Opinion of the Court.

are of opinion that, as a matter of fact, and even conceding that A. B. Cook was a competent witness, the assignment by him to his wife is not satisfactorily proved to have been made or delivered prior to the transaction of June 14, 1880. The evidence on that point is conflicting, and it would not be profitable to discuss it in detail. As the suit cannot be maintained without proof of the assignment,

The decree is affirmed.

UNITED STATES v. PARKER.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEVADA.

Argued January 3, 1887.- Decided January 24, 1887.

A judgment entered upon motion of defendant's attorney of record that "it appearing that the subject-matter in this suit has been adjusted and settled by the parties, it is therefore ordered that this cause be, and the same is, hereby dismissed," is a judgment on the merits, final in form and nature, and is a bar to a subsequent suit against the defendant for the same cause of action. This rule also prevails in Nevada by statute. Gen. Stat. Nevada, 1885, § 3173.

The difference between a retraxit and a non-suit pointed out.

As pleadings in Nevada are required to be construed in a sense to support the cause of action or defence, and as facts in the record not fully set forth in defendant's plea clearly show that the cause of action sued on in this case is the cause of action in the judgment pleaded in bar; Held: that the defendant's plea sufficiently avers all the facts necessary to constitute the former judgment a bar to this action.

Mr. Solicitor General for plaintiff in error.

Mr. C. J. Hillyer for defendants in error. Mr. William M. Stewart was with him on the brief.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

This is an action at law commenced by the United States, on the 18th of November, 1885, against Hubbard G. Parker, as principal, and William M. Stewart, as surety, upon an offi

Opinion of the Court.

cial bond executed on the 12th day of March, 1867, in the penal sum of $20,000, the condition of which was that, whereas the said Hubbard G. Parker had been appointed superintendent of Indian affairs for Nevada, and had accepted such appointment, if the said Hubbard G. Parker should at all times carefully discharge the duties thereof, and faithfully expend all public moneys and honestly account for the same, and for all public property which should or might come into his hands, without fraud or delay, the obligation should be void.

It is alleged in the complaint, that, after the execution of the bond, and while the defendant Parker still held and remained in said office, and prior to November 18, 1869, the plaintiff placed in his hands various and sundry large sums of money to be expended by him for the benefit of the Indians of Nevada, and to be properly accounted for by him. That on said November 18, 1869, "there, then, and ever since has remained and now remains of said moneys in said defendant Parker's hands, unexpended and unaccounted for, the sum of $6184.14;" and he having failed to account for or to return the same to the plaintiff, judgment is prayed for against the defendants for that amount, with interest thereon at the rate of six per cent. per annum from November 18, 1869. The defendants filed the following answer:

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"That heretofore, to wit, on the 27th day of November, A.D. 1871, the above-named plaintiff commenced an action in the Circuit Court of the United States, Ninth Circuit and District of Nevada, against said above-named defendants, upon the official bond of the defendant Hubbard G. Parker, as superintendent of Indian affairs for Nevada, (the same identical. bond as set out in the complaint herein,) to recover the sum of fifteen thousand one hundred and eight and ($15,108.62) dollars, together with interest and costs. That said action was commenced by the filing of a complaint and the issuance of summons thereon in due form of law. That the said defendants appeared in said action by their attorneys, Ellis & King, and on, to wit, December 15, A.D. 1871, filed their answer to the complaint, and, among other things, denied that there was any balance due the United States from the said defend

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Opinion of the Court.

ant, Hubbard G. Parker, as superintendent of Indian affairs for Nevada, or otherwise. That said United States Circuit Court had jurisdiction of the parties and the subject-matter of said action.

"That afterwards, and on, to wit, the 1st day of December, A.D. 1873, said cause came on for trial in the said Circuit Court of the United States and District of Nevada, before Hon. Lorenzo Sawyer, Circuit Judge, and Hon. E. W. Hillyer, United States District Judge for Nevada, the plaintiff being represented by its duly authorized and appointed attorney for the District of Nevada, Jonas Seely, and the defendants being represented by their attorneys, Messrs. Ellis & King.

"That thereupon the defendants, by their attorneys, presented to the court a statement of accounts duly certified by the Second Auditor and Second Comptroller of the Treasury Department of plaintiff, showing that said defendant Hubbard G. Parker's accounts with the United States as superintendent of Indian affairs for Nevada had been settled and adjusted, and that the said defendant Parker was discharged from all claims of the United States as superintendent of Indian affairs for Nevada, or otherwise, and that said Parker was not indebted to the United States in any sum whatever as superintendent of Indian affairs for Nevada, or otherwise.

"Whereupon in open court, on motion of defendants' attor neys, the district attorney representing the United States consenting thereto, the following judgment was duly made and entered, to wit:

"Upon motion of Ellis & King, attorneys for defendants, and it appearing to the court that the subject-matter in this suit has been adjusted and settled by the proper parties in Washington, it is therefore ordered that this cause be, and the same is, hereby dismissed.'

“Defendants further aver that said judgment so as aforesaid made and entered is a bar to any and all claims of the plaintiff in this action against each and all of the said defendants, and that the said plaintiff is estopped thereby, and ought not to have or maintain this action.

"And for further and separate answer defendants aver that

Opinion of the Court.

on the 21st day of June, A.D. 1872, the said defendant Hubbard G. Parker, as superintendent of Indian affairs for Nevada, made a full settlement with proper officers of the United States of all his accounts as superintendent of Indian affairs for Nevada, and his accounts were finally adjusted and settled by the Second Auditor and Second Comptroller of the Treasury Department of plaintiff, whereby he was fully discharged from all obligations and demands of the United States as superintendent of Indian affairs for Nevada, or otherwise.

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"Defendants further aver that the pretended claim against these defendants for six thousand one hundred and eighty-four and 1 ($6184.14) dollars is founded upon a pretended readjustment of the accounts of the said defendant Parker by the Second Auditor and Second Comptroller of the Treasury Department of plaintiff, made on the 25th day of June, A.D. 1884, and that such pretended readjustment was made without authority of law. That the said settlement and adjustment made on the 21st day of June, A.D. 1872, aforesaid, was final and conclusive, and a bar to the pretended claim for $6184.14 herein, or any claim of the United States against these defendants, or either of them.”

To this answer the plaintiff demurred, on the ground that it did not state facts sufficient to constitute a bar to the cause of action set out in the complaint. This demurrer was overruled; and, the attorney for the plaintiff resting his case upon the demurrer, judgment was entered in favor of the defendants, to reverse which the United States have sued out and now prosecute this writ of error.

In the view which we take of the case, it is not necessary to consider the validity of the second defence set up in the answer. The points relied upon by the plaintiff in error, so far as the first defence is concerned, are, 1st, that the former judgment relied on as an estoppel does not appear to be for the same cause of action as that on which recovery is now sought; and, 2d, that the judgment is not a final judgment on the merits. The two actions are upon the same bond, but it is alleged that it does not sufficiently appear that the recovery sought in the two actions is upon the same breach. In the

Opinion of the Court.

first action the amount alleged to be due was $15,108.62, the action having been brought November 27, 1871. On the trial on December 1, 1873, the averment is that the defendants. presented to the court a statement of accounts, duly certified by the Second Auditor and Second Comptroller of the Treasury Department, showing that the defendant Parker's accounts with the United States as superintendent of Indian affairs for Nevada had been settled and adjusted, and that Parker was thereby discharged from all claims of the United States against him as superintendent of Indian affairs for Nevada, or otherwise, and that said Parker was not indebted to the United States in any sum whatever as superintendent of Indian affairs for Nevada, or otherwise.

It is stated, by way of recital in the judgment itself, that it thus appeared to the court, "that the subject-matter in this suit has been adjusted and settled by the proper parties in Washington." This recital, together with the judgment founded on it, was entered by the consent of the attorney representing the United States, who thus in open court officially admitted the effect of the evidence to be as claimed. The present action was begun on the 18th of November, 1885, but the breach alleged occurred on November 18, 1869, the judgment demanded being for the amount stated then to have become due, with interest thereon from that date. The cause of action, therefore, arose and existed at that time, and if in existence now it must have been so at the date of the trial of the first action, to wit, December, 1, 1873. It is, therefore, a fair and reasonable, if not a necessary, inference that the amount alleged to be due in the present action was part of the larger amount sought to be recovered in the former action. It is not material that the two sums are not identical; it is sufficient that the smaller was part of the larger amount. In the first cause there might have been a recovery, if the proof had justified, for a sum less than that demanded. It was found and adjudged by the court in that cause, not only that the whole sum demanded was not due, but that there was nothing due from the defendant to the United States; and if nothing was then due, the amount now sought to be recovered