George Shiras, Jr.

“ In a case where a demand of damages constitutes the very ground of the action, it would seem that the rule would be different. If, for instance, in covenant on the part of the lessee to repair a building, the lessee should prove performance, the plaintiff might still be entitled to have the jury pass upon the question of his damages, however small they might be, because in such a case the right to damages constitutes the right of action. ”

“ The purpose of this plea was evidently to invoke the operation of those acts of congress which relate to the presentation of claims for alleged illegal exaction of taxes to the commissioner of internal revenue, and which lay down the conditions upon which alone the government permits a recovery by suit of amounts so exacted. ”

“ The defendant admitted that certain official regulations promulgated by the commissioner of internal revenue prior to and upon April 22, 1869, which were offered in evidence by the plaintiff, provided that the taxes on distilled spirits placed in bonded warehouses before July 20, 1868, should be exacted, upon the withdrawal of the spirits, only upon the actual quantity thereof so withdrawn. No evidence was introduced to show the nature of the protest made, but it was unnecessary to prove more than that the payment was made 'under protest,' which was admitted by the plea. ”