No fact arises in this case, and the question which presents itself is one entirely of law. From the large amount involved, and from the precedent that may be established when it is determined, it is one of great importance. It is very clear that the equity of the case is with the plaintiff, for the agreed case which has been presented to the court shows, beyond a doubt, that he is entitled to recover, unless barred by the statute of limitations. It admits, therefore, that he has paid to the government an amount of money, which has been illegally exacted from him, and that in equity he is entitled to recover; but the government claims that he is barred from such recovery by the statute of limitations. From the case it appears that he brought suit, and obtained a verdict, and that, according to the practice that then existed in this court (after verdict had been rendered for the plaintiff), the matter was referred to the officials at the customhouse, for the purpose of enabling them to make up their adjustment of the amount of damages. This was done, and they made up the amount without giving any notice in regard to it to the plaintiff or the plaintiff’s counsel. They sent a certificate to the clerk that the amount found to be due to the plaintiff was nearly. $0,000; judgment was entered in pursuance of that certificate, and the plaintiff was paid that amount. Subsequently it was ascertained that various items had been omitted in that adjustment, for which the plaintiff was undoubtedly entitled to recover, unless barred by the statute of limitations.
Now, in such a case as the one now presented to me, if I could see any way consistent with my duty, and with the well-settled principles of law which have been laid down for my guidance, that would enable *867me to get over this bar by the statute of limitations, I would cheerfully do it, and at once direct a verdict to be rendered in favor of the plaintiff. I confess, however, that I cannot' see how this can be accomplished. (I will consider the case further, and should I arrive at a different conclusion, the verdict' •shall be reversed.) It is claimed that various instructions were received from the treasury department to collectors at New Y'ork, Boston, and elsewhere, which amount to a new promise in law. From 1863 down to the present time, a-judgment against the collector cannot be enforced against him so far as it bound his property, and it can only be satisfied out of the treasury department, under the directions of the secretary of the treasury. The last promise was in 185S, which is relied upon. At. that time Mr. Maxwell had been out of office a number of years. Mr. Guthrie issued the first letter in 1856, and Mr. Cobb issued another in 185S, referring to that of 1856. In 1858 an execution would have been issued against the property of Mr. Maxwell.
[NOTE. Judgment was subsequently ren-' dered on the verdict in favor of defendant, and a motion made to open the judgment was grant- ■ cd. the judgment vacated, and a new order of •reference made to assess the damages. See Case No. 3,415.]Now it is claimed that although the promise! when it was made, was not the promise ■of the defendant, Maxwell, it did not come within the statute of the New York Code, as far as this, question was concerned, and because congress changed the liability of the collectors, that changes the contract. The court is in this case asked to give this new promise a construction which the law does not warrant, and by it to remove a bar which it did not remove at the time it was made. Now that bar was removed by that promise in 1S5S, if it were ever removed. Consequently I can see no other way at the present time, after a careful consideration of this matter, and with a desire to avoid this bar if I can, than to direct a verdict for the defendant, subject to the opinion of the •court.
The defendant, therefore, will take a ver-dict subject to the opinion of the court. Should the court, after further consideration, see any mode by which this bar can be removed, the verdict will be changed in favor •of the plaintiff, with an order of reference.
Verdict for defendant, subject to the opin- ■ ion of the court. •,