This suit was commenced in May, 1879, in a state court of New York by Bernhard Arnson and Ellis Wilzinski against Thomas Murphy, and removed into the circuit court of the United States for the Southern district of New York, to recover moneys paid to the defendant, as collector of the port of New York, between April 25, 1871, and November 30, 1871, as duties on several importations of nitro-benzole. The defendant set up, in his answer, that the moneys received were for lawful duties, and also pleaded the six-year limitation of the New York statute. The suit was tried, resulting in a verdict for the defendant, by direction of the court, followed by a judgment, to review which the plaintiffs sued out a writ of error, which came before this court at October term, 1883, and the decision on which is reported in 109 U.S. 238, and 3 Sup. Ct. Rep. 184. It is there stated, that there had been due protests and appeals to the secretary of the treasury, but that no decision had been rendered by him thereon prior to the commencement of this action, and that it was not brought until after 90 days had elapsed from the date of the latest appeal, and not until after the lapse of more than six years from the expiration of that period. The circuit court having sustained the bar of the New York statute, this court reversed that ruling.
The cause of action arose while section 14 of the act of June 30, 1864, c. 171, (13 St. 214,) now embodied in section 2931 of the Revised Statutes, was in force, providing as follows: 'On the entry of any vessel, or of any goods, wares, or merchandise, the decision of the collector of customs at the port of importation and entry as to the rate and amount of duties to be paid on the tonnage of such vessel, or on such goods, wares, or merchandise, and the dutiable cost and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, master, commander or consignee of such vessel, in the case of duties levied on tonnage, or the owner, importer, consignee, or agent of the merchandise, in the case of duties levied on goods, wares, or merchandise, or the costs and charges thereon, shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond, as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall, within thirty days after the date of such ascertainment and liquidation, appeal therefrom to the secretary of the treasury, whose decision on such appeal shall be final and conclusive; and such vessel, goods, wares, or merchandise, or costs and charges, shall be liable to duty accordingly, any act of congress to the contrary not withstanding, unless suit shall be brought within ninety days after the decision of the secretary of the treasury on such appeal for any duties which shall have been paid before the date of such decision on such vessel, or on such goods, wares, or merchandise, or costs or charges, or within vessel, or on after the payment of duties paid after the decision of the secretary. And no suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the secretary of the treasury shall have been first had on such appeal unless the decision of the secretary shall be delayed more than 90 days from the date of such appeal in case of an entry at any port east of the Rocky Mountains, or more than five months in case of an entry west of those mountains.' Section 2931 was in force when this suit was brought. Section 3011 of the Revised Statutes, as amended by section 1 of the act of February 27, 1877, c. 69, (19 St. 247,) was also in force when this suit was brought, reading as follows: 'Any person who shall have made payment under protest, and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, or any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand any payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.'