to restrain collection of the tax, and to have it declared void. Snyder v. Marks, 109 U. S. 189. Miles v. Johnson, 59 Fed. Rep.38. Pullan v. Kinsinger, 2 Abb. U. S. 94. Treat v. Staples, Holmes, 1. Alkan v. Bean, 8 Biss. 83. The fact that an assessment has been paid does not bar a suit to recover an amount claimed to be due beyond the amount so assessed and paid, even though it included the added penalty. United States v. Little Miami, &c. R. Co. 26 Int. Rev. Rec. 101. Doll v. Evans, 15 Ibid. 143; 9 Phila. 364. United States v. Hazard, 11 Am. Law Rev. 381. Under the Internal Revenue Laws, a suit cannot be maintained against a collector to recover back an internal tax erroneously or illegally assessed or collected, or a penalty collected without authority, or any sum alleged to have been excessive or in any manner wrongfully collected, if the taxpayer or other person making such payment has failed, within two years next after the cause of action accrued, to present to the Commissioner of Internal Revenue his claim for refunding. U. S. Rev. Stats. § 3228. Kings Co. Savings Inst'n v. Blair, 116 U. S. 200. As § 29 of the present Act provides for an ap peal to the Commissioner of Internal Revenue, the suit cannot, under U. S. Rev. Stats. §§ 3226, 3227, be maintained until such appeal has been duly made and the Commissioner's decision rendered, except that, if his decision is delayed more than six months from the date of the appeal, the suit may be brought without first having such a decision at any time within two years after the cause of action accrued, or, when the case is pending before the Commissioner, within one year after such decision. Bailey v. Railroad Co., 22 Wall. 604. Cheatham v. United States, 92 U. S. 85, 89. The right of action in such cases must be founded upon the Acts of Congress, and not upon an implied promise at common law, since a promise to refund cannot be implied where the statute makes it the officer's duty to pay into the public treasury all amounts collected. The Collector v. Hubbard, 12 Wall. 1. Braun v. Sauerwein, 10 Wall. 218. James v. Hicks, 110 U. S. 272. San Francisco S. Soc. v. Cary, 2 Sawyer, 333. In Stewart v. Barnes, 153 U. S. 456, 458, Mr. Justice Shiras said with reference to § 19 of the Act of July 13, 1866, ch. 184, (14 Stat. at L. 102,) and § 44 of the Act of June 6, 1872, ch. 315 (now Rev. Stats. § 3227): "Under either of those Acts, before an action could be maintained in any court, an appeal must first have been made to the Commissioner. In the Act of 1866 there was no limitation of time within which such an appeal was to be made. The Act of 1872 required that it should be made within two years from the time the cause of action accrued. Under the earlier Act, if such appeal had been made, still no action could be maintained in any court unless a decision should have been made upon the claim by the Commissioner, in which event the suit must have been brought within six months from the time of the decision, or within the same period after the Act took effect. Under the later Act, if the Commissioner delayed his decision for more than six months, the claimant was not compelled to await it, but might have sued within six months next following the six months of the Commissioner's delay, or one year from the time of appeal; but if the claimant had allowed that period to terminate without instituting suit, he must then have waited, as before, until the claim should have been passed upon, and have sued within one year thereafter." The Commissioner is not limited to paying a judgment against a collector to him, but may pay it directly to the plaintiff. United States v. Frerichs, 124 U. S. 315; 21 The Commissioner, although authorized to refund taxes erroneously collected, is not strictly obliged so to do; the matter rests in his discretion, and he should act justly. His determination cannot be questioned by the disbursing officers. 13 Att. Gen. Op. 439. Woolner v. United States, 13 Ct. Cl. 355. Nixon v. United States, 18 Ct. Cl. 448. As § 29 declares that "it shall be the duty of the collector or deputy collector" to add the penalty for failure to make a return, or for a fraudulent return, those officers have no discretion in the matter, but must invariably impose the penalty. 2 Int. Rev. Rec. 36. The above Acts of Congress apply as well to suits in the State courts as to those in the Federal courts, but not to Government suits for collecting the tax. The Collector v. Hubbard, 12 Wall. 1. Clinkenbeard v. United States, 21 Wall. 65. The authority of the Commissioner of Internal Revenue to refund a tax is not exhausted by his rejection of an application to refund, but he may afterwards, under U. S. Rev. Stats. § 3220, allow to a collector the amount recovered against him by suit, and such allowance can be impeached only for fraud or mistake. Nixon v. United States, 18 Ct. Cl. 448. Such allowance properly includes costs paid. United States v. Davis, 54 Fed. Rep. 147. The defence of failure to take an appeal to the Commissioner is waived, if not pleaded in abate ment. Hendy v. Soule, Deady, 400. If the plaintiff has accepted, without objection, payment of the amount illegally exacted, he thereby surrenders his right to sue for interest as incidental damages. Stewart v. Barnes, 153 U. S. 456; 43 Fed. Rep. 281. A decision, reported by the Commissioner of Internal Revenue in 1871, as to the refunding of certain taxes, to the Secretary of the Treasury for his advisement, under the Treasury Regulations then in force, was held not to be final, within said § 5220. Stotesbury v. United States, 146 U. S. 196; 23 See Dupasseur v. United States, 19 Ct. Cl. 1; A corporation is not bound to produce its books. |