express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in court of law, equity or admiralty, if the United States were suable;" and by section 2 the District and Circuit Courts were given concurrent jurisdiction to a certain amount.

The first section evidently contemplates four distinct classes of cases: (1) those founded upon the Constitution or any law of Congress, with an exception of pension cases; (2) cases founded upon a regulation of an Executive Department; (3) cases of contract, express or implied, with the government; (4) actions for damages, liquidated or unliquidated, in cases not sounding in tort. The words "not sounding in tort" are in terms referable only to the fourth class of cases.

The exception to the jurisdiction is based upon two grounds: First, that the court has no jurisdiction of cases arising under the revenue laws; and, second, that it has no jurisdiction in actions for tort.

In support of the first proposition we are cited to the case of Nichols v. United States, 7 Wall. 122, in which it was broadly stated that "cases arising under the revenue laws are not within the jurisdiction of the Court of Claims."

By the Customs Administrative Act of 1890, as we have just held in De Lima v. Bidwell, an appeal is given from the decision of the collector "as to the rate and amount of duties chargable upon imported merchandise," to a board of general appraisers, whose decision shall be final and conclusive 'as to the construction of the law and the facts respecting the classification of such merchandize and the rate of duties imposed thereon under such classification," unless application be made for a review to the Circuit Court of the United States. This remedy is doubtless exclusive as applied to customs cases; but, as we then held, it has no application to actions against the collector for duties exacted upon goods which were not imported at all. Such cases, although arising under the revenue laws, are not within the purview of the Customs Administrative Act; as for such cases there is still a common law right of action against the collector, and we think also by application to the Court of Claims. There would seem to be no doubt about plaintiff's remedy against the collector at San Juan.

In the Nichols case, it was held that, as there was a remedy of action against the collector, expressly provided by statute, that remedy was exclusive. In De Lima v. Bidwell we held that although no other remedy was given expressly by statute than that provided by the Customs Administrative act, there was still a common law remedy against the collector for duties exacted upon goods not imported at all; but it does not therefore follow that this remedy is exclusive; and that the importer may not avail himself of his right of action in the Court of Claims.

But conceding that the Nichols case does not stand in the way of a suit in the Court of Claims, the government takes the position that a suit in the United States to recover back duties illegally exacted by a collector of customs is really an action "sounding in tort," though not an action "for damages, liquidated or unliquidated," within the fourth class of cases enumerated in the Tucker act.

There are a number of authorities in this court upon that subject which require examination. The question, is, whether any claim sounding in tort can be prosecuted in the Court of Claims, notwithstanding the words "not sounding in tort," in the Tucker act, are apparently limited to claims for damages, liquidated or unliquidated. The question was first considered in Langford v. United States, 101 U. S. 341, under the statute above cited, giving the court of Claims power to hear and determine "all claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the government of the United States." The suit was brought to recover for the use and occupation of certain lands and buildings of which possession had been forcibly taken by agents of the government, against the will of Langford, who claimed title to the lands. It was held that the act of the United States in taking and holding possession was an unequivocal tort, and a distinction was drawn between such a case and one where the government takes for public use lands to which it asserts no claim of title, but admits the ownership to be private or individual, in which class there arises an implied obligation to pay the owner its just value. "It is a very different matter where the government claims it is dealing with its own, and recognizes no title superior to its own. In such case the government, or the officers who seize such property, are guilty of a tort, if it be in fact private property." It was held that the limitation of the act to cases of contract, express or implied, "was established in

reference to the distinction between actions arising out of contracts, as distinguished between those founded on torts, which is inherent in the essential nature of judicial remedies under all systems, and especially under the system of the common law."

In the cases under consideration the argument is made that the money was tortiously exacted; that the alternative of payment to the collector was a seizure and sale of the merchandise for the non-payment of duties; and it mattered not that at common law an action for money had and received would have lain against the collector to recover them back. But whether the exactions of these duties were tortious or not; whether it was within the power of the importer to waive the tort and bring suit in the Court of Claims for money had and received, as upon an implied contract of the United States to refund the money in case it was illegally exacted, we think the case is one within the first class of cases specified in the Tucker act of claims founded upon a law of Congress, namely, a revenue law, in respect to which class of cases the jurisdiction of the Court of Claims, under the Tucker act, has been repeatedly sustained.

Thus, in United States v. Kaufman, 96 U. S. 567, a brewer who had been illegally assessed for a special tax upon his business, was held entitled to bring suit in the Court of Claims to recover back the amount, on the ground that no special remedy had been provided for the enforcement of the payment, and consequently the general laws which govern the Court of Claims, may be resorted to for relief, if any can be found applicable to such a case. This is upon the principle that a liability created by statute without a remedy may be enforced by a common-law action. The Nichols case was distinguished upon the ground that the statute there had provided a special remedy.

So, too, in United States v. Savings Bank, 104 U. S. 728, the Court of Claims was held to have jurisdiction of a suit to recover back certain taxes and penalties assessed upon a savings bank.

In Campbell v. United States, 107 U. S. 407, it was held that a party claiming to be entitled to a drawback of duties upon manufactured articles exported might, when payment thereof has been refused, maintain a suit in the Court of Claims, because the facts found raised an implied contract that the United States would refund to the importer the amount he had paid to the government. There was here no question of tort.

In United States v. Great Falls Manufacturing Co.. 112 U.

S. 645, it was held, following the observations of Mr. Justice Miller, in Langford v. United States, that where property to which the United States asserts no title is taken by their officers or agents, pursuant to an act of Congress, as private property for public use, there was an implied obligation to compensate the owner, which might be enforced by suit in the Court of Claims. So, too, in Hollister v. Benedict & Burnham Mfg. Co., 113 U. S. 59, it was held that a suit might be maintained in the Court of Claims to recover the use of a patented invention, if the right of the patentee were acknowledged. To the same effect are United States v. Palmer, 128 U. S. 262, and United States v. Berden Fire-Arms Co., 156 U. S. 552.

In Medbury v. United States, 173 U. S. 492, it was held the Court of Claims had jurisdiction of an action to recover an excess of payment for lands within the limits of a railroad grant, which grant was, subsequent to the payment, forfeited by an act of Congress for non-construction of the road.

In Swift v. United States, 111 U. S. 22, the same right was created as existing in favor of a party who sued for a commission upon the amount of certain adhesive stamps, which he had at the time purchased for his own use from the Bureau of Internal Revenue. See also United States v. Lawson, 101 U. S. 164; Mosby v. United States, 133 U. S. 273.

The judgment of the circuit court is therefore reversed and the case remanded to that court for further proceedings in consonance with this opinion.

LEWIS V. STATE OF NEW YORK.

Court of Appeals of New York. May 6, 1884.

96 N. Y. 71.

Appeal from a decision of the Board of Claims, rendered October 10, 1883, dismissing a claim preferred by the appellant against the State on the ground that the facts stated in the petition did not constitute a cause of action.

DANFORTH, J. The claimant in March, 1879, was convicted of the crime of burglary and sentenced to the state prison.

The claimant was set at work in the hollow-ware department, and while engaged in carrying molten iron in a ladle discovered a crack in the shank which connected the bowl with the handle. He called the overseer's attention to this defect, but no attention was paid to his complaint, and when next used by him the bowl separated from the shank, and the melted iron coming in contact with water on the floor exploded with such effect as to cause him serious injury. In January, 1882, he was discharged. In October, 1882, he presented to the Board of Audit a claim against the State for damages so incurred, and this claim was by force of the statute (Laws of 1883, chap. 205, S. 12) transferred to the Board of Claims, where it was dismissed, on the ground that the facts were not sufficient to constitute a cause of action against the State. From this decision an appeal is taken to this court.

It is now contended by the learned counsel for the appellant that the act of the overseer in compelling the claimant to use the defective ladle, after having been notified of its unsafe condition, was an act of the State and of gross and inexcusable negligence. It is apparent that even if this is so the claimant must fail unless the doctrine of respondent superior can be applied to the State, and the State made liable for the negligence or misfeasance of its agents, in like manner as a natural person is responsible for the acts of his servants. We are aware of no principle of law, nor of any adjudged case which makes that application, except when the State, by its legislature, has voluntarily assumed it. The contrary of this is well settled upon grounds of public policy, and the doctrine is so uniformly asserted by writers of approved authority and the courts that fresh discussion would be superfluous. Story on Agency, S. 319, 7th ed. Indeed the principle upon which the doctrine is founded-that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it, excludes such a case as we have before us. The claimant was not a voluntary servant for hire and reward, nor was the State his master in any ordinary sense. He was compelled to labor as a means of reformation, and to endure imprisonment as a punishment and for the protection of the community. While employed he was subject to such regulations as the keeper charged with his custody might, from time to time, prescribe, and if in the course of service he sustained injury, it must be attributed to the cause which placed him in confinement. He acquires thereby no claim against the State, nor do the statutes referred to by his learned