of The United States v. Robeson, a case under the act of March 3, 1797, Judge McLean says: “The first question which arises on these exceptions is, whether a claim which has been transferred to the defendant forms a proper subject of set-off under the acts of Congress to a demand of the government. If tliis question shall be decided in the negative, it will not be necessary to inquire whether the claim in itself constitutes a proper item of set-off. It seems to have been presented to the proper accounting officer of the government as a credit, and that he refused to allow it. This is a question which arises exclusively under the acts of Congress, and no local law or usage can have any influence upon it. The rule as to set-off in such eases must be uniform in the different States; for it constitutes the law'of the courts of the United States in a matter which relates to the federal government.
    “Where a defendant has in his own right an equitable claim against the government for services rendered or otherwise, and has presented it to the proper accounting officer of the government, who has refused to allow it, he may set up the claim as a credit on a suit brought against him for any balance of money claimed to be due by the government.
    
      “ There is no law of Congress which authorizes the assignment of claims on the United States; and it is presumed that if such assignment is sanctioned by the Treasury Department, it is only viewed as an authority to receive the money, and not as vesting in the assignee a legal right. But, whatever may be the usage of the Treasury Department on this subject, it is clear that such an assignment as between individuals, on common law principles, caunot be regarded as transferring to the assignee a right to bring an action at law, on the account, in his own name, or to plead it, by way of set-off, to an action brought against him either by an individual or the government.
    “The claim set up by the defendant as a set-off in this case may have been fairly obtained; and, indeed, such is the presumption, in the absence of all evidence going to impeach the assignment, or the consideration on which it was made; but the assignee not holding the legal right cannot assert the claim as a set-off in this action.
    “ If any individual who holds in his hands public money could defend himself against an action brought by the government by purchasing claims against it, he might speculate on such claims to almost any extent. This practice would be as impolitic for the government as it would be injurious to individuals.’’
    It is claimed in this action that the bill in equity, through which the decree upon which it is founded was obtained, was a bill for an account, and that the defendants in that proceeding availed themselves of the rules of practice, in cases of that character, in courts of equity, and obtained a decree against the United States.
    
      “Iu all bills in equity for an account, both parties are deemed actors when the case is before the court on its merits. In bills for an account,' if a balance is ultimately found in favor of the defendant, he is entitled to a decree for such balance against the plaintiff.” — Story’s Equity, p. 522.
    To maintain the jurisdiction of a court of equity in a matter of accounts, there must be “mutual accounts, where items exist on both sides, not constituting matters of set-off, but forming a connected transaction, and requiring an account to ascertain the balance more complicated than can be practically taken at law.” — Adams’s Equity, p. 478. “To sustain a bill for an account there must be mutual demands, not merely payments by way of set-off; there must be a series of transactions on one side, and payments on the other.” “Complication of accounts, when the receipts are all on one side, if it ever alone consti-stutes sufficient grounds for the intervention of a court of equity, must show a very strong case of entanglement.” — Adams’s Equity, p. 479, note, and cases there cited.
    The distinguished counsel for the claimant contends that the United States having filed a bill in equity, they were subject to all the incidents of that proceeding where individuals are parties; that the defendants had a right to have their answer regarded as a cross bill and to obtain a decree against the United States.
    The American cases cited are not at all analogous to the one in question. In not one of them was a bill in equity brought by the United States converted into a medium of obtaining a decree against the government. The language of Mr. Taney, arguendo, in the case of Van Ness v. The City of Washington and the United States, (4 Peters, p. 232,) can have no application to a case like this. The bill in that case was filed by permission of Congress, and was intended to test the right of the complainants to certain lands. The question raised by the defendants was whether there was anything upon which the bill could act, and whether the appropriation of the lands was not an act of sovereignty with which the court could not interfere. It was with reference to such a ease that he said: “ In submitting to such trial and decision, they, the United States, place themselves on the ground of contract and waive any right of sovereignty, for it would be absurd to suppose that the United States gave to the court the mere power of hearing a cause, when that hearing would produce no practical result.”
    The language of the court in the case of The United States v. Arredendo, (6 Peters, 711,) is also cited. In that case the court says: “The United States consenting to be sited, we are bound to decide as between man and man.” But the case of Arredendo was under a statute permitting an action to be brought against the United States, and distinctly defining the issue to be determined, viz: “Whether the claimants or the United States were the owners of the land in question.”
    In the case of The United States v. The Bank of the Metropolis, (15 Peters, p. 317,) the government had accepted the draft that was the subject-matter of credit.
    The other American cases cited upon this point were cases where the credits were allowed under the act of March 3, 1797. It will be observed that in all the cases the court requires an observance of the fourth section of that act. The claims must have been presented to the treasury and disallowed.
    
    All the English cases cited assume that when a foreign sovereign is before the English courts, they are dealing with an individual, and not the nation over which he rules.
    “ The right to institute a suit’ in our courts against a foreign sóve- . reign has never been questioned. There is no more privilege for a foreign sovereign than for his subjects.” — Queen of Portugal v. Glynn, 9 Clarke and Donnelly, p. 479.
    “A cross bill may be filed against him, and he must put in liis answer thereto, not by an officer, agent, or substitute, but formally upon his own oath.” — The Duke of Brunswick v. The King of Hanover, 6 Beavan, p. 37.
    “The King of Spain is not in a state of imbecility, nor under the incapacity of infancy or coverture. He is not a corporation aggregate.” — The King of Spain v. Hulett, 7 Bligh, p. 392.
    ‘‘The King of Spain sues here by his title of sovereign, and so he must be sued if sued at all. But beyond the mere name of sovereign it has no effect. He brings with him no privileges which exempt him. from the common fare of other suitors.” — P. 393.
    “If he appears as plaintiff you can do complete justice; you can impose any terms you think proper upon him; you have him in your power; you may file a cross bill, and then you have him completely under your control and jurisdiction.” — 2 Bligh, N. S., p. 57.
    The distinction between the English cases cited and the suit in equity in question is, that in those cases the plaintiffs were foreign sovereigns, capable of protecting their rights as individuals, and liable as individuals to the rules of the courts in which they had commenced litigation.. But the rules of practice of courts of equity cannot justify a decree against the United States, which exist only by the force of written and organic law, wbicb has no sovereign, whose rulers have no powers but those which are perscribed, and against which no suits can be brought except in the mode directed by the national legislature. To admit that a nation which cannot be sued in its own courts, except by express statute, can be mulcted in damages, because one of its officials has unadvisedly selected the wrong remedy in an attempt to procure the property of that nation, is to give to the rules of legal procedure a power and efficiency never yet recognized in any reported legal decision.
    The court will notice, on examining the record, that the bill in equity filed against Parker, McCormick, Heslep, and Peck, was signed by the district attorney, but was sworn to by one who designates himself as special counsel. It was manifestly signed by the district attorney fro forma, and without any knowledge of the facts upon which the bill was based.
    It is submitted that, without reference to other fatal objections to the decree, this court will not enter a judgment upon a decree founded upon proceedings so flagrantly in violation of the well-understood principles of our jurisprudence.
    What was there in the state of facts that gave a court of equity the right to render a decree against the United States % What foundation fora bill for an account? No account could have been asked from Parker or his assignee, McCormick. The agreement annexed as an exhibit to the bill shows that the United States had no claim for rent or money from Parker, and he would have been only liable in damages if he had violated his contract to furnish lumber.
    There was no possible ground for a bill in chancery against Heslep and Peck. They were purchasers from Yan Ostrand and Standisk. They were not assignees of the contract. If they were in possession wrongfully, there was a familiar common law .proceeding to recover possession. Under no circumstances could they be considered liable to an accounting. There was no such liability from Parker or his assignee. They were, as has already been stated, merely to furnish lumber to the navy, and there could be under the contract no mutuality of accounts. But the contract had been annulled. If any one was in possession of the machinery and utensils of the government, he was in unlawful possession. The building in which the machinery of the mill was located was not the property of the United States and had never been claimed to be. They were the owners of the machinery and utensils alone. If they had never been separated from the building, the charge of $12,360 for storage was a manifest fraud. That they were never separated is apparent from the answer of Heslep & Peck, and from the report of the master.
    There was no privity between Heslep &Peck and the United States. They so allege in their answer, and it must have been known to any one familiar with the transaction. And yet the master in his report says that they were the real parties defendant, and that Parker and » McCormick were only nominal parties, although McCormick held an award against the United States for $25,000, which the master was kind enough to annul. Nominal parties for what purpose ? Heslep & Peck, the only parties who answer the bill, very properly refuse to account, because there was nothing for which they. could account. They were the purchasers of the mill and the lots upon which the mill stood, and all the machinery connected with the mill. If any portion of the machinery belonged to the United States, they claimed to have a lien upon it by virtue of holding a claim against the United States, assigned first by McCormick to Van Ostrand & Standish, and by Van Ostrand & Standish to them, and as they were made parties to the bill, they asked to have their answer regarded as a cross hill against the United States, which was allowed. Whereupon they obtained a decree for $10,360, being the amount of the bill or account assigned to them as a claim against the United States for the storage by McCor-mich of the machinery and utensils of the mill, less $2,000, the estimated value of the property which it was pretended had been'stored, but which had never been detached from the building, and which was in continued use by McCormick, Ostrand Standish, and Heslep Sf Neck.
    
    The subject-matter upon which the decree was obtained did not warrant the decree. It was rendered upon an assigned claim. Under the decision of Robeson v. The United States, such a claim could not * he set off against a claim of the United States.
    There is no evidence that the claim, either when in the hands of its original owner, McCormick, or afterwards when assigned and in the hands of Ostrand & Standish, and Heslep & Peck, was ever presented at any of the departments. The presentation for payment at the ^Treasury Department of the claim which was allowed as a set-off against the United States is regarded in every case cited as a fact essential to the validity of the judgment, and which should appear in the record.
    The decree includes interest, and this court is prohibited from including interest in a judgment against the United States.
    It is contended by the counsel for the claimant that interest in this case is to be regarded as compensation, and not interest technically understood. A case is cited to establish the familiar principle that where a party has covenanted to convey, and cannot specifically and entirely perform, a money decree with interest may be rendered by way of compensation. But here was a liquidated money claim for a sum certain, upon which, with interest, a decree was rendered.
    The distinction that is insisted upon between a judgment at law fin-interest and a decree in equity for the same thing, is more subtle than just. When we look into the record in this case to find an equity that will give color to such a distinction, we find instead of an equity a bald claim, which, by a gross perversion of legal proceedings, was used not only to deprive the United States of its property, but to secure a money decree against it, which is to be regarded as so solemn and binding upon the government as to preclude all inquiry as to the subject-matter upon which it is founded and the elements of which it is composed.
    
      
      [* This case was' decided by the Court of Claims under its former organization, and is not reported. — Reporters.]
    
   Casey, C. J.,

delivered the opinion of the court:

The facts of the case are as follows :

In the year 1848, on the acquisition of the Territory of California by the United States, Commodore Thomas Ap 0. Jones was in command of the United States naval force in the Pacific ocean, duly commissioned as commander thereof, and representing the United States in that region. The Secretary of the Navy, on the 14th April, in the same year, 1848, sent to him, as chief commander, a steam saw mill and other machinery, designed to be erected on shore, for the use of the navy. The commodore, on the 7th April, 1849, made a written contract with one Robert A. Parker for the erection of the mill, and running • the same, and delivered the same to him, and which was erected and run until the 28th January, 1850, when Commodore Jones rescinded the contract and resumed possession of the mill, because of the disapproval of the Secretary of the Navy, and his order to that effect; and the commodore then contracted for the storage and safe-keeping of the same, together with other property of thejUnited States, with Messrs. Ostrand & Standish, at Sancilito, in the State of California, at $1,200 a month.

Robert A. Parker had previously assigned his contract and interest therein to one James McCormick; and the latter claiming damages, referees were on the 22d June, 1850, named by each party, to determine the same; to wit: Purser John N. Hamilton, by the United States, and Talbot H. Green, by McCormick. On the 9th day of July thereafter, the referees made an award under their hands, certifying $25,766 51 to be due in the premises by the United States to McCormick, and awarded the payment thereof.

In 1851, and again in 1852, the Secretary of the Navy directed the navy agent and district attorney of the United States for the district of California to proceed for recovery of said property, and to assert the rights and protect the interests of the United States ; and accordingly a bill was filed in the United States district court in California, in 1852, by the United States as complainants, against Robert A. Parker, James McCormick, William S. Heslep, and Treat F. Peck, defendants, seeking an account of the matters aforesaid, and praying restitution of said mill.

William S. Heslep and Treat F. Peck had purchased of Ostrand & Standish the storage contract, and were then its owners, and had also purchased the real estate whereon Parker had erected the mill.

In this suit the regular and usual proceedings were had; reference was made to a master to take testimony and report facts, and the same was accordingly duly done; and on the 12th day of March, 1853, a final decree was pronounced by the court, whereby the award in favor of Parker was declared null and void, and was cancelled, and there was found due to Heslep and Peck for storage $10,360, and the payment thereof with interest at six per cent, per annum from the 1st day of May, 1851, was decreed to be made by the United States to Heslep' and Peck.

It was alleged in the petition that Heslep and Peck, on the 8th day of April, 1853, made and constituted Augustus M. Peck, by a written instrument, their attorney in fact, to receive, transfer, sell, or collect the amount of said decree, with power of substitution; and that in virtue- of such power of substitution, he, on the 27th of September, 1853, appointed Platt and Stewart, of thecity of Washington, attorneys for the purposes aforesaid. It is then further averred that on the 20th day of March, 1854, Platt and Stewart, by virtue of the power of attorney recited, conveyed all the legal right, title, and claim to such decree to James Adams, the plaintiff in this record.

It is further averred that J ames Adams held under such assignment as a mere trustee, for the use of the real and beneficial owners of the claimant.

These powers of attorney and assignments alleged have not been given in evidence, and the claimant, James Adams, has therefore shown no right or title in this claim, nor any authority to maintain this action. We might rest the case here. Without such showing he would have no color of right. But believing that such letters of attorney are in existence, and that the failure to produce them is an oversight, we would not for that cause alone dismiss the petition, without giving the party an opportunity of supplying that omission. But as we view the case, full proof of these would not improve the claimant’s chances of a recovery.

In the first place the decree is rendered after the passage of the act of Congress of the 26th of February, 1853. Section 1st of that statute provides that “ all transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders or other authorities for receiving payment of any such claim, or any part or share thereof, Bhall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.”

The case of Cooper v. The United States, 1 C. Cls. R., p. 87, is conclusive as to the construction we have given to this statute. The court say: “This section, as we decided in the case of Sines v. The United States, at the present term, makes the attempted transfer ‘absolutely null and void.’ It is useless to refine upon this provision, or attempt to fritter away the plain and explicit words used by Congress when they say: ‘All transfers and assignments of any claim upon the United States.’ We can only judge of what they intended by what they have said. And when they say that all assignments of any claim upon the United States ‘ shall he absolutely null and void’ unless made after the allowance and liquidation of the claim, we must suppose they knew what they were doing, and meant what they said.”

The same.doctrine is held in the case of Pierce v. The United States, 1 C. Cls. R., p. 270; and at the present term, in the case of Martin et al. v. The United States, 3 C. Cls. R., p. 64. Until these rulings shall have been reversed by the Supreme Court of the United States, we must consider the doctrine settled in this court, and that had the claimant even produced full proof of all the letters of attorney, and all the assignments in the case, they would have been unavailing to enable him to recover in his own name.

But a still more formidable obstacle presents itself in the way of the claimant’s recovery. The suit is founded on the decree of the district court of the United States for the northern district of California, finding due to Heslep and Peck, two of the defendants in that case, the. sum of $10,360 and decreeing that the same sum is due and payable to them, from the United States, with six per cent, interest from and after the first day of May, 1857. Under these facts it cannot be distinguished from the case of Tillou, ex’r of Eckford, v. The United States, reported in 1 C. Cls. R., p. 220. A similar judgment of a circuit court of the United States rendered in favor of a defendant, upon a suit brought by the United States, and set-off pleaded under the act of 1797, was given in evidence, in that case, under objection. We held that the court had jurisdiction of the set-off. That being an indivisible claim, the finding in favor of the defendant, and the judgment entered upon it remaining unreversed, was conclusive of the indebtedness of the United States to the party. But on appeal to the Supreme Court of the United States the judgment was reversed. And it is there held that “ the extent of the authority conferred by the act of 1797 is that the defendant, when sued by the United States, may exhibit his claims for credit if they come within the prescribed conditions, but they can only be admitted as claims for credit, and not as demands for judgment.” It was further held that the State laws in such case do not constitute the rule of decision, but that the question arises exclusively under the act of Congress, and no local law or usage can have any influence in its determination. It is there held that “ the defendant may prove his set-off or counter-claim, to an amount sufficient to discharge the whole claim of the plaintiffs, in which event he will be entitled to judgment that he go thereof without day, hut the circuit court “possesses no jurisdiction to render judgment for any excess of set-off over the plaintiff’s claim.”

That case is directly in point here. This claim is exclusively founded upon the judgment or decree of the district court of California against the United States, in the proceedings set forth. Under the ruling cited in the Tillou case, this was beyond the jurisdiction of the court, and to that extent void. For the principles and authorities upon which the doctrine rests we refer to the very able opinion of Mr. Justice Clifford in that case.

The judgment of the court is that the petition in this case be dismissed, and that the defendants go thereof without day.

Loring, J„

dissenting:

This ease was heard seven or eight years since upon the understanding that the assignments or powers of attorney, set forth in the petition, and on which the petitioner makes title, should be immediately filed. This was not done then, and has not been done since; and I think the case is not in a condition to be heard or considered, and that it should be dismissed for the petitioner’s in default in preparing it. But as it is held for judgment I am obliged to dissent from the opinion of the majority of the court.

The record shows that a bill in equity to account was brought by' the United States against Heslep Peck and others, in the District Court of the United States for the northern district of California, and that a decree was made certifying that the United States were indebted to Heslep and Peck in the sum of $10,360. And the petitioner, as assignee of Heslep and Peck, claims that sum, and offers the decree in evidence, and the question is whether it is admissible.

I think it is, and my opinion is founded on the peculiar nature of the suit in which the decree was rendered, viz : a bill in equity to account brought by the United States ; and I think that this case is by that distinguished from any other that has been brought here, or cited in its argument or decision; and that this decree is no more subject to the objection made that the United States, as sovereigns, are not subject to judgment than would be an account stated by one of their officers appointed by them for the purpose, if he had certified the balance found in the same words. An account stated is the mutual action of both parties to it; and that, I think, makes the rule of law and reason for this case. Where parties have established a mutual relation, they have made its burdens and its benefits mutual. And a sovereign is barred by his own acts and concluded by his own admissions wherever he submits himself to litigation as a subject would be, else the litigation would be a mockery.

A bill in equity to account is the modem substitute for the old common law action of “accompt;” and was adopted from it, and follows its incidents. And in that the purpose of the plaintiff was to bring the defendant to account before the court, and thereby to ascertain and declare judicially the balance of account'between them, its amount, and from which of them it was due. This is distinctly shown in the old text-books in pleading. Impey’s Pleader — Account, 145, states: “ The object of this suit was to bring the party to account, and his definition of the action is ‘ a writ or action brought against a man wbo is liable to render an account,’ ” (Pulling on Mercantile Accounts.) And Blaekstone, vol. 3, pp. 162-3, describes the writ of account as “ commanding the defendant to render a just account to the plaintiff, or to show the court good cause to the contrary.” It arose from the feudal relation of lord and bailiff, and was the proper and peculiar remedy of the feudal lord for enforcing that accounting which it was the duty of his bailiff or steward to render. (Co. L., 172 a.)

The action of accompt,” therefore, was not, like the action of debt, a mere process for collecting an amount due. And the declaration in the old forms did not allege an indebtedness on the part of the defendant. It alleged his liability to account, and the default charged was a default in not accounting. (3 Wilson, 73.) And, therefore, it was a good plea to the action that the defendant had previously accounted, without regard to the fact that the balance of account had been found against him and was still unpaid. Viner’s Abr. Account (citing Brooke’s Abridgment of the Year Books) says, sec. 10, note : “ It was awarded a good plea, for by account before any auditors or before the plaintiff himself the action is altered into another nature. For he (the plaintiff) may have debt upon the arrearages. And the account is determined forever.”

And to this special purpose of obtaining an account, the proceedings were carefully adapted. For in the action of account there were two judgments. The first quod computet that the defendant should account. This judgment established the defendant’s liability to account, which the declaration averred, and nothing more. And it adjudged the defendant in mercy, “ because he hath not before accounted,” and for no other cause.

The defendant’s liability to account being found, the auditors were appointed by the court, and the order to them was “ to take and declare the said account between the plaintiff and defendant.” (3 Wilson, 89.) And before the auditors the defendant from the earliest times at the common law accounted on his oath. Brooke’s Abr. (citing Y. B. 41, E 3, pp. 3 and 9) states thus : He who is awarded to account swears that he will account well and lawfully.”

And on such oath and the other evidence adduced by the parties, the balance of the account between them was ascertained and reported by the auditors as the precise and only issue. And it was the duty of the auditor to declare this balance specifically. If it was found for the defendant, it was to be declared for the defendant in terms and amount. (1 Leonard, 219, Gaedton v. Lord Davies.) And a mere general finding that tbe defendant was not indebted was erroneous. (4 Wash. C. C., 442.) For there was no general issue (1 Ohitty PI. )■ that could authorize such a finding. It did not answer the plaintiff’s suit, nor the purpose of the procedure, rror fulfil the order of the court to the auditors, “ to take and declare the account ” between the parties. This could be done only by specifying the balance due, and to whom due. And the report of the auditors finding and declaring this, when accepted and recorded by the court, was an interlocutory judgment which would support a scire facias brought by the plaintiff, (11.Co. B,., 38,) or an action of debt brought by the defendant, (3 Serg. and R., 7.)

At the common law, when the report of the auditors was accepted and recorded by the court, if the balance was found for the plaintiff, he was entitled to a judgment, “quod recuperet,” that he should recover the amount and costs, and consequently that an execution should issue to enforccpayment. For the proceedings before the court showed that the defendant was in default,first, for not accounting, and then for not paying thb balance due. But if the balance was found due the defendant and so declared accepted and recorded, no judgment forits.recovery was rendered for him, and the only judgment rendered for him was that he should go without day. And the reason was , that in such case the plaintiff in the action of account was not shown to be in default; it was not his duty to keep the accounts, (as between the lord and his bailiffs, for instance,) or to know their result; he had not the means of doing so; and until the accounting was had and the balance of the accounts ascertained and declared, and after that demanded of him, the plaintiff was not in default nor liable to action. The report of auditors, though when accepted and recorded a judgment, was interlocutory only and not a foundation for compulsory process, but it was record evidence of the facts it found between the same parties. And the course of procedure was for the defendant in account to bring an action of debt for the balance of account found and declared to be due him, and to maintain his action of debt by the auditor’s report of the judgment made in the action of account. This was a judgment, and, as such, evidence; and on the authority of Lord Coke it was conclusive evidence, for, speaking of the effect as evidence of t'he report of auditors, appointed under the statute 2 Westminster, and thereby made judges of record, he says: “ If the lord be found in surplusage upon the account determined by the auditors, as an incident to their authority, in an action of debt brought by the bailiff for this surplus-age, the lord shall not wage his law, because by force of the act, they being judges, no wage of law can be allowed against tbe record.” And sncb has been the law from that day to this. In tbe case of McCall v. Cronsillat, 3 Serg. and R., 7, the plaintiff in an action of debt gave in evidence tbe report of auditors in an action o'f account, declaring the balance due him as defendant in account in the court of common pleas, C. J. Tilghman said: “ They (tbe court of common pleas) only confirmed the report of the auditors, but gave no judgment that McCall should recover any sum of money of Cronsillat; in.this respect the proceedings appear to have been regular. I have not been able to find in the books of entries any record of an action of account rendered in which it was found that the defendant was in surplusage, nor have I seen any authority for entering judgment that the defendant should in such case recover against the plaintiff. But the law seems to be well settled that the defendant may support an action of debt against the plaintiff for the amount of the sum in which he was found in surplusage by the auditor;” and judgment was rendered for the plaintiff in debt on the record he adduced.

These authorities referring their doctrine to the Year Books, determine that the auditors, in an action of account at the common law, must declare the balance due the defendant if they find it; that their report, accepted and recorded by the court, is an interlocutory judgment, and, as such, is evidence of a debt due from the plaintiff in account, to the defendant, and admissible in evidence in an action of debt brought by the latter against the former. And that it is conclusive evidence ; and the reason for this is that the matter in litigation in such action of debt is the. same matter that was judicially determined between the same parties in the action of account; so that the caséis within the maxim of public policy “ expedit reipubliecB ut sit finis litium.”

Now, if the proceeding in California had been an action of account at common law, and we had before us, instead of this decree a report of auditors accepted by the court, could it have been objected to it, that •the United States were not subject to judgment or process against them, when the record would have showed on its face that the United States had been plaintiffs in the action of account and that the final judgment of the court for the defendant was that he should go without day and nothing more; and that that only had been done which the United States had required to be done, viz: the balance of the account judicially ascertained and declared, and made an interlocutory judgment between the parties, which was not a ground for process, but by the rules of law belonging to such interlocutory judgments was evidence ? And would the case have been within the reason of the objection? The reason why an entry of a verdict on a set-off ora judgment against the United States for debt or costs in a court of common law or equity is a nullity, is, that it is beyond the power of the tribunal, and therefore irregular and illegal and without any efficiency whatever. It is not a verdict, or a judgment, nor a record between the parties. But in the case supposed this would not have been so, for the entry of the balance for the defendant would have been, neither irregular nor illegal, nor beyond the power of the tribunal. On the contrary, it would have been in the due course of legal procedure in the action of account and the legal result of the plaintiff’s suit and the fulfilment of its purpose and prayer and obligatory on the court; and therefore it would have been efficient according to its nature, and that is as an interlocutory judgment between the plaintiffs and defendants in the suit in which it was rendered; and a judgment, legal and valid where it is rendered, must, I think, have the effect of such a judgment everywhere, and be competent either as a bar or as evidence between the same parties anywhere.

Now, thee petitioner here is suing in an action of debt for the balance of account found and adjudged for the defendants in an action of account brought by the United States, and the only difference between the case supposed and that under consideration, is that in the latter the proceeding in account was by bill in equity instead of by an action at common law. But a bill in equity to account, as has been said, was adopted from the action of account, and had the same purpose and the like procedure. It alleges against a defendant a liability to account, and charges him with a default in not accounting, and it prays that the account may be stated and its balance ascertained and declared. In equity as at law there are two judgments; the former quod computet, and this fixes the defendant’s liability to account; then, the order to the master, who holds the place of the auditors at common law, is “to take a mutual account of the dealings and transactions between the plaintiff and defendant,” and the master ascertains the balance, and reports it specifically as to the amount due and to whom due; and this report being made to the court and accepted by it, it signifies that by a decree, which becomes thus an interlocutory judgment between the parties.

And that is the decree before us now, and as the balance was found for the defendant in account, the court made no decree that the defendant should recover the amount, but only such record as is made in the like circumstances in an action of account at common law. It accepted and affirmed the master’s report and it did no more. Its words are as follows: “ It is therefore ordered, adjudged, and decreed to be certified that the sum of $10,360 is due and payable to the said defendants, Heslep and Peck, with six per cent, interest from and after the first day of May, 1851.

This decree is according to the practice in equity where the balance of account is found for the defendant. It is an interlocutory judgment, in no way transcending a report of auditors at common law, but only equivalent to it, for, like that, it contains no order on the United States to pay the balance found. It only shows that the account has been stated and its balance ascertained, declared, and recorded fora judgment between the parties, according to the prayer of the plaintiffs’ bill and on their requirement.

And if the United States should anywhere sue Heslep and Peck for the cause of action set forth in the title of account in which this decree was rendered, the decree would be a complete bar to the suit as a judgment between the same parties for the same cause of action. And I think that if it is a judgment for one purpose it is for all purposes, and that if it has vitality enough for a bar, it has vitality enough to be evidence.

Nor can it be objected to this decree that the court might, as in modern practice in equity between individuals, have made it a ground for an order for payment and compulsory process against the United States. It might as well be argued that a general verdict for the defendant could not be rendered in a suit in which the United States are plaintiffs, because in such case, between individuals, such a verdict would subject the plaintiff to judgment and execution for costs. Costs are within the discretion of the court. And so the orders and decrees of a court in equity are in substance and form within its control, to be modified and fashioned as they may see fit. Besides, its compulsory process, is not like an execution at common law, the legal consequence of a judgment for a debt, for in theory it is a process for contempt,, pertaining to the court for the vindication of its authority and used or forborne at its discretion. And no argument can be founded on the assumption that a court of law or equity will abuse- its processes.

And I think this case has no similarity to the case of Tillou v. The United States, or any other case arising on set-offs under the act of March 3, 1797, 1 U. S. L., 512. The purpose and effect of that statute is to correct the mistakes of the accounting officers and to place the defendant in court as he would have stood if he had been correctly dealt with at the treasury. The credit it permits the defendant to claim and prove are proper set-offs against the particular debt claimed of him, but this in no way assimilates the proceeding under statute to an action of account. For in cases under the statute the only issue tendered by the United States is their right to the particular debt they claim; they submit that right and nothing else to j udgment; and neither their courts nor the courts of States can alter or transcend the issue tendered, or derogate from that sovereignty that -may be plaintiff hut cannot be made defendant, or subjected to suit or process except at its own pleasure.

But in the bill in equity to account, in which this decree was made, the very issue tendered by the United States was the balance of accounts between them and Heslep and Peck, and this the United States themselves required should be ascertained and declared in the due form of legal procedure in the action of account in equity. And the decree offered in evidence only shows that exactly that has been 'done which the United States required should be done. In all this the United States are plaintiffs, and plaintiffs only, and keep their state 'as sovereign, exempt from suit and process except here, where under their own statutes they respond according to the rules of law and evidence.

To all objection to the admissibility of this decree, founded on the sovereignty of the United States, and its consequent exemption from suit and process, I think it answer enough to say that the decree offered in evidence only shows that the United States were plaintiffs in a bill of account, and required the account between them and Heslep. and Peck to be stated, and its balance judicially ascertained and declared and recorded for a judgment, and that this and no more was done. And as that balance of accounts is the claim of the petitioner here,.I think the record of its previous adjudication is admissible here and conclusive against the United States. This only applies to the United States the rule that a matter once judicially determined between litigants shall not again be brought into litigation between them. The rule itself requires no authority and has the highest. The Supreme Court said in the case of The United States v. Nourse, 9 Peters, 8, in their opinion delivered by Chief Justice Marshall, “ it is a rule, to which no exception is recollected, that the judgment of a court of competent jurisdiction concludes the subject-matter between the same parties. They cannot again bring it into litigation.”

The claim for interest in this case makes a part of the decree and is as much proved by the decree as the principal sum of the debt. Upon what facts either was found by the court in California cannot, by the rule controlling judicial tribunals, be inquired into here. The decree of its own force, if of any force, precludes this. In the words of the Supreme Court, 1 Howard, 149, United States Bank v. Beverly:. “ Whatever, therefore, our opinion might now be as to the facts adjudicated in the former case, the judicial power is not competent to revise the evidence on which the decree was rendered on any ground now set up in the answer of the defendant or apparent on the present record, and they must be taken to be beyond all controversy in this or any future case between the same parties.”

It was objected by the Solicitor that the case shown on the record was not a subject for a bill to account, because it showed there were no mutual accounts, and no privity between the parties, and therefore the court in California could not rightfully entertain the suit.

But the bill avers that a mill and its machinery and implements, at a date specified, belonged to the United States, and afterward came to the possession of the defendants under contracts for their use and to account for receipts from, and expenditures in their use, and for storage contracts. This clearly would make the privity and the liability to account which is required for a bill to account, and would give the court in California jurisdiction of the case. And we cannot try the merits of the case over again, nor entertain objections which might have been made to the original bill. And the only questions here are the admissibility and effect of the decree.

It was also objected that the petitioner sues as assignee. For the reasons stated by me in Sines’s case and Cote’s case, I think this not a valid objection; and that the act of 1853, passed before this court existed, had no reference to its jurisdiction, which is to be sought in-the acts of Congress constituting this court, which expressly provide for litigation and judgments on alleged claims here. 
      
      See cases appealed to the Supreme Court of the United States, in this volume.
     