Opinion of the Court. the mistaken supposition that it had been paid to the Bank of Geneva by the maker, when in fact it had not, and it was not pretended that the Utica Bank had been guilty of any negligence, the Supreme Court of New York held that notice of the fact that the note had not been paid by the maker was unnecessary to maintain an action by the Utica Bank to recover back the money from the indorsers; and Chief Justice Spencer said: "The plaintiffs' ground of action, then, is that the money was paid to the defendants under a mistake of facts. The defendants are not bailees or trustees of the money thus received. It was paid and received, as their money, and not as money to be kept for the plaintiffs. In such a case, it was not necessary to make a demand prior to the suit; for a request was not essential to the maintenance of the action; nor did the defendants' duty to return the money erroneously paid arise upon request." In Bank of United States v. Daniel, the acceptor and indorsers, upon taking up a bill of exchange for ten thousand dollars, which had been duly protested for non-payment, paid ten per cent as damages, under a mistake as to the local law upon the subject. Upon a bill in equity to relieve against the mistake and recover back the money, this court, while holding that such a mistake gave no ground for relief, also held that, if it did, the statute of limitations ran, in equity as well as at law, from the time of the payment, saying: "If the thousand dollars claimed as damages were paid to the bank at the time the bill of exchange was taken up, then the cause of action to recover the money (had it been well founded) accrued at the time the mistaken payment was made, which could have been rectified in equity, or the money recovered back by a suit at law." 12 Pet. 32, 56. In Dill v. Wareham, 7 Met. 438, the Supreme Judicial Court of Massachusetts, speaking by Chief Justice Shaw, held that a party receiving money in advance, on a contract which he had no authority to make and afterwards refused to fulfil, was liable to the other party in an action for money had and received, without averment or proof of any previous demand. And in Sturgis v. Preston, 134 Mass. 372, where land Opinion of the Court. was sold for a certain sum by the square foot, and the purchaser, relying on the vendor's statement of the number of feet, made payment accordingly, and afterwards discovered that the number had been overstated, but disclaimed all charge of fraud or fraudulent concealment on the part of the vendor, it was held that the right of action to recover back the excess paid accrued immediately, without any previous demand, and was barred by the statute of limitations in six years from the date of the payment. See also Earle v. Bickford, 6 Allen, 549; Blethen v. Lovering, 58 Maine, 437. The judgment of the Circuit Court in the present case appears to have been based upon the decision in Merchants' Bank v. First National Bank, 4 Hughes, 1, which proceeds upon grounds inconsistent with the principles and authorities above stated, and cites no case except the very peculiar one of Cowper v. Godmond, 9 Bing. 748; S. C. 3 Moore & Scott, 219; in which the right of action to recover back money paid for a grant of an annuity, the memorial of which was defective, was held not to accrue until the grantor elected to avoid it on that ground, the annuity apparently being considered as not absolutely void, but as voidable only at the election of the grantor. See Churchill v. Bertrand, 3 Q. B. 568; S. C. 2 Gale & Dav. 548. Although some of the opinions of the Court of Appeals of New York, in the cases cited at the bar, contain dicta which, taken by themselves, and without regard to the facts before the court, might seem to support the position of the defendant in error, yet the judgments in those cases, upon full examination, appear to be quite in accord with the views which we have expressed. The cases of Thomson v. Bank of British North America, 82 N. Y. 1, and Bank of British North America v. Merchants' Bank, 91 N. Y. 106, were actions by depositors against their respective bankers, and were therefore held not to be barred until six years after demand. In Southwick v. First National Bank, 84 N. Y. 420, the decision was that there was no such mistake as entitled the party paying the money to reclaim it; and in Sharkey v. Mansfield, Opinion of the Court. 90 N. Y. 227, it was adjudged that money paid by mistake, but received with full knowledge of all the facts, might be recovered back without previous demand; and what was said in either opinion as to the necessity of a demand where both parties act under mistake was obiter dictum. Two other cases in that court were decided together, and on the same day as Bank of British North America v. Merchants' Bank, above cited. In one of them, the defendants, who had innocently sold to the plaintiffs a forged note as genuine, and, upon being informed of the forgery and requested to pay back the purchase money, had expressly promised to do so if the plaintiffs should be obliged to pay a third person to whom they had in turn sold the note, were therefore held not to be discharged from their liability to refund by the plaintiffs' having awaited the determination of a suit by that person against themselves, before returning the note to the defendants. Frank v. Lanier, 91 N. Y. 112. In the other case, a bank, which had paid a check upon a forged indorsement, supposed by both parties to be genuine, was held entitled to recover back the money, with interest from the time of payment, necessarily implying that the right of action accrued at that time. Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74. In the case at bar, as in the case last cited, the plaintiff's right of action did not depend upon any express promise by the defendant after the discovery of the mistake, or upon any demand by the plaintiff upon the defendant, or by the depos itor or any other person upon the plaintiff; but it was to recover back the money, as paid without consideration, and had and received by the defendant to the plaintiff's use. That right accrued at the date of the payment, and was barred by the statute of limitations in six years from that date. For this reason, without considering any other ground of defence, the order must be Judgment reversed, and case remanded to the Circuit Court, with directions to set aside the verdict and to order a new trial. Opinion of the Court. MR. JUSTICE BLATCHFORD did not sit in this case, or take any part in the decision. MR. CHIEF JUSTICE FULLER and MR. JUSTICE LAMAR were not members of the court when this case was argued, and took no part in its decision. WESTERN UNION TELEGRAPH COMPANY v. PENNSYLVANIA. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. No. 56. Submitted October 18, 1888.- Decided October 22, 1888. On the authority of Telegraph Co. v. Texas, 105 U. S. 460, and Ratterman v. Western Union Telegraph Co., 127 U. S. 411, this case is reversed and remanded for such further proceedings as justice may require. THE case is stated in the opinion of the court. Mr. M. E. Olmsted for plaintiff in error. Mr. W. S. Kirkpatrick, Attorney General of Pennsylvania, for defendant in error. Mr. John F. Sanderson, Deputy Attorney General, was also on the brief. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Judgment was rendered against plaintiff in error for taxes on telegraphic messages sent from point to point within the State of Pennsylvania; on messages sent from points within the State to points in other States; on messages sent from points in other States to points within the State; and on messages sent to and from points in other States, which passed over lines partly within the State; and the record discloses the several amounts of taxes upon the several classes of messages, which, with commissions and interest, make up the total recovery. It is clear, and this is conceded by the defend Syllabus. ant in error, that, under the decisions of this court in Telegraph Co. v. Texas, 105 U. S. 460, and Ratterman v. Western Union Telegraph Co., 127 U. S. 411, the Commonwealth was not entitled to recover for the taxes in question, excepting in respect to the messages transmitted wholly within the State. The judgment will therefore be reversed and the cause remanded for such further proceedings as justice may require. UNITED STATES ex rel. DUNLAP v. BLACK, COMMISSIONER OF PENSIONS. UNITED STATES ex rel. ROSE v. SAME. UNITED STATES ex rel. MILLER v. SAME. ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Nos. 991, 992, 993. Argued October 12, 1888.- Decided October 22, 1888. The courts will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law; no appellate power being given them for that purpose. When an executive officer of the government refuses to act at all in a case in which the law requires him to act, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon him, that is, a service which he is bound to perform without further question, if he refuses mandamus lies to compel him to his duty. The Commissioner of Pensions by receiving the application of a pensioner for an increase of his pension under the act of June 16, 1880, 21 Stat. 281, c. 236, and by considering it and the evidence in support of it, and by deciding adversely to the petitioner, performs the executive act which the law requires him to perform in such case; and the courts have no appellate power over him in this respect, and no right to review his decision. A decision of the Commissioner of Pensions adverse to the application of a pensioner for an increase of pension, under a statute granting an increase in certain cases, being overruled by the Secretary of the Interior on the ground that the applicant comes under the meaning of the law granting the increase, and the Commissioner refusing to carry out the decision of |