Page:United States Reports, Volume 257.djvu/84

Rh 1. In cases of this kind, the collector is merely the nominal defendant, and it would seem immaterial whether the suit was brought against the collector who collected the money or his successor in office, so long as the Government has an opportunity to defend. The question before the court is whether the United States has received moneys which properly belong to the plaintiff.

The ailments advanced in the opinions in Roberts v. Lowe, 236 Fed. 604; Philadelphia, H. & P. R. R. Co. v. Lederer, 242 Fed. 492; 239 Fed. 184, are not well founded.

delivered the opinion of the court.

 This is a suit brought to recover internal revenue special excise taxes for the years 1910 and 1912, assessed under the Act of Congress of August 5, 1909, c. 6, § 38, 36 Stat. 11, 112; and paid by the plaintiff, the defendant in error, under duress. The taxes were collected by S. M. Fitch, then collector of internal revenue, and it was certified by the District Court as part of its judgment that there was probable cause for the act of the collector, that he acted under the direction of the Commissioner of Internal Revenue, and that the amounts recovered should be provided for and paid out of the proper appropriation from the Treasury of the United States. The defendant is the present collector for what was Pitch's district and was held liable by this judgment. The case was taken to the Circuit Court of Appeals which has certified the following questions:

"1. Assuming that the declaration states a good cause of action had the suit been brought against S. M. Fitch, the internal revenue collector who actually collected and received the taxes, does it state any cause of action whatever against said S. M. Fitch's successor in office, the plaintiff in error, against whom the suit was brought, but who had no participation in the collection, receipt or disbursement of such taxes?

