Fendall v. United States

12 Ct. Cl. 305

• Court: United States Court of Claims
• Decided: December 15, 1876
• Status: Published

Opinions

Nott, J.,

delivered the opinion of the court:

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

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

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