
    Reginald Fendall, administrator of Lammond, v. The United States.
    
      On the Proofs.
    
    
      The government brings suit against a disbursing officer and his sureties on their bond for a deficit in his account. He pleads non est faetmn, nil dobet, and a set-off for salary clue. The bond is produced before the jury and proven. Evidence is given by him under the plea of nil dobet, but none under the plea of set-off. The jury, by direction of the court, render a general verdiot in favor of the defendants. The officer’s administrator (he having died) brings suit in this court for the balance of salary previously pleaded, as a set-off. The defendants here insist on the former judgment as a bar. They also set up by way of counter-claim the deficit in the officer’s . account.
    
    I. Where in a former suit against a disbursing' officer and his sureties on their bond ho pleaded non est factum, nil debet, and a sét-off, and there was a general verdict for the defendants, this' court in a subsequent suit where the former is pleaded in bar will ascertain from evidence aliunde 1-lie record on which plea the verdict went.
    
      II.Though the matter given in evidence under the plea of nil üébet in the former suit may not have constituted a defense in the opinion of this court, yet if the defendant’s verdict went on it and the plaintiff content, the judgment would constitute a "bar in a subsequent suit involving the same subject-matter.
    III. While there are cases in which it may be questioned whether the government will be concluded by an estoppel in pais, and while there are varying decisions as to whether it will be concluded by an estoppel by deed, it has never been doubted that it, like an ordinary suitor, is subject to the principle of ros judicata. The cases relating to this point reviewed.
    IV. Where the government voluntarily goes into a court of justice as a plaintiff, its litigation, like that of other suitors, is subject to the general principle that there must be an end of litigation; and the defendant whom it impleads and subjects to the risks and costs of litigation may invoke subsequently, like other defendants, the maxim Nemo üébet bis vexari.
    
    
      The Reporters’ statement of tbe case:
    This case was previously tried, both parties relying, without explanation of the record, on the former verdict. The court held that nothing could be determined from a mere inspection of the record, and remanded the case for evidence aliunde (12 C. Cls. R., 305). On the present hearing, such evidence was offered and the following facts substantiated:
    I. On the 20th of April, 1806, Peter Lammond was appointed a temporary clerk of the first class in the office of the Third Auditor- of the Treasury, and was removed on the 20th of April, 1869.
    During that period he received as compensation, less tax deducted, $3,209.93, leaving due to him as a balance of his salary the sum of $390.07.
    II. Previously to his appointment as clerk in the Treasury Department the said Peter Lammond had been a disbursing clerk in the Department of the Interior.
    III. On the 27th of February, 1869, suit was brought by the United States against Peter Lammond and the sureties on his bond, in the supreme court of the District of Columbia, wherein his official bond, given by him as such disbursing clerk,'was declared upon, and it was alleged that he had not faithfully discharged the duties of his said office, and that there had been received by him between the 3d day of November, 1856, and tbe 29th day of May, 1865, large sums of money, amounting to $60,000,000; and that of the moneys so received by him he had failed to disburse for the benefit of the plaintiff on the 31st May, 1865, the sum of $4,383.55.
    On the 30th June, 1871, he pleaded (1) non est factum; (2) statute of limitations; (3) never indebted; (4) set-off; and filed a bill of particulars of said fourth plea as follows:
    “ Washington, D. C., October, 1869.
    “ United, States to Peter Lammond, Dr.
    
    To services as a cleric of the first class in the office of the Auditor of the United States Treasury from April 20,1866, to April 15,1869, at $1,200 per an-num . $3, 600 00”
    The pleas of Lammond’s co-defendants were substantially the same, and on the 11th of April, 1873, a jury was sworn to try the issues joined. The bond of Lammond and his co-defendants was read to the jury, and the government, as plaintiff, gave in evidence a transcript of the books of the Treasury Department, duly certified by the proper officers, showing that on the 20th of June, 1865, there was due to the United States from Peter Lammond the sum of $4,383.55, as disbursing clerk of the Interior Department, as follows: On account of “ Cash system military patents,” $296.64; on account of“ Salaries in the office of Commissioner of Land Office,” $2,237.63; on account of “Salaries of additional clerks General Land Office, military bounty land,” $1,849.28.
    No evidence upon the plea of set-off was offered by the defendants, and it was not allowed to go to the jury.
    On the 14th of January, 1873, the jury found for the defendants, and judgment was entered on the verdict.
    IN. Peter Lammond having died intestate, Peginald Fendall was, on the 8th July, 1873, appointed administrator by the supreme court of the District of Columbia.
    Y. The salary due Lammond from February 26,1869, to April 20,1869, was $175.90.
    
      Messrs. Durant & Uornor, for the claimant. ‘
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants.
   Nott, J.,

delivered tlie opinion of tlie court:

From August 21, 1806, when be was appointed, to April 20, 1869, wlien be was removed, tlie claimant’s intestate, Peter Lammond, was a cleric of tbe first class in tbe Treasury Department, at a salary of $1,200 a year. At tbe time of bis removal tliere remained due to him a balance of bis salary, amounting in fact to $390.07, thoiigh tbe petitioner alleges it to have been only $345.76. But Mr. Lammond bad jueviously been a disbursing clerk in tbe Interior Department, andón tbe 26th February, 1869, á suit bad been brought against him and bis sureties on his bond to recover a deficit of $4,383.55. Mr. Lam-mond, as defendant in that suit, pleaded non est factum, nil debet, and a set-off. The subject of tlie set-off there set up was the cause of action now sued upon, viz, the salary due to him from tbe government. On the trial, the jury found a general verdict in bis favor.

Subsequently Mr. Lammond died, and bis administrator brought tbe present action in this court. The government lias pleaded tbe general issue, and has set up by way of set-off or as a counter-claim tbe same alleged indebtedness of Lammond as disbursing officer. Both parties, in a measure, have relied upon tbe judgment in tbe former suit: the claimant, to establish by the estoppel of record that Lammond was not indebted to tbe government as disbursing officer; tbe defendants, to show that tbe cause of action now sued upon was used by tlie claimant’s intestate as a set-off, and in that way absorbed in tbe former action.

It is evident that if, in that action brought upon an official bond, the verdict of tbe jury went upon tbe plea of non est factum, nothing was determined which would avail either party in this suit. On tbe one band, Lammond might have been indebted to tbe government, though no bond bad been executed; on tbe other, a verdict for him upon that plea would not include or affect tbe then set-off, the present cause of action. It was therefore decided at a former bearing of this case (12 C. Ols. B., 305) that, as it could not be determined by an inspection of tbe record whether tbe verdict that tbe plaintiff take nothing and tbe defendants go without day went upon tbe plea of non est factum, nil debet, or set-off, evidence aliunde tbe record was necessary to show tbe matters ivhicli were submitted to and passed upon by tlie jury. The case was accordingly remanded for that purpose.

It now comes to a second hearing upon such evidence. It appears from this evidence that the bond of Lammond upon which the former suit was brought was produced before the jury and the handwriting of the obligors proven. > It also appears that the evidence was given by him under the plea of nil debet. And again it appears that no evidence upon the plea of set-off was offered by him or by the other defendants, and that it was not allowed to go to the jury. In a word, the general verdict in favor of Lammond under the conditions of the case could only have been rendered upon the plea of nil debet; and, therefore, it must be presumed that that issue alone was the subject of controversy submitted to and passed upon by the jury. It is by no means clear that the matters put in evidence under that plea constituted a defense to the action; but as the government did not review the rulings of the judge before whom the case was tried, the sufficiency of the evidence cannot now be inquired into, and the presumption is that the government rested content with the verdict. That verdict, so long as it stands, would establish the fact, as between ordinary suitors, that the defendants there owed nothing to the plaintiff upon the transactions between them incidental to his office of disbursing officer.

While there are cases in which it may be questioned whether the government will be concluded, like an ordinary corporation, by an estoppel in pais, and while there are varying decisions as to whether the government will be concluded like an individual by an estoppel by deed (Bigelow on Estoppel, 246, and cases cited), it has never been doubted, so far as we know, that it, like ordinary suitors, is subject to the principle of res judicata. By the case of The United States v. The Bank of the Metropolis (15 Pet., 377) it was settled that when the government becomes a party to commercial paper, it must be held to the same diligence and be bound by the same principles of the law merchant that would govern individuals. In the case of The United States v. The State Bank of Boston (96 D. S., 30) the Supreme Court went still further, and held that the rules of law applicable to individuals are to be applied to the government in courts of justice, if its sovereignty be in nowise involved. In Tillou’s Case (6 Wall., 484, 7 C. Cls. R., 18) the Supreme Court conceded in effect that the government would have been concluded by a former verdict offered in evidence if the court wherein the verdict was rendered had had jurisdiction to render a judgment against the government on the verdict. In Lands Case (8 Wall., 185, 7 C. Cls. R., 97) the Supreme Court again conceded that a decree against the government in a court of admiralty might conclude it in another suit in another court. And in O'Grady's Case (22 Wall., 641, 10 R. Cls. R., 134) the Supreme Court expressly held that a judgment of this court from which no appeal had been taken was conclusive rip on the government, and that the government could not subsequently assert a lien upon the subject-matter of the former action which by ordinary rules of pleading should have been then asserted as a matter of defense.

For these reasons we are of the opinion that wdien the government voluntarily goes into a court of justice as a plaintiff, its litigation, like that of other suitors, is subject to the general principle that there must be an end of litigation, and that the defendant, whom it impleads against his will and subjects.to the risks and costs of litigation, may subsequently invoke, like other defendants, the maxim Nemo debet Ms vexarijpro %ma eadem causa.

The judgment of the court is that the claimant recover of the defendants the sum of $345.76; and that the defendants’plea of set-off or counter-claim be dismissed.  