the ascertained deductions had been made, and this is assigned for error. As a general rule a patentee is not entitled to interest on profits made by an infringer. The reason is that profits are regarded in the light of unliquidated damages, (Parks v. Booth, 102 U. S. 106,) but in many of the cases it is said that circumstances may arise in which it would be proper to add interest. Mowry v. Whitney, 14 Wall. 653; Littlefield v. Perry, 21 Wall. 230. Here, as has been seen, in effect, the original decrees rendered in July, 1874, were affirmed in 1876, to the extent of the present recoveries. The cases were only sent back to ascertain how much should be deducted from those decrees for errors in the accounts as then stated. If the decrees had been entered originally for the present amounts, the patentee would have been entitled to interest from 1874. That was settled in Railroad Co. v. Turrill, 101 U. S. 836, which was one of the cases affirmed in whole at the former hearing in this court. Under these circumstances, it seems to us not at all inequitable to allow interest on the corrected amounts from the date of the master's report in 1879. The cases are entirely different in this particular from what they would have been if the original decrees had been reversed for error in the principles of the accounting. Those decrees may very properly be considered as affirmed in part and reversed in part, the new reference being had only to find out the exact extent of the reversals.

Since the present appeals were taken the patentee has died, and the appellants now suggest that the causes of action do not survive, and the suits cannot be further prosecuted in the name of the legal representatives of the decedent. As to this, it is sufficient to say that what was called by Chief Justice MARSHALL, in Gordon v. Ogden, 3 Pet. 35, "the silent practice of the court," has always been the other way. It is every-day practice to revive such suits, and the books are full of cases in which this has been silently done, no one apparently entertaining a doubt of its propriety. The decree in each of the cases is affirmed.

Mr. Justice BLATCHFORD did not sit in these cases, and took no part in their decision.

(110 U. S. (272)

JAMES, Adm'x, etc., v. HICKS.

(January 28, 1884.)

1. ACTION TO RECOVER TAXES ILLEGALLY ASSESSED-APPEAL TO COMMISSIONER-ACT OF JULY 13, 1866.

Section 19 of chapter 184 of the act of 1866, declares that no suit shall be brought to recover taxes illegally executed until an appeal has been made to the commissioner, and decided by him, unless (sic) such suit shall be brought within six months after such decision; provided, that if the commissioner delays his decision more than six months, suit may be brought at any time within twelve months from the date of the appeal. Held, that the decision contemplated by the statute, is a decision upon the merits, and not upon the mere formal accuracy of the appeal. 2. SAME-LIMITATION.

Under the said section a person who, upon the neglect of the commissioner to render a decision within six months, fails to bring suit within a year from the date of his appeal, is not thereby precluded from maintaining his action after a decision is actually rendered by the commissioner.

In Error to the Circuit Court of the United States for the Eastern District of Virginia.

Sol. Gen. Phillips, for plaintiff in error.

W. P. Burwell, for defendant in error.

MATTHEWS, J. This action was brought by Hicks, the defendant in error, on August 15, 1879, to recover $3,292.95 for taxes alleged to have been illegally exacted by the intestate as collector of internal revenue on October 31, 1865. The only question now made is that the suit was not brought within the time allowed by law. The plaintiff in his declaration alleged that he appealed to the commissioner of internal revenue to refund the tax illegally collected, and that his appeal was rejected by the commissioner on January 22, 1879. To this declaration the defendant pleaded that the appeal to the commissioner to refund the money exacted, was filed in his office on February 8, 1866, and was rejected on May 7, 1866. To this the plaintiff replied that the appeal referred to in the plea was not duly made, and that it was not rejected on its merits, but because it had not been made and certified on proper forms as required by the treasury regulations; and that afterwards, on January 8, 1868, he made an appeal in due form, which was entertained by the commissioner, and finally decided and rejected on January 22, 1879. The finding of the fact on this issue by the court is as follows: "The issues in fact being tried and determined by the court in this cause, upon a stipulation in writing by the parties through their respective counsel, filed under section 649, Rev. St., the court find the facts as proved under the special plea of the statute of limitations, to be that the suit was brought within six months after the final rejection of the plaintiff's appeal made to the commissioner of internal revenue at Washington, the same having been pending before the commissioner from the time the appeal was perfected on form 46, according to the provisions of law, and the regulations of the secretary of the treasury made in pursuance thereof. It is further found that the delay in the consideration of the appeal by the commissioner, after its perfection on form 56 and the signatures of the proper officers required by law, was occasioned by the loss of the original papers filed with the department by the plaintiff or his attorney, and required by law to be kept there." Judgment was rendered in favor of the plaintiff below, to reverse which, is the object of the present proceeding.

It is alleged as error, in the first place, that the court should have treated the appeal rejected for informality as the basis for determining the time within which the suit ought to have been brought. But that appeal was not so treated by the commissioner, who rejected it for mere informality and entertained the subsequent appeal, made in proper form, as rightly prosecuted. The latter, in our opinion, was the appeal contemplated by the statute.

It is further insisted, however, that treating the appeal of January 8, 1868, as the only one to be considered, the action was barred by lapse of time. Section 19 of the act of 1866, (July 13,) c. 184, (14 St. 152,) is: "that no suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected until appeal shall have been duly made to the commissioner of internal revenue according to the provisions of law in that regard, and the regulations of the secretary of the treasury established in pursuance thereof, and a decision of said commissioner be had thereon, unless such suit shall be brought within six months from the time of said decision, or within six months from the time this act takes effect: provided, that if said decision shall be delayed more than six months from the date of such appeal, then said suit may be brought at any time within twelve months from the date of such appeal." Section 3227, Rev. St., which was first adopted in the act of June 6, 1872, provides that "no suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, shall be maintained in any court unless the same is brought within two years next after the

cause of action accrued; provided, that actions for such claims which accrued prior to June six, eighteen hundred and seventy-two, may be brought within one year from said date; and that where any such claim was pending before the commissioner, as provided in the preceding section, an action thereon may be brought within one year after such decision and not after. But no right of action which was already barred by any statute on said date shall be revived by this section."

It is argued now, by the solicitor-general, that the action was barred by the act of 1866, because not brought within twelve months from the date of the appeal. The terms of that act require, as conditions precedent to the right to bring any such suit, First, an appeal to the commissioner of internal revenue; second, a decision thereon by him; and not then unless it shall be brought within six months after such decision, or within that time after the act takes effect. The proviso is, that if the decision is delayed more than six months from the date of the appeal, the suit may be brought at any time within twelve months from the date of such appeal, that is, although no decision may have in the meantime been made. Such was the construction of similar provisions contained in section 2931 Rev. St., adopted in Arnson v. Murphy, 3 SUP. CT. REP. 184. The plaintiff is not bound to sue until a decision on the appeal has actually been made, but must sue within six months thereafter. If he does not choose to wait for a decision, he may nevertheless bring suit before it is made if it is delayed more than six months from the date of the appeal, provided, however, in that case, he sues within twelve months from the date of the appeal.

In the present case, the plaintiff chose to wait, as he had the right to do, until a decision upon his appeal had been made. It had not been made on June 6, 1872, when the act of that date took effect, being section 3227 Rev. St. The claim, therefore, was pending before the commissioner at that time. It continued to be so until January 22, 1879, when it was decided. By the terms of section 3227, he had one year after that decision within which to bring his suit, which he did.

The judgment of the circuit court was, therefore, right, and is accordingly affirmed.

(110 U. S. 305)

JEFFRIES, Adm'r, etc., v. MUTUAL LIFE INS. CO. OF NEW YORK.1

(February 4, 1884.)

LIFE INSURANCE-REVIEW OF FINDINGS OF FACT-CHAMPERTOUS CONTRACT-COMPROMISE-PARTNERSHIP.

K. died in Missouri, in 1871, having a policy of insurance on his life. J. was ap pointed there his administrator. L. and T., copartners as attorneys at law, brought a suit on the policy, in which, after a long litigation, there was a judgment for the plaintiff for $13,495, in 1877, in a circuit court of the United States. J. had died in 1873, and C. had been appointed administrator in his place, and substituted as plaintiff. The case was brought into this court, by the defendant, by a writ of error. Before it was heard here, L. compromised the judgment with the defendant, in 1879, receiving in full $9,401.42, and entered satisfaction of the judgment on the record. C. then moved the circuit court to vacate the satisfaction, on the grounds that L. had no authority to enter it, and had been notified by C., after the compromise had been made, and before the satisfaction had been entered, that he would not ratify the compromise, and that the compromise was unlawful, because not authorized by the probate court. The circuit court heard the motion on affidavits, and found as a fact, that J., while administrator, entered into a contract with L. and T.,

18. C. 1 Fed. Rep. 450.

whereby they agreed to prosecute the claim for a portion of the proceeds, with full power to compromise it as they should please, and that the claim was a doubtful one, and held that the compromise was rightly made, and that the plaintiff was bound by the contract of J., and denied the motion. On a writ of error by the plaintiff, held:

(1) This court cannot review such finding of fact, there being evidence on both sides, and the error, if any, not being an error of law;

(2) The contract made was not champertous or unlawful, and J. had authority to make it;

(3) The contract having given to L. and T. a power coupled with an interest, the death of J. did not impair the authority to compromise, and C. was bound by it; (4) L., having continued to be a copartner with T., so far as this case was concerned, had authority to make the compromise without the co-operation or consent of T.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

P. W. B. Crews, for plaintiff in error.

S. T. Glover and Jno. R. Shepley, for defendant in error.

BLATCHFORD, J. On the nineteenth of August, 1871, one Allan A. Kennedy died in Franklin county, Missouri, having two policies of insurance on his life, one in the Economical Life Insurance Company, of Providence, Rhode Island, for $5,000, and the other in the Mutual Life Insurance Company of New York, the defendant in error, for $10,000. Charles W. Jeffries was appointed administrator of Kennedy, by the probate court of Franklin county. At that time Joseph S. Laurie and Thomas W. B. Crews were attorneys at law, and copartners as such, in St. Louis, Missouri. The policies were put into their hands for suit, and they brought a suit on each in the name of Jeffries, as plaintiff, in the state court of Missouri. The suits were both of them removed into the circuit court of the United States for the Eastern district of Missouri. In each suit an answer was put in setting up a breach of a warranty by the assured, in that, in the application for the insurance, he stated that he was a single man when he was a married man. In the suit against the Economical company there was a demurrer to the answer, on the ground that the answer failed to allege that the misstatement was material to the risk. The demurrer was overruled by the circuit court and a judgment was entered for the defendant. On a writ of error, this court affirmed the judgment, at October term, 1874. 22 Wall. 47. In the suit against the defendant in error, which is the suit now before us, there was a reply to the answer, alleging that, under the policy, the misstatement was not a breach of a warranty, and that the statement was the representation of the agent of the company, and not that of the assured. In January, 1873, Charles W. Jeffries died, and the plaintiff in error, Cuthbert S. Jeffries, was appointed in his place administrator of Kennedy, and was substituted as plaintiff in this suit in March, 1873. In November, 1873, while the suit against the Economical company was pending in this court, this suit was tried in the circuit court before the court without a jury. That court rendered a judgment for the plaintiff. The defendant brought the case to this court by a writ of error, and at October term, 1875, the judgment was reversed, on the authority of the case in 22 Wall. and a new trial was awarded. In April, 1877, the case was again tried, and before a jury, which found a verdict for the plaintiff, but the circuit court set it aside. The case was tried again before a jury, in October, 1877, and a verdict was rendered for the plaintiff, on which a judgment in his favor was entered October 9, 1877, for $13,495. On the twenty-seventh of October, 1877, the defendant sued out a writ of error returnable to this court at October term, 1878. The case was docketed here, and the appearance of Joseph S. Laurie was entered for the defendant in error, the present plaintiff in error, and that of O. H. Palmer for the plaintiff in error, the present defendant in error. In February, 1879,

Mr. Laurie compromised the judgment with the Mutual company. Interest at 6 per cent. was computed on the judgment from its entry to November 22, 1878, and added, and an abatement of $5,000 was then made, and the remainder, $9,401.42, was paid by the company to Mr. Laurie. He surrendered the policy to the company, a stipulation signed by Mr. Laurie and by Mr. Palmer, agreeing that the suit might be dismissed from the docket of this court without costs to either party as against the other, was presented to this court and filed, and, on the eleventh of March, 1879, an order was made by this court dismissing the writ of error, each party to pay his own costs. On the fifteenth of December, 1879, Mr. Laurie, as attorney for the plaintiff, entered satisfaction of the judgment on the margin of the record of the judg ment, in the law record book in the office of the clerk of the circuit court, in the presence of the deputy clerk, who signed the entry as a witness, the entry being as follows: "I hereby enter satisfaction of this judgment in full, this fifteenth day of December, 1879. C. S. JEFFRIES, administrator, etc., by Joseph S. Laurie, his attorney." The plaintiff immediately filed a motion in the circuit court to vacate the entry of satisfaction, alleging, as grounds therefor, that the entry was made by Laurie without authority from the plaintiff, and in fraud of his rights, and without consulting him, and after Laurie had been notified that the plaintiff would not ratify the said compromise; that the plaintiff had learned only a few days previously of the dismissal of the writ of error in March, 1879, and of the compromise made by Laurie, and had at once notified Laurie and the defendant that the compromise was made without authority from him and he would not ratify it; and that he could not authorize a compromise without the order of the probate court of Franklin county, which order had not been made. The motion was supported and opposed by affidavits, the defendant appearing by counsel. The court, as appears from its opinion, which is set forth in the record, found, as a fact, from the evidence before it, which evidence is before us, that Charles W. Jeffries, while administrator, entered into a contract with Mr. Laurie and Mr. Crews, whereby they agreed to prosecute the claim for a portion of the proceeds, with full power to compromise it as they should please, and that the claim was a doubtful one. On the ground of such express authority and of the doubtfulness of the claim, the court held that the compromise was rightly made, notwithstanding the judgment. It also held that the plaintiff was bound by the contract made by his predecessor. An order was made overruling the motion, and afterwards a motion for a rehearing, founded on further affidavits, was denied. A bill of exceptions setting forth all the papers used on both motions, and containing proper exceptions, was signed. Thereupon the plaintiff has brought the case to this court, on a writ of error. It is contended for the plaintiff in error that the evidence was insufficient to warrant the finding that there was any contract between the first administrator and Mr. Laurie and Mr. Crews, authorizing a compromise; that the first administrator had no authority to make such a contract, or, to make a compromise, without the sanction of the probate court; that the plaintiff was not bound by the contract made by the first administrator; and that Laurie had no authority to compromise without the co-operation of Crews. As to the finding of fact, that there was a contract by the first administrator, giving to the attorneys an interest in the proceeds of the claim, with authority to compromise it, this court is prohibited, by section 1011 of the Revised Statutes, from reversing a case on a writ of error for any error in fact. In this case there was a dispute as to the fact, and evidence on both sides, and it was a fair exercise of the judgment of the court, on the evidence before it, to make the finding of fact it did. Under such circumstances, an erroneous finding of the fact cannot be held to be an error of law. Hyde v. Booraem, 16 Pet. 169, 176; Parks v. Turner, 12 How. 39, 43.

There is nothing to show that the circuit court was not correct in its