and Ohio was real estate. It was a "building or structure," within the proper meaning of the words. Bridge Proprietors v. Hoboken Land & Improv. Co. 1 Wall. 116, 147 [17: 571, 577]; [State], Whitall, v. Glouces ter County Freeholders, 40 N. J. L. 302, 305. And it had been declared by Congress to be "a lawful structure." Act of July 14, 1862; 12 Stat. at L. 569, chap. 167. The fact that the bridge was an instrument of interstate commerce did not exempt so much of it as was within West Virginia from taxation by the state. Henderson Bridge Co. v. Henderson City, 141 U. S. 679 [35: 900].

its principal officers, to the auditor of the state, on or before the 1st of April in each year, a return in writing, under oath, showing, among other things, the following: 1st. The whole number of its miles of railroad within the state. 2d. If the railroad is partly within and partly without the state, the whole number of miles within, and of those without the state, including all its branches. 3d. "Its railroad track in each county in this state through which it runs, giving the whole number of miles of road in the county, [42] including the *track and its branches and side and second tracks, switches, and turnouts therein; and the fair cash value per mile According to the facts alleged in the bill of such railroad in each county, including and admitted by the demurrer, the plaintiff in such valuation such main track, branches, has been assessed by the board of public side and second tracks, switches, and turn-works one sum upon the whole length of its outs." 4th. All its rolling stock, and the railroad track within the state, and another fair cash value thereof, distinguishing be- sum upon that part of the bridge within the tween what is used wholly within the state, state, as a separate structure. and what is used partly within and partly without the state, and the proportionate value of the latter, according to the time used and the number of miles run thereby in and out of the state; "and the proportional cash value thereof to each county in this state through which such railroad runs." 5th. "Its depots, station houses, freight houses, machine and repair shops and machinery therein, and all other buildings, structures, and appendages connected thereto or used therewith, together with all other real estate, other than its railroad track, owned or used by it in connection with its railroad, and not otherwise taxed, including telegraph lines owned or used by it; and the fair cash value of all buildings and structures, and all machinery and appendages, and of each parcel of such real estate, including such telegraph line, and the cash value thereof in each county in this state in which it is located."

The plaintiff alleged in the bill that its return included, in the number of miles of its main track, so much of the bridge as lay within the state; and contended that the bridge was included in "its railroad track," within the meaning of the third subdivision of the section of the code above quoted, and therefore should have been assessed only as so many feet of the railroad. But the return does not mention the bridge; and, if it was included in the term "railroad track" in that subdivision, the increased value of the track by reason of the bridge might properly be taken into consideration in estimating the value of the railroad track, and the assessment of the track and the bridge separately would seem to be a difference of form rather than of substance. Pittsburgh, C. C. & St. L. Railway Co. v. Backus, 154 U. S. 421, 429 [38: 1031, 1037]; Robertson v. Anderson, 57 Iowa, 165.

If the bridge was not covered by the third The return made by the railroad company subdivision, it was certainly included in the to the auditor is to be laid by him, as soon as fifth. This subdivision begins by designatpracticable, before the board of public works. ing "depots, station houses, freight houses, If the return is satisfactory to the board, the machine and repair shops and machinery board shall approve it, and, by an order en- therein, and all other buildings, structures, [44] tered upon its records, direct the auditor to and appendages connected thereto or used assess the property of the company with therewith." It was argued that the words taxes, and he shall assess it as afterwards "thereto" and "therewith," in this sentence, provided. But if the return is not satisfac- referred to the same antecedent as the pretory, the board is authorized to proceed, in vious word "therein;" and that "therein" such manner as it may deem best, to obtain referred to depots, station houses, freight the information required to be furnished by houses, machine and repair shops, and therethe return; and may compel the attendance fore "thereto" and "therewith" must be of witnesses and the production of papers; equally restricted. But if a strictly gramand is directed, as soon as possible after hav-matical construction should be adopted, it ing procured the necessary information, to may well be doubted whether "machinery assess and fix the fair cash value of all the therein" related to anything but machine property required to be returned, in each and repair shops; and it can hardly have county through which the railroad runs; been the intention of the legislature to limit and, in ascertaining such value, to consider the words "buildings, structures, and apthe return, and all the evidence and informa-pendages connected thereto or used theretion that it has been able to procure, and all such as may be offered by the railroad company.

[43] *The legislature evidently intended that the annual return should include all the real estate owned or used by the railroad company in connection with its railroad within the state. The plaintiff's bridge across the Ohio river between the states of West Virginia

with" to those connected or used with such shops only. If the bridge is not a "building or structure," within the meaning of those words, as here used, it certainly (if not part of the "railroad track," under the third subdivision) comes within the words next fol. lowing, "together with all other real estate, other than its railroad track, owned or used by it in connection with its railroad." By

The statute further makes it the duty of the auditor, "as soon as possible after he completes the said assessments," to make out and transmit to the railroad company "a statement of all taxes and levies so charged;" and the duty of the railroad company "so assessed and charged" to pay "the whole amount of such taxes and levies upon its property" by the 20th of January "next after the assessment thereof;" and if the company does not pay "such taxes and levies" by that day, the auditor is directed to add | ten per cent to the amount thereof to pay the expenses of collecting them, and to certify to the sheriff of each county "the amount of such taxes and levies assessed within his county.'

In the present case, the bill does not allege that there was any fraud in the assessment; or that the defendants made any attempt to interfere with the plaintiff's ownership or control of its real estate; or that the plaintiff either made any application to the auditor to correct any supposed mistake in the assessment, or took any appeal from the decision of the board of public works to the circuit court of the county; or that, within the thirty days allowed for such an appeal, any attempt was made by the defendants, either to charge the plaintiff with the penalty of ten per cent for delay in payment of the taxes, or to levy upon its property for nonpayment of them.

UNITED STATES, Appt.,

v.

MARY A. WARDWELL, Admrx., of William V. B. Wardwell, Deceased.

U.

1.

2.

3.

(See S. C. Reporter's ed. 48-58.)

S. Rev. Stat. § 1069-§§ 306, 308-statute of limitations as to a claim against the United States.

U. S. Rev. Stat. § 1069, is not merely a statute of limitations but also jurisdictional in its nature, and limiting the cases of which the court of claims can take cognizance.

U. S. Rev. Stat. §§ 306-308, contain a promise by the government to hold the money covered into the Treasury under said sections, for the benefit of the owner until such time as he shall call for it. This is a continuing promise.

A claim against the United States for moneys carried to the credit of the payee of a check drawn by a disbursing officer in pursuance of U. S. Rev. Stat. § 306, for whica, by 308, the proper officer of the Treasury is required to give a warrant, does not accrue at the time the check is issued or at the time when it may be lost or destroyed, so that the statute of limitations (U. S. Rev. Stat. § 1069) will begin to run, but it will accrue only when the promise made by § 308 is broken, as, by refusal of an application for

a warrant.

[No. 53.]

On the contrary, the bill would appear to have been studiously framed to avoid mak- Argued October 20, 1898. ing any such allegation. The bill, which was sworn to on March 18, 1895, alleged that

on January 19, 1895 (sixty days before), the plaintiff received notice from the auditor of the decision of the board of public works; that "on the day of, 1895" (which [48] might be any day before the bill was sworn to), the auditor added the ten per cent and certified to the sheriff the amount of the tax assessed with that addition; and that the sheriff "since said date" had demanded payment of both sums from the plaintiff; and the affidavit filed with the bill on March 25, 1895, shows that the sheriff's levy on one of the plaintiff's engines was made after the bill was sworn to.

The only reasonable inference from these vague allegations of the bill is that the auditor waited for more than thirty days, after giving the plaintiff notice of the decision of the board of public works, in order to afford full opportunity for an appeal from that decision; and that no penalty was imposed for delay in payment of the taxes, nor any active measure taken to enforce them, until it had become clear that the plaintiff did not intend to take such an appeal.

The plaintiff, upon its own showing, having made no attempt to avail itself of the adequate remedies provided by the statute of the state for the review of the assessment complained of, is not entitled to maintain this bill.

Decree affirmed. 360

ber 28, 1898.

Decided Novem

of Claims in favor of Mary A. Wardwell, PPEAL from a judgment of the Court administratrix, etc., against the United States for the amount of three checks drawn on the Assistant Treasurer of the United States in payment of claims against it, and which were subsequently lost and destroyed and the amounts thereof covered into the Treasury. Affirmed.

See same case below, 32 Ct. Cl. 30.

Statement by Mr. Justice Brewer: *This is an appeal from the court of claims. [49] The facts as found by that court are that in June, 1869, three checks were drawn in favor of William V. B. Wardwell, one by Major W. B. Rochester, paymaster, United States Army, and two by Major M. I. Ludington, quartermaster, United States Army, all drawn on the Assistant Treasurer of the United States in New York, and in payment of lawful claims of Wardwell against the United States. Subsequently to the issue of the checks and while still in the possession and ownership of Wardwell they were lost or destroyed, probably in a depredation committed on his house by Indians in the year 1872. None of the checks having been presented for payment the amounts thereof were covered into the Treasury of the United States and carried to the account of "outstanding liabilitics" in pursuance of the act 172 U. S.

of May 2, 1866, now sections 306 and follow-| sued by the Treasurer, or by any disbursing ing, Revised Statutes, the entry on the books officer of any department of the government, of the Treasury (as shown by a report made upon the Treasurer or any Assistant Treas by the Secretary of the Treasury to the urer or designated depositary of the United House of Representatives) being as follows: *States, or upon any national bank designated [51]

No part of the same has ever been paid. | as a depositary of the United States, and Wardwell is dead and the claimant is his which shall be represented on the books of duly appointed and acting administratrix. either of such offices as standing to the credit As such she in 1890 applied to the Treasury of any disbursing officer, and which were isDepartment for payment of the checks by the sued to facilitate the payment of warrants, issue of Treasury warrants, and at the same or for any other purpose in liquidation of a time filed a bond of indemnity, with sufficient debt due from the United States, and which sureties, for double the amounts thereof, to have for three years or more remained outsecure the United States against a possible standing, unsatisfied and unpaid, shall be second demand for payment. The First deposited by the Treasurer, to be covered into Comptroller of the Treasury declined to per- the Treasury by warrant and to be carried [50] mit *the settlement of a new account or the to the credit of the parties in whose favor issue of warrants in favor of the claimant. such certificates, drafts, or checks were reThereafter, and on April 10, 1896, she com- spectively issued, or to the persons who are menced this suit. As a conclusion of law the entitled to receive pay therefor, and into an court found that the statute of limitations appropriation account to be denominated did not begin to run until the 14th day of 'outstanding liabilities.' April, 1890, the time when the accounting officers of the Treasury refused to recognize the claimant's demand, and that she was entitled to recover the amount of the three checks, and on the 11th day of January, 1897, entered judgment for that amount. From such judgment the United States appealed to this court.

"Sec. 307. The certificate of the Register of the Treasury, stating that the amount of any draft issued by the Treasurer to facilitate the payment of a warrant directed to him for payment has remained outstanding and unpaid for three years or more, and has been deposited and covered into the Treasury in the manner prescribed by the preceding section, shall be, when attached to any such warrant, a sufficient voucher in satisfaction of any such warrant or part of any warrant, the same as if the drafts correctly indorsed and fully satisfied were attached to such warrant or part of warrant. And all such moneys mentioned in this and in the preceding section shall remain as a permanent appropriation for the redemption and payment of all such outstanding and unpaid certificates, drafts, and checks.

Section 1069, Revised Statutes, provides: "Every claim against the United States, cognizable by the court of claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the secretary of the Senate or the clerk of the House of Representatives as provided by law, within six years after the claim first accrues: Provided, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during "Sec. 308. The payee or the bona fide holdninority, and of idiots, lunatics, insane per-er of any draft or check, the amount of which sons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively."

The act of May 2, 1866, is entitled "An Act to Facilitate the Settlement of the Ac

counts of the Treasurer of the United States, and to Secure Certain Moneys to the People of the United States, or to Persons to Whom They are Due, and Who are Entitled to Receive the Same." (14 Stat. at L. 41, chap. 70.)

This was carried into the Revised Statutes as sections 306 and following. Sections 306, 307, and 308 read:

has been deposited and covered into the
Treasury pursuant to the preceding sections,
shall, on presenting the same to the proper
officer of the Treasury, be entitled to have it
paid by the settlement of an account and the
issuing of a warrant in his favor, according
to the practice in other cases of authorized
and liquidated claims against the United
States.'

Louis A. Pradt, Assistant Attorney General,
Messrs. George Hines Gorman and
for appellant.

Messrs. George A. King and Edward E.
Holman for appellee.

*Mr. Justice Brewer delivered the opin- [52] ion of the court:

Section 1069, Revised Statutes, is not "Sec. 306. At the termination of each fis- merely a statute of limitations but also jucal year all amounts of moneys that are rep- risdictional in its nature, and limiting the resented by certificates, drafts, or checks, is-cases of which the court of claims can take

cognizance. Finn v. United States, 123 U. S. 227 [31: 128].

| promise made in section 308 is broken, then a claim for the breach of such contract first accrues, and the limitation prescribed by section 1069 begins to run. There is thus no conflict with that section. Its full force is not impaired.

In this connection it may be not amiss to notice those authorities in which it is held that upon the ordinary deposit of money with a bank no action will lie until a demand has been made, by check or otherwise, and that hence the statute of limitations will not begin to run until after a refusal to pay on such demand. In Downes v. Phoenix Bank of Charlestown, 6 Hill, 297, 300, Bronson, J., delivered the opinion of the court, and, after referring to the ordinary rule that where there is a promise to pay on demand the bringing of an action is a sufficient demand, and criticising it as illogical, added:

er shall keep the money until it is called for. Although it is not strictly a bailment, it partakes in some degree of that character." See also Johnson v. Farmers' Bank, 1 Harr. (Del.) 117; Watson v. Phoenix Bank, 8 Met. 217-221 [41 Am. Dec. 500].

In Dickinson v. Leominster Savings Bank, 152 Mass. 49, 55, it was held that the statute of limitations would not begin to run in favor of the bank and against a depositor until there had been something equivalent to a refusal on the part of the bank to pay, or a denial of liability.

Counsel for the government contend that the claim against the United States first accrued in 1869, when the checks were issued, or, if not then, at least in 1872, when they were lost or destroyed, and therefore, this being twenty-four years before the commencement of this suit, that the claim was barred. If there were nothing to be considered but the single section referred to, it would be difficult to escape this conclusion of counsel. It is further contended that sections 306, 307, and 308 relate to what is simply a matter of bookkeeping, and do not in any manner change the scope of the liability of the government. But we are of the opinion that they mean something more. While it may be that they do not provide for the creation of an express trust, liability for which, according to general rules, continues until *"The rule ought not to be extended to [54] there is a direct repudiation thereof, yet cases which do not fall precisely within it. they contain a promise by the government to Here the contract to be implied from the hold the money thus covered into the Treas-usual course of the business is that the bankury for the benefit of the owner until such time as he shall call for it. This is a continuing promise, and one to which full force and efficacy should be given. If bookkeeping was the only matter sought to be provided for, there were no need of section 308. That prescribes payment, and payment in a particular way. The payee does not simply surrender his check and receive money. But "on presenting the same to the proper officer" he is "entitled to have it paid by the settlement of an account and the issuing of a warrant in his favor." This may be mere machinery for payment, but it is machinery not used or required until after the money [53] has been "covered into the *Treasury by warrant" and "carried to the credit" of the payThe right given is the right to surrender the check and receive a warrant on the Treasury. It will also be noticed that the purpose of the act of 1866 was, as expressed in its title, not merely to "facilitate the settlement of the accounts of the Treasurer of the United States," not merely to perfect a system of bookkeeping, but also "to secure certain moneys to persons to whom they are due, and who are entitled to receive the same." And the deposit by the Treasurer is not of a gross amount to be applied to any claims that may arise, but of the amount due for certain specified checks and drafts. In other words, the purpose of the government by this statute is to secure to each party who holds government paper the amount thereof, to place it in the Treasury to his credit, and to prescribe a method by which whenever he wishes he can obtain it. No time is mentioned within which he must apply for a warrant or after which the money is forfeited to the government. The ordinary rules for the maturity of negotiable paper do not control. Congress has directed that the money already once appropriated and checked against shall be placed in the Treasury and held subject to the call of the party for whose benefit it has been so appropriated and checked. There is no occasion for suit until after his application for a warrant is refused. When the contract created by the

ee.

In Girard Bank v. Bank of Penn Township, 39 Pa. 92, 98, 99 [80 Am. Dec. 507], the holder of a certified check was the plaintiff, and, the check having been outstanding more than six years, the statute of limitations was pleaded; but the plea was not sustained, the court, by Strong, J., saying, in respect to the case of an ordinary deposit:

"Were this a suit against the Bank of Penn Township by the original depositor the statute of limitations would be interposed in vain, not so much because a bank is a technical trustee for its depositors, as for the reason that the liability assumed by receiving be made. The engagement of a bank with a deposit is to pay when actual demand shall its depositor is not to pay absolutely and immediately, but when payment shall be required at the banking house. It becomes a inere custodian, and is not in default or liable to respond in damages until demand has been made and payment refused. Such are the terms of the contract implied in the transaction of receiving money on deposit, terms necessary alike to the depositor and the banker. And it is only because such is the contract, that the bank is not under the obligation of a common debtor to go after its customer and return the deposit wherever he may be found. Hence it follows that no right of action exists, and the statute of limitations does not begin to run until the demand stipulated for in the contract has been duly made."

And the rule thus announced in respect to