In Error to the Circuit Court of the United States for the Western Division of the District of Washington.

This is an action brought by the United States on the bond of Moses P. Wyman, formerly agent of the Crow Indian Agency, in the state of Montana. In the original complaint it was alleged that on February 4, 1890, the agent was appointed, and that on April 1, 1890, he executed his bond and took his oath of office, and that he held said office until February 28, 1894; that during the time while he held said office there came into his hands directly from the United States $88,672.57, and from sales of property belonging to the United States, sold by him, $111,457.84, amounting in all to $200,130.41, which he received for the use of the plaintiff, of which sum he disbursed and accounted for $199,119.91, but did not account for or disburse the balance of $1,010.50, which sum he converted and appropriated to his own use, in breach of his trust and the conditions of his bond; that the plaintiff made demand upon the agent and his bondsmen for said balance; that on October 18, 1898, the said agent died in Pierce county, Wash., and the Fidelity Trust Company was appointed his administrator; that the plaintiff’s claim was duly filed with the said administrator for said balance, but was rejected and disallowed. With the complaint the plaintiff in error filed a bill of particulars, setting forth a statement of the account of said agent from April. 1, 1890, to February 28, 1894, showing a balance of $157.50 in the agent’s favor; but thereafter, in a supplemental account, made on September 26, 1896, charging the agent under his bond with the sum of $1,168.00, upon information purporting to show that in the fall of 1891 he contracted with one David G. Browne for the Indians of said agency to haul 200 tons of hay to Fort Custer for Browne, for which the Indians were to receive $5 per ton, and that for such hauling by the Indians Browne paid the agent for the Indians $1,168, which the agent never paid to the Indians, but appropriated to his own use; upon which, upon a statement of the whole account of said agent made by the Auditor of the Interior Department, Treasury Department, on July 14, 1899, a balance of $1,010.50 was found against him under his bond. The Fidelity Trust Company answered the complaint, and alleged that said agent, before the commencement of the action and during his lifetime, satisfied and discharged the plaintiff’s alleged claim by payment thereof. The defendants in error, Jessie J. Wyman and Nellie M. Browne, by leave of the court, intervened as the heirs at law of said Moses P. Wyman and also answered the said complaint. They alleged that “on or before February 28, 1894, the said Moses P. Wyman duly and lawfully paid out and expended all of the said sum of $1,010.50 for account of said plaintiff, as will more fully appear upon the trial for cause.” Thereafter the interveners moved the court that the plaintiff be required to set forth the terms of the bond, and to declare what the supposed moneys or funds were from which the balance of $1,010.50 was alleged to have been taken and appropriated by the said agent to his own use. The motion was allowed by the court, and thereupon the plaintiff filed an amended complaint setting forth the bond in haec verba, the condition whereof is as follows: “The condition of the foregoing obligation is such, that, whereas the President of the United States has appointed the said Moses P. Wyman to be agent for the Indians of the Crow Agency in Montana by commission dated February 4, 1890, and said Moses P. Wyman shall, at all times, during his holding and remaining in said office, carefully discharge the duties thereof, and faithfully disburse all public moneys, and honestly account, without fraud or delay, for the same and for all public funds, including funds designated in regulations of the Indian department as miscellaneous receipts, and moneys belonging to the Indians under his charge which shall or may come into his hands, and all other funds received by him by reason of his position as Indian agent, and for all public property placed in his charge, then the above obligation to be void and of no effect; otherwise to remain in full force and virtue.” The amended complaint alleged, further, that on July 14, 1899, upon a settlement of said agent’s account, duly made by the Treasury Department and the Auditor of the Interior Department, it was found and determined by said auditor that there was a balance due the United States from said Indian agent on account of such agency and upon said bond of $1,010.50, and a certificate to that effect was duly made by said auditor. The amended complaint proceeded to allege a demand upon the agent, and set forth the facts of his death, and the appointment of the administrator of his estate, and the due presentation of said claim to said administrator, and its rejection thereof. The Fidelity Trust Company, answering the amended complaint, admitted that on September 12, 1899, the plaintiff filed with said administrator its claim against said estate for $1,010.50, and that the administrator rejected the same, and that on March 8, 1900, the plaintiff again filed with the administrator the said claim, which was again rejected and disallowed. For a further and separate defense, the trust company alleged that before the commencement of the action, and during the lifetime of said Moses P. Wyman, the said Wyman satisfied and discharged the plaintiff’s alleged claim by payment thereof. The answer then proceeded to set up the defense that the action was barred by reason of the following facts: That on October 3, 1898, said Moses P. Wyman died, and on January 26, 1899, his will was admitted to probate, and the trust company was duly appointed administrator with the will annexed; that the administrator duly published notice to creditors of said estate, requiring them to present their claims within one year after the date of such notice, the first publication whereof was made on February 2, 1899; that on September 12, 1899, the plaintiff presented to said administrator for allowance its claim for $1,010.50, and the administrator indorsed said claim as rejected, and forthwith notified the plaintiff thereof; that on September 12, 1899, on the disallowance of said claim, the plaintiff presented the same to the superior eourt of the state of Washington for Pierce county, having jurisdiction of such matters, and the court disallowed the same; that this action was not begun within a period of three months after the rejection of said claim; that thereafter, on March 8, 1900, the plaintiff again presented for allowance the said claim, which claim was on said date duly indorsed as rejectéd, and the plaintiff was notified thereof; that said presentation on March 8, 1900, was not made within one year after the date of said publication of notice to creditors. To this second defense the plaintiff demurred, on the ground that the facts therein alleged constituted no defense, and the court’ sustained the demurrer. The interveners also answered the amended complaint, admitting the execution of the bond, but denying that the said Moses P. Wyman was indebted to the plaintiff in the sum of $1,010.50 or in any sum whatever, and they denied that the said supplemental account of July 14, 1899, as stated in the amended complaint to be between the said agent and the plaintiff, is duly stated as to the item of $1,1-68, wherein it is supposed that that amount or any amount of money whatever was in the fall of 1891, or at any other time, paid to the said agent in his official capacity by one David G. Browne for or on account of the plaintiff, or for which the agent was in any manner accountable to the plaintiff. The answer proceeds to allege that at the expiration of the term of office of said agent the United States was indebted to him in the sum of $157.50; that the account of said agent so stood until July 14, 1899, when the Interior Department received information' that said agent had in 1891 received $1,168 of one David G. Browne for account of the United States as such agent, and that upon this information a new and so-called supplemental account statement by direction of the Treasurer’s Department was made up against said agent by the auditor of that department for the Department of the Interior, by charging that amount additionally against said agent’s accounts, whereby the account was changed from one showing a balance of $157.50 in the agent’s favor to one showing a balance of $1,010.50 against him; that said supposed sum of $1,168 was never received by said agent from said Browne, but that it is true that in the latter part of the year 1891, while said Moses P. Wyman was Indian agent and acting as such, he was requested by one David G. Browne, who then had a government contract to furnish hay for the use of the government at Fort Custer, Mont., to take and receive from him, the said Browne, the sum of $1,000, to be held by said Moses P. Wyman upon his own personal and private account, and not as Indian agent, and for and on account of said Browne, to be by him, the said Wyman, paid out for and on account of said Browne to certain Crow Agency Indians owning and having teams of their own, a large number of whom had been hired by said Browne to haul 170 V25 tons of hay, at the rate of $5 per ton, from Dana’s Ranch, near the Grow Agency, to the government post at Fort Ouster; that on account of such hauling the agent paid out to the Indians $851.80 on account of their services so rendered to Browne, and for the remainder accounted to the said Browne. The answer sets up the further defense that the action is barred by reason of the facts so set forth in the answer of the trust company, to all of which portion of their answer a demurrer was interposed, which was sustained by the court.

The case was tried before the court without a jury, and on the evidence adduced the court found, among other findings of fact, the following: “That on the 14th day of July, 1899, upon the settlement of his, the said Moses P. Wyman’s accounts, as such agent, made by the Treasury Department of the United States and the Auditor of the Interior Department thereof, it was found and determined by said auditor that there was a balance due the United States from said Indian Agent Wyman, on account of such agency, and upon said bond, the sum of $1,010.50, and a certificate to that effect was made by said auditor; that the item out of which this balance so certified grew was on account of money paid by a man named David G. Browne to Moses P. Wyman, Indian agent, to pay for the hauling of something over two hundred tons of hay by the Crow Indians under his charge, they to be paid for said hauling at the rate of five dollars per ton; that the Indians hauled the hay, though the amount thereof was ascertained to be less than two hundred tons; that the said Wyman did not pay the said money to the Indians, nor return the same to Browne, or account for it to the government; that the money intrusted to Wyman was the money of a private individual, to wit, David G. Browne; that no portion of it was drawn from the treasury of the United States, and that the government never had any right or claim to it.” Upon those findings of fact the court drew the legal conclusion that no part of the money in question ever belonged to or was due to the United States, and that the evidence offered on the part of the government failed to prove the particular breach of bond sued on and assigned in the complaint, and that the evidence offered on the part of the government in the case was inadmissible, incompetent, and wholly insufficient to prove the issue on its part This legal conclusion and the judgment so rendered are assigned as error.

The court also found that the claim of the government is not barred by the state statute of limitations, regarding either the time of presenting a claim against the decedent’s estate or the time within which to bring an action for the rejection of such a claim. Judgment was rendered for the defendants in error; whereupon the plaintiff in error sued out the present writ, and the defendants in error, the said interveners, made joinder therein, and assigned as cross-errors that the trial court sustained the demurrer of the plaintiff in error to that portion of the answer to the amended complaint which set up the defense that the action was barred, and the defense that the court had no jurisdiction of the cause, for the reason that the plaintiff had prosecuted its claim and demand in the superior court of the state of Washington for Pierce county against the administrator of said decedent, and that the trial court erred in not holding that the moneys alleged to have been received by Moses P. Wyman from David G. Browne were received by him only as the bailee and agent of said Browne.