Page:Federal Reporter, 1st Series, Volume 10.djvu/97

 ^mn:s v. ibthdb. 85 �history of legislation and adjudication in respect to suits against col- lectors to recover back customs duties illegally exacted, will aid in a decision as to the meaning of the present statutory provisions ; and legislation in regard to paying interest on other claims, and on judg- ments for them, may also be referred to. �Prior to the enactment of section 2 of the act of March 3, 1869, (5 St. at Large, 348,) the moneys paid to a colleotor of customs for unascertained duties, or for duties paid nnder protest against the rate or amoiint of duties charged, were retained by the collector. That act required such moneys to be paid into the treasury, and made it the duty of the treasury department to refund overpayments made under protest out of any money in the treasury not otherwise appropriated. In 1845 it -was decided by the supreme court in Cary v. Curtis, 3 How. 236, that the effect of section 2 of that act was to take away the right to bring an action against the collector for moneys illegally exacted by him as and for duties, and paid to him under protest, where he had paid them into the treasury before suit brought. This decision was followed by the act of Pebruary 26, 1845, (5 St. at Large, 727,) which provided that nothing in section 2 of the act of 1839 should be construed to take away the right of any person paying money as and for duties under protest, to a collector, in order to obtain goods imported by him, the duties not being authorized by law, to maintain an action at law against the collector to try the legality and validity of the demand and payment of duties, and to have a trial by jury touching the same, or to authorize the secretary of the treasury to refund any duties paid under protest. This legislation restored the right to sue the collector. Of course a judgment against him could be enforced by execution against him, and under section 8 of the act of August 8, 1842, (5 St. at Large, 518,) now section 966 of the Revised Statutes, interest on such judgment from its date could be colleoted by execution against him. �On the eighth of August, 1846, an act was passed (9 St. at Large, 84, 675) providing for the payment by the secretary of the treas- ury to six different parties named of any excess of duties paid by them to the collector of the port of New York upon the importation of certain specified goods beyond what the same were legally charge- able with, and in four of the bis cases interest on the excess is speci- fied as to be paid ; the direction as to three oi the four being that it is to be interest from the time of the payment to the collector. By sec- tion 2 of that act the secretary is authorized, out of any money in ��� �