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land reserved from sale by law, such patent is void for want of authority. But one officer of the land office is not competent to cancel or annul the act of his predecessor. That is a judicial act, and requires the judgment of a court." "

In Wisconsin Central Railroad Co. v. Forsythe, which was an action of ejectment to recover certain lands claimed to have been included within its grant, but which defendant insisted were outside of its grant and subject to private entry, this court said: "But further, it is urged that this question of title has been determined in the land department adversely to the claim of the plaintiff. This is doubtless true, but it was so determined, not upon any question of fact, but upon the construction of the law; and such matter, as we have repeatedly held, is not concluded by the decision of the land department." As a general rule, and on grounds of public policy, the government cannot be bound by the action of its officers, who must be held to the performance of their duties within the strict limits of their legal authority, where by misconstruction of the law under which they have assumed to act, unauthorized payments are made. Whiteside v. United States, 93 U. S. 247; Hawkins v. United States, 96 U. S. 689, and cases before cited. The question is not presented as between the government and its officer, or between the officer and the recipient. of such payments, but as between the government and the recipient, and is then a question whether the latter can be allowed to retain the fruits of actions not authorized by law, resulting from an erroneous conclusion by the agent of the government as to the legal effect of the particular statutory law under or in reference to which he is proceeding.

Section 4057 of the Revised Statutes reads: "In all cases where money has been paid out of the funds of the Post Office Department under the pretence that service had been performed therefor, when, in fact, such service has not been performed, or as additional allowance for increased service actually rendered, when the additional allowance exceeds the sum which, according to law, might rightfully have been allowed therefor, and in all other cases where money of the department has been paid to any person in consequence of fraudulent representa

Opinion of the Court.

tions, or by the mistake, collusion or misconduct of any officer or other employé in the postal service, the Postmaster General shall cause suit to be brought to recover such wrong or fraudulent payment or excess, with interest thereon."

Undoubtedly the word "mistake," as used in this section, includes an erroneous conclusion in the construction or application of a statute. And, this being so, as the duty is devolved on the Postmaster General to cause suit to be brought where money has been illegally paid by reason of misconstruction or misapprehension of the applicable law, it follows that he must be regarded as empowered to reconsider prior decisions to determine whether such a mistake has been committed or not. If in his judgment money has been paid without authority of law and he has money of the same claimant in his hands, he is not compelled to pay such money over and sue to recover the illegal payments, but may hold it subject to the decision. of the court when the claimant sues. United States v. Carr, 132 U. S. 644; Gratiot v. United States, 15 Pet. 336; Steele v. United States, United States v. Burchard, United States v. Stahl, supra. And in that way multiplicity of suits and circuity of action are avoided.

It is unnecessary to go into a discussion of the exceptions which may exist between private parties to the rule that moneys paid through mistake of law cannot be recovered back.

This branch of the case was disposed of by the Court of Claims on the authority of Duval v. United States, 25 C. Cl. 46. It was there held that "the items of the several statements upon which the Sixth Auditor certifies balances due for carrying the mails ordinarily, and in the absence of special circumstances, may be regarded as running accounts, at least while the parties continue the same dealings between themselves; and that money paid in violation of law upon balances certified by the accounting officers generally may be recovered back by counterclaim or otherwise where no peculiar circumstances appear to make such recovery inequitable and unjust." The mistake was, indeed, treated as one of fact, the Post Office officials erroneously assuming through oversight that the

Opinion of the Court.

road in question had not been aided by grants of land, but the governing principle in the case before us is the same.

Reference was made to Barnes v. District of Columbia, 22 C. Cl. 366, 394, wherein it was ruled, Richardson, C. J., delivering the opinion, that "The doctrine that money paid can be recovered back when paid in mistake of fact and not of law does not have so general application to public officers using the funds of the people as to individuals dealing with their own money where nobody but themselves suffer for their ignorance, carelessness, or indiscretion, because in the former case the elements of agency and the authority and duty of officers, and their obligations to the public, of which all persons dealing with them are bound to take notice, are always involved." We concur in these views, and are of opinion that there is nothing on this record to take the case out of the scope of the principle that parties receiving moneys illegally paid by a public officer are liable ex æquo et bono to refund them.

The petition sets forth, among other things, that the Postmaster General wrongfully and unlawfully withheld the $12,532.43 out of moneys due petitioner, which was, therefore, entitled to recover the full amount; and to each and every allegation of the petition the government interposed a general traverse. It is now said that a counterclaim or set off should have been pleaded, but the record does not disclose that this objection was raised below, while the findings of fact show that the entire matter was before the court for, and received, adjudication. Moreover, it has been repeatedly held that the forms of pleading in the Court of Claims are not of so strict a character as to require omissions of this kind to be held fatal to the rendition of such judgment as the facts demand. United States v. Burns, 12 Wall. 246, 254; Clark v. United States, 95 U. S. 539, 543; United States v. Behan, 110 U. S. 338, 347; United States v. Carr, 132 U. S. 644, 650.

Judgment affirmed.

MR. JUSTICE PECKHAM dissented on the question of the right of the government to offset the alleged overpayments prior to July 1, 1883.

Statement of the Case.

UNITED STATES v. VERDIER.

APPEAL FROM THE COURT OF CLAIMS.

No. 49. Argued October 20, 1896. Decided November 16, 1896.

In actions in the Court of Claims interest prior to the judgment cannot be allowed to claimants, against the United States; but the provisions of Rev. Stat. § 966 peremptorily require it to be allowed to the United States, against claimants, under all circumstances to which the statute applies, and without regard to equities which might be considered between private parties.

THIS was a petition by the administrator of James R. Verdier, deceased, for the payment of a balance of $1300.41 claimed to be due him upon a readjustment of his accounts as postmaster at Beaufort, South Carolina, from July 1, 1866, to April 30, 1869.

Upon a hearing in the Court of Claims that court made the following findings of fact:

"1. James R. Verdier was a duly qualified postmaster at Beaufort, S. C., from July 1, 1866, to the 30th day of April, 1869.

"2. Upon his retirement from office he appeared as indebted to the United States, on the face of his postal accounts, in the sum of $929.20. June 28, 1870, an action was brought by the United States against him on his official bond, in the United States District Court of South Carolina, to recover said sum, and July 5, 1870, the jury returned a verdict in favor of the United States for the sum of $1063.20, which verdict was, upon motion of Verdier's attorney, set aside.

"October 31, following, the attorney for said Verdier consented that the case be submitted to the court, and upon said date the jury returned a verdict in favor of the United States against Verdier for the sum of $1059.03; the costs were $36.80; total, $1095.83. Judgment thereon was duly signed January 25, 1871.

"3. November 3, 1885, application was made to the Postmaster General by the administrator for a review and read

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justment of decedent's salary as postmaster aforesaid, under the provisions of the act of March 3, 1883, c. 119, 22 Stat. 487. December 23, 1885, said salary was readjusted and the sum of $2892.84 found due said decedent's estate. August 4, 1886, c. 903, a sum of money was appropriated by Congress to pay this and similar allowances. 24 Stat. 256, 307, 308.

"4. March 4, 1887, decedent's postal account was audited by the Auditor for the Post Office Department, who charged his account with the aforesaid judgment and interest thereon from July 5, 1870, to August 4, 1886 (the date of appropriation), and costs of suit, the total thereof being the sum of $2296.77, and deducted this sum from the amount of salary credited to said account, showing a balance of $596.07.

"June 20, 1887, the United States attorney for the aforesaid district was instructed to satisfy said judgment, which was accordingly done July 25, 1887.

"5. The sum of $596.07 was paid plaintiff, who gave the following receipt:

"Mailed Sept. 14, 1887. Received Sept. 26, 1887, the transfer draft of the Third Assistant Postmaster General, No. 4655, for 596 dollars .07 cents in my favor on the postmaster at New York, State of N. Y., to the

"W. J. VERDIER, Administrator.""

Upon these facts the court found as a conclusion of law that the petitioner was entitled to recover in the sum of $1233.57, 28 C. Cl. 268, for which amount judgment was entered and the United States appealed.

Mr. Assistant Attorney General Dodge for appellants. Mr. Assistant Attorney Capers was on his brief.

Mr. Ilarvey Spalding for appellee.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.