Suppose that is so; still it is insisted by the complainants that they were wrongfully induced by the public authorities to delay the enforcement of their legal claims until their respective causes of action became barred by the Statute of Limitations; and attempt is made in argument to support that proposition by each and every of the grounds specifically set forth in the bill of complaint.

1. That the circuit courts in two instances decided and adjudged that the exaction of such duties was illegal, and that the Secretary of the Treasury repaid the same in accordance with the judgments.

of Limitations at the time hereafter mentioned | ly and specifically the grounds of objection to was about to take effect as a bar to the causes the required payment. 5 Stat. at L., 727. of action embraced in the said several suits. 3. That an officer in the custom-house where the goods were entered stated to the attorney of the importers that, by the rules and practice of the Treasury Department, the presentation of their respective claims to the auditor or to the refund clerk of the custom-house would prevent the running of the Statute of Limitations; and that the statute, if the claims were so presented, could not and would not be interposed as a defense, in case suits should subsequently be commenced to recover back such excess of duties. 4. That the respondent, as such collector, though he disclaimed any control in the matter, declared his confidence in the knowledge and experience of the officer who made that statement, and expressed to the said attorney his concurrence in the said opinion and statement. 5. That the complainants did present their respective claims to the auditor or refund clerk of the custom-house, as suggested, and that re lying upon the prior action of the Secretary of the Treasury in recognizing claims of a like nature, and upon the said statements and opinion of the officer of the custom-house, and the concurrence of the respondent therein, they respectively refrained from bringing actions to recover back such excess of duties so illegally exacted until the Statute of Limitations had run against all of their claims.

Preliminary to those allegations in the bill of complaint, it is also alleged that actions of a like kind to recover back such illegal exactions were previously commenced and prosecuted in two other districts, in which it was decided and adjudged that the charges for transportation and commissions on the same were illegal, and that the Secretary of the Treasury paid back the excess in those cases; and they also allege that orders were issued by that officer to the respondent and to his successor in office to prepare statements showing the amount of such excess, and to transmit the same to the department for consideration.

Due appearance was entered by the respondent, and he demurred to the bill of complaint. Certain interlocutory proceedings followed, which it is not important to notice in this investigation. Suffice it to say, in this connection, that the parties having been fully heard, the court entered a decree dismissing the bill of complaint, and the complainants appealed to this court. Since the appeal was entered here, the complainants assign for error the ruling of the circuit judge sustaining the demurrers of the respondent, and the decree of the court dismissing the bill of complaint.

2. That the Secretary of the Treasury submitted to the rule established in those cases, and was willing to apply it to the claims of the importers in these cases, when the claims were duly adjusted and presented in the manner required by the regulations of the department.

3. That the Secretary of the Treasury issued an order to the collector to ascertain the amount of such excess of duty, and to transmit the account when prepared to the department, together with a statement of the excess charged for commissions on the same importations.

4. Orders, it is also alleged, were adopted by the Treasury Department which show that the importers in such cases were entitled to the excess of duties illegally exacted as soon as the importers could furnish to the auditor or refund clerk detailed statements of the previous importations, and the names of the vessels in which they were made, and the dates of their arrival in the port, such statements being required in order to enable the auditor of the custom-house or refund clerk to prepare certified copies of the same to be forwarded to the department, pursuant to the instructions of the Secretary of the Treasury.

Labor, care and attention were required to comply with that requirement; and the complainants allege that whatever devolved upon them in the matter was seasonably accomplished, but they admit that the certified statements to be forwarded to the department were not completed by the auditor or refund clerk when the respondent, as collector, went out of office.

Culpable remissness of duty is not charged upon the auditor or refund clerk, during the period while the collector who liquidated the duties remained in office as collector of the port. Nothing of the kind is alleged, but the charge is that his successor refused to allow the process of adjusting the claims of the complainants to be continued; that they complained of the delay and the refusal of the successor, and that the Secretary of the Treasury issued an order to the new collector requesting that the instructions upon the subject given to his predecessor should be complied with at his earliest convenience; and it is alleged that such an order was given, as shown by the exhibit annexed to the bill of complaint, but it is admitted that the claims of the complainants were never reported in pursuance of the orders of the Secretary of the Treasury.

Discussion to show that the several importers had a good cause of action, irrespective of the Statute of Limitations, is unnecessary, as that proposition is admitted by the demurrer; but it is equally clear that that admission, without more, will not avail the complainants in the present controversy, as it is obvious that they had a plain, adequate and complete remedy at law. Excessive customs duties illegally exacted may be recovered back in an action of assumpsit for money had and received, if due protest in writ- Considerable progress was made in preparing ing is made by the party aggrieved, at or before the necessary statements; and the complainants the payment of the duties, setting forth distinct- | allege that it was during that period that their

attorney suggested to the auditor of the custom- | tions, it is clear that the several claims of the house that the claims would soon be barred by complainants were never prepared and prethe Statute of Limitations, and made inquiry sented, as required, to the Secretary of the of him whether it would not be necessary to Treasury for adjustment and allowance; but commence suits to prevent the bar from attach the complainants allege that they were induced ing, to which the auditor replied, that instruc- to delay such preparation and presentation by tions having been given by the department to the recited official representations and others of refund the money, it was not the fault of the like import, and they pray for an injunction redepartment that it had not been done; that all straining the respondent from setting up the the complainants had to do to prevent the Stat- bar of the Statute of Limitations in defense of ute of Limitations from running was to present the several actions to recover back the moneys their claims to the refund clerk for adjustment, which the respondent, as collector, illegally exas required by the rules and practice of the acted of them as such importers. Treasury Department.

directions from the proper source, it is clear that | partment the Statute of Limitations would cease the suit is in the nature of a suit against the to run when their claims were properly preUnited States, and it may be that the suit, if the pared and presented for adjudication and alcertificate of probable cause is finally given, may lowance. be regarded in the same light; but more difficulty would attend the solution of the question in a case where neither of those conditions occur, especially if it appears that the suit was not commenced until after the collector went out of office. Actions of the kind must be commenced against the collector who made the illegal exaction, and no one pretends that such an action can proceed against the successor after the incumbent goes out of office.

Importers, in case they prevail, are in any view entitled to be paid the amount which they recover; nor is it important in this case to determine whether the pending actions are in the nature of suits against the United States, or merely suits against the collector, as in either view the result must be the same. Argument to show that the actions in form are actions against the present respondent is unnecessary, as that is conceded, but there is much reason to suppose that the collector acted under official orders.

Taken in the most favorable view for the complainants, it is clear that it is impossible to regard those remarks as a contract or promise made by either party. There was no promise to forbear instituting the suits, nor was there any promise, if forbearance was accorded, that the statute should cease to run. Every pretense of that sort is negatived by the language employed, which even fails to show that any negotiation took place between the parties looking to any such arrangement, contract or promise. When they separated, each party was as free to pursue his own course as when the interview commenced. Complainants might have brought suits the same day; and if they had, the respondent would have been at liberty to make any defense in his power, irrespective of anything which had transpired at the interview.

less the claims were duly prepared and presented for adjustment in proper time.

Nor is there anything shown in the remarks attributed to the Secretary of the Treasury which can be held to support the theory of the complainants that he entered into any contract Concede that the United States is the real with their attorney, or ever made any promise party; still the court is of the opinion that there that the Statute of Limitations should cease to is nothing in the remarks attributed to the au- run. All he did was to answer the questions ditor of the custom-house or to the refund clerk propounded as to the practice of the departor to the Secretary of the Treasury which can ment; but he gave no assurance that any indulbe held to preclude the respondent from plead-gence would be granted to the complainants, uning any proper plea to the actions which he may think necessary in making his defense. When the suits against the collector were commenced to recover back the money which the complain ants allege he exacted from them illegally, he was a private citizen, and nothing is shown in pleading to justify the conclusion that the Secretary of the Treasury or the customs officers made any remarks which can create any liability as against the respondent which he did not inNor is there anything in the remarks of that officer, made to the attorney of the complainants, which will support the theory that he ever intended to deprive the respondent, as the defendant in these actions, of the right to plead any plea he, the respondent, might see fit in defense of the claims therein prosecuted.

cur.

Congress, undoubtedly, might authorize actions of the kind to be brought directly against the United States; but all must concede that such a power has never been exercised and is not conferred, and in the absence of such legislation the court is of the opinion that such actions may in certain aspects be treated as actions against the collector, unless it appears that he acted under the directions of the proper official authority, or that a case is made where no execution can issue against the collector.

Examined in the light of these suggestions, as the case should be, it is obvious that the complainants have no just cause of complaint, as they have not in fact been deceived or misled.

Grant that, and still the complainants contend that it had the effect to conceal from them the necessity of instituting suits to prevent their claims from being barred by the lapse of time, and they contend that the same rule should be applied in the case as when the defendant fraudulently conceals from the plaintiff his cause of action; and decided cases are referred to where it is held that in such controversies the statute does not begin to run until the fraud is discov

ered.

Except where the Constitution, treaties or statutes of the United States otherwise require, the Judiciary Act provides that the laws of the several States shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. 1 Stat. at L., 92; R. S., sec. 721.

Repeated decisions of this court decide that the court is bound to conform to the decisions of the state courts in the construction of their Statutes of Limitation. Green v. Neal,6 Pet., 291; Harpending v. Dutch Ch., 16 Pet., 455; Porter

Even suppose it were otherwise, still it is clear that none of the remarks attributed to the Sec-field v. Clark, 2 How., 125. retary of the Treasury or to the officers of the customs can have any effect to estop the respondent from pleading any matter in defense of the actions which he may think necessary to protect his rights. Rightly interpreted, all that the respondent said to the attorney of the complainants had reference to the future action of the Secretary of the Treasury; that is, he expressed the opinion that the complainants could rely upon the statements of the auditor as correct, that according to the practice of the de

State statutes in many cases provide that, where the action proceeds upon the ground of fraud, the lapse of time is to be computed from its discovery; but the courts of New York, as well as several other States, have always held that the concealment of the cause of action ez contractu does not interrupt or delay the_running of the statute as a bar to the action. Troup v. Smith, 20 Johns., 44.

Assumpsit was brought in that case to recover damages, for that the testator, in his lifetime,

Courts of equity, says Bronson, may grant

undertook to survey a certain township of land, | Limitations, says Nelson, Ch. J., that the cause and to divide the same into convenient lots, to of action was fraudulently concealed by the deenable the plaintiff to sell the same to the best fendant until after the statute had attached, and advantage; and the charge was, that he per- that the suit was brought within the time limformed the work so unfaithfully and unskill-ited by the statute after the discovery of the fully, that it caused great damage to his em- right to sue. Allen v. Mille, 17 Wend., 204; ployer, to which was added the money counts. Leonard v. Pitney, 5 Wend., 30. Due appearance was entered by the executors of the deceased, and they pleaded non assump-relief against acts and contracts executed under sit and the Statute of Limitations. Issue was joined upon the first plea, and to the second the plaintiff replied that the cause of action was not discovered until within less than six years before the action was commenced. More than six years had elapsed after the fraud was committed, but it was not discovered until two or more years later; and the defendant demurred to the replication, insisting that the statute commenced to run from the time the fraud was committed, and the question of the sufficiency of the replication was argued by eminent counsel.

mistake or in ignorance of material facts; but it is otherwise where a party wishes to avoid his act or deed on the ground that he was ignorant of the law. Ignorantia juris non excusat. Champlin v. Laytin, 18 Wend., 407; Storrs v. Barker, 6 Johns. Ch., 166.

It is not a sufficient answer to the Statute of Limitations, says Phelps, in an action on the case for deceit, that the plaintiff was ignorant of his cause of action until within six years, although that ignorance was occasioned by the nature of the deceit or the manner in which the fraud was perpetrated. Smith v. Bishop, 9 Vt., 110; Fee v. Fee, 10 Ohio, 469; Clarke v. Reeder, 1 Speers (S. C.), 407.

Plaintiff's counsel, in endeavoring to support the replication, contended that the cause of action did not accrue until the plaintiff discovered the fraud in making the survey; and in respond-authorities are sufficient to show what the esing to that proposition, Spencer, Ch. J., who delivered the opinion of the court, remarked that the inquiry, is: when did the plaintiff's cause of action accrue? and he immediately answered the inquiry as follows: "Most certainly, when the fraud was consummated;" which was, as the whole court held, when the testator had completed the survey, as far as it was completed, and made the return of his field-notes and received his compensation, adding that the injury, as far as he was concerned, was then done, and that he then became liable to an action for the fraudulent and imperfect manner of executing the duties he had assumed.

Speaking to the same point, the learned Chief Justice also remarked, that the fact that the plaintiff did not discover the imposition practiced is a matter entirely distinct from the existence of the fraud and imposition. If, then, the plaintiff's cause of action accrued from the consummation of the fraud by the testator, and not at the time the plaintiff discovered it, the stat ute interposes as a protection, unless the action is commenced within six years next after the wrong was perpetrated.

Without more, it must be conceded that these tablished rule in the States mentioned is, where the suit is an action at law, and that the fraudulent concealment by the defendant of the plaintiff's cause of action is not a good answer to the plea of the Statute of Limitations. Other States adopt the opposite rule, and their courts hold that the rule at law is the same as in equity. Hovenden v. Annesley, 2 Sch. & L., 607; Coster v. Murray, 5 Johns. Ch., 522; Michoud v. Girod, 4 IIow., 503; Hallett v. Collins, 10 How., 187; Sherwood v. Sutton, 5 Mas., 149; Jones v. Conoway, 4 Yeates, 109; McDowell v. Young. 12 Serg. & R., 128; Ang. Lim., 6th ed., secs. 189 to 190 inclusive.

But it is not necessary to rest the case entirely upon the state rule of decision, as it is clear that the matters alleged in the bill of complaint are not sufficient to support any such theory, nor is that the true theory of the claim made by the complainants. On the contrary, they allege that they had a legal and just claim to recover back certain import duties illegally exacted by the respondent; and the necessary implication from the allegation is that they knew the legality of the claims as well when they filed their protests as when, seven years later, they instituted the pending actions against the respondent.

representation to refrain from bringing their actions until the bar of the Statute of Limitations had attached, which, in the judgment of the court, the matters set forth in the bill of complaint are not sufficient to show.

Some countenance, he admits, is given to the opposite theory by certain decided cases, to which he refers, and then he proceeds to say: Fraudulent concealment of the cause of action "We cannot, however, yield the convictions of is not alieged, nor is it the gravamen of the comour own minds to decisions evidently borrowed plaint. No such charge is made; but the comfrom the courts of equity, and which have nev-plaint is that they were induced by the aforesaid er been sanctioned by the courts of law in the country from which our jurisprudence is derived." He admits that the rule is otherwise in courts of equity; but the court decided that courts of law are expressly bound by the stat ute, giving as a reason for the conclusion, that it relates to specified actions, and that it declares that such actions shall be commenced and sued within six years next after such actions accrued, and not after. Maxwell, Statutes, 6; Imper. Gas-L. and Coke Co. v. London Gas-L. Co., 10 Exch.,39. Thus not only affirmatively declar ing within what time these actions are to be brought, but inhibiting their being brought after that period.

It is no answer to a plea of the Statute of

Give the allegations the broadest signification the language employed will justify, and it is clear that the conversations attributed to the Secretary of the Treasury and the officers of the custom-house do not amount to a contract or promise that the Statute of Limitations should cease to run in any contingency, whether the complainants did or did not cause their claims to be prepared and presented to the Treasury Department for adjustment and allowance. They never did prepare and present their

of such separation by a description in the grant which would enable a surveyor to ascertain and identify the lands by the boundaries found in that instrument, or in an order of survey or investiture of possession.

claims to the Secretary of the Treasury for allowance, as required by the alleged rules of the department, nor do the conversations alleged amount to a promise that the statute should cease to run even if they had complied with the sup-had not, by himself or those in privity of title, been 4. No person could bring suit under that Act, who posed rules and practice of the department. out of possession over twenty years. Conversations of the kind cannot benefit the 5. The statute thus intended to provide a suit in complainants, for several reasons: 1. Because the nature of an action of ejectment, in which the United States should be defendant, whether out of they do not amount to a promise that the Stat-possession or in possession, with the bar of the ute of Limitations should cease to run; and if Statute of Limitations removed. they did, they cannot avail the complainants as a new promise, because they are not in writing. 2. They do not amount to a contract to that effect; and if they do, they are without consideration. 3. They cannot have the effect to estop the respondent from pleading the bar of the Statute, because both parties were equal. ly well informed of all the facts. Shapley v. Abbott, 42 N. Y., 443; Pickard v. Sears, 6 Ad. & Ell., 474; Freeman v. Cooke, 2 Exch., 654; Foster v. Dawber, 6 Exch., 839; Edwards v. Chapman, 1 Mees. & W., 231; Swain v. Seamens, 9 Wall., 274 [76 U. S., XIX., 560].

Tested by these considerations, it follows that there is no error in the record. S. C., 12 Blatchf., 419.

Decree affirmed.

Mr. Justice Miller:

I dissent from the judgment in this case, because I believe that the acts and promises of the officers of the Government, alleged in the bill, are such as to work an estoppel in equity to the plea of the Statute of Limitations in this case; and that the facts establishing this estoppel are too complex, and their relation to the defendant such that the issue cannot be well tried on a replication to the plea.

cation of the claim under the grant in this case for 6. There has never been any actual survey or loover seven millions of acres of land. Nor does the claimant here present any actual survey or ask for an order for one to see if it can be made under the description in the grant made in 1793.

7. An inspection of the maps presented by complainant, copied from the surveys which the United States have for the purpose of sale extended over the region to which the grant refers, shows that the calls for the boundary of the grant are impossible calls. That the royal surveyor was not on the ground, and was mistaken as to the locality of the natural objects on which he relied for description, and that no surveyor can by the calls of the grant locate or identify the land intended to be given. 8. The suit was not, therefore, authorized by the Act of 1860, and the District Court properly dismissed the petition. [No. 654.]

Submitted Dec. 16, 1878. Decided Jan. 13, 1879.

APPEAL from the District Court of the Unit

souri.

ed States for the Western District of Mis

The case is fully stated by the court.
Messrs. Wm. H. Duryea and J. Warren
Greene, for appellants.

Mr. Edwin B. Smith, Asst. Atty-Gen., for appellee.

Mr. Justice Miller delivered the opinion of the court:

This is an appeal from the decree of the DisMr. Justice Field concurs with me in this trict Court for the Western District of Missouri, dissent.

BENJAMIN H. SCULL ET AL., Appts.,

v.

UNITED STATES.

(See S. C., 8 Otto, 410-424.)

Private land claims-Mexican and Spanish claims-action for limitations—survey—impossible calls for boundary.

*1. The Act of January 22, 1860, concerning private land claims in Florida, Louisiana and Missouri, provided for presenting all such claims before the register and recorder of the respective land-offices in which the land lay, and the Recorder of Land Titles in Missouri; and for a report on these claims to the Commissioner of the General Land-Office and through him to Congress. In all such cases Congress reserved the right to confirm or reject the 2. But the 11th section of the Act authorized the claimants in a defined and much more limited class of cases to sue by petition in the District Court of the United States within whose jurisdiction the

claim.

dismissing plaintiff's bill. The suit was brought under the Act entitled "An Act for the Final Adjustment of Private Land Claims in the States of Florida, Louisiana and Missouri, and for Other Purposes, " approved January 22, 1860. 12 Stat. at L., 85.

The claim in this case is founded on three instruments of writing:

1. An order of June 11, 1793, signed by Louisiana, for a survey of land in favor of Don Baron de Carondelet, Spanish Governor of Joseph Valliere.

2. A certificate of survey by Charles Trudeau, Surveyor-General, dated October 24,1793. 3. A cession or grant by Carondelet, dated December 22, 1793.

The history of the relation of the Government of the United States to the claims for lands asserted under rights derived from the Spanish and French Governments, prior to the cessions of Louisiana and Florida to our Government, as it is found in the Treaties, the Acts of Congress and the judicial decisions of the American tribunals, is given very fully and with accuracy in the opinion of this court in the case of U. S. 3. The title on which such a suit could be sus-v. Lynde, 11 Wall., 632 [78 U. S., XX., 230], tained was one which had been perfected under the Spanish or French Government before the cession to the United States and separated from the mass of the public domain by actual survey, or capable *Head notes by Mr. Justice MILLER.

land lay.

and will be referred to now without repeating it. The necessity and the policy of the Act of 1860, 12 Stat. at L., 85, are there fully consid ered. It declares that the Registers and Receivers of the public Land-Offices in Florida and NOTE.-Missouri private land claims. See note to the Recorder of Land Titles for the State of Louisiana, within their respective districts, and Les Bois v. Bramell, 45 U. S. (4 How.), 449.