delivered the opinion of the court.
This is а claim under the Acts of June 27,1902, c. 1160, § 3, 32 Stat. 406, and of July 27, 1912, c. 256, 37 Stat. 240, to have refunded a tax collected under the Act of June 13, 1898, c. 448, § 29, 30 Stat. 448, 464, 465, upon legacies to the wife and children of the testator Dean Sage. The petition was dismissed by the Court of Claims on demurrer. The testator died domiciled in New York on June 23, 1902, so that the debts of the estate were not ascertained and, as decided in
McCoach
v.
Pratt,
The former judgment is not a bar. It is true that the
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statutes modify, the common-law liability for money wrongfully collected, by duress so far as to require a preliminary appeal to thе Commissioner of Internal Revenue before bringing a suit. Rev. Stats., § 3226. It is true also that it is the duty of the' District Attorney to apрear for . the collector in such suits, Rev. Stats'., § 771; that the judgment is to be paid by the United States and the Collector is exempted from execution if, a certificate is granted by-the Court that there was probable cause for his act, Rev. Stats., § 989; and that there was a permanent appropriation for the refunding of taxеs illegally collected. Rev. Stats., §3689 (17). Ño doubt too, if it appeared in a suit against a collector who had acted .with probable cause and had turned over his money to the United States, that a part of the tax properly was due to 'the United States, unnecessary formalities might be omitted and the sum properly due might be retained. Of course, thé United States in such a case could not require a second payment of that sum.
Crocker
v.
Malley,
The Act of July 27,1912, after providing in § 1 for the presentation of claims for taxes erronеously collected under the above mentioned § 29, as stated in the preceding case of Coleman v. United States, ante, 30, directs rеpayment in § 2 to “such claimants as have presented or shall hereafter so present their claims,” and establish them. The claimants had presented their claim, and so had complied with the letter of the act. But it is said that they filed it simply as a prerequisite to their suit against the Collector and that its effect was extinguished by the judgment in that suit. This argument reads into the words of the statute what is not there and reads what was there out of the claim. The claim was presented to the Commissioner of Internal Revenue to get the money. The suit was only the undеsired alternative in case the Commissioner rejected the claim. It plays no. part in the question that wе now are considering. Suppose that no suit had been brought we can see no ground for denying that the clаim would have been presented within the meaning of the act. It did not have to be a claim under the act as the statute in terms contemplated that it might have been presented before the statute was passеd. But if the presenting was sufficient before the suit was brought it is sufficient now. The statute of course does not confine its act of justice to unrejected claims.
The Act of 1912 applied in terms to “ all claims for the refunding of аny internal tax alleged to have been erroneously or illegally assessed or collected ” under the above mentioned § 29. The only condition was that it should have been presented not later than January 1, 1914. Until thаt time no statute of limitations could begin to run.
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After the act was passed an application was made on September 7, 1916, to the Secretary of the Treasury for repayment of the residue of the erroneously .collected tax. It was rejected on October 30, 1916, on the mistaken ground that the judgment against the Collеctor finished the matter. This suit was brought on January 23, 1917, and so was within the six years allowed by Rev. Stats., § 1069, for suits in the Court of Claims. The Act of 1912, like that of 1902, created rights where they had not existed before,
United States
v.
Hvoslef,
Judgment reversed.