
    THE BOSTON BANK CASES.
    The State National Bank of Boston v. The United States.
    
      On the Proofs.
    
    
      Hartwell, the defendants’ cashier in the subtreasury in Boston, embezzles money and lends it to Mellen, Ward f Oo. Later he notifies Carter, a member of the firm, that the money mitst be refunded to meet a special examination of his accounts. C. proposes a scheme for raising money, to which H. accedes, but says he must receive the money from C. and not from third parties. C. then buys gold-certificates in Hew York,.gets the Merchants’ Bank to make advanees on them, and subsequently induces the cashier of the State Bank to take them up by certifying M., W. tf Co.’s checks for the amount of the other bank’s advances, and also to leave them at the subtreasury for redemption. C. accompanies the eashierto the subtreasury and pushes the certificates aci'oss the counten’ to Hart-
      
      well, who writes a receipt for them in the name of M., W. §■ Co. The cashier objects to the receipt, but C. satisfies him by indorsing on it “ Pay only upon the order of C. H Smith, cashier.” J3T. then applies the gold-certificates to making good his own defalcation, and cancels andsends them to Washington. The State Sanie and Merchants’ Bank bring each its several action to recover bach the amount of the certificates as money had and received to its use.
    
    I. Where money is delivered to an officer of the Government for a lawful purpose to which he refuses to apply it, he cannot apply it to any other, and it may he recovered hack hy'an action in this court as money had and received to the use of the depositor. Therefore, where a party carries gold-certificates for redemption to the proper officer of the Government and is induced, by a fraudulent conspiracy between the officer and a third person, to leave the certificates in the subtreasury over night, and the officer treats them as being received from the third person, (to whom he has lent Government money,) and applies them toward making good his own defalcation, the owner may maintain against the Government a common-law action of assumpsit for money had and received.
    II. Though an action will not lie against the Government for the wrongful acts of its officers, nevertheless an action founded entirely upon their lawful acts will not be defeated by reason of their subsequent wrongful acts to which the other party is a stranger, and from which the Government would reap an advantage; that is, while the party cannot set up the wrongful acts of its officers against the Government, neither can the Government set up the wrongful acts of its officers to relieve itself from its lawful liabilities.
    III. Where a party presents for payment Government gold-certificates, and the Government cashier fraudulently cancels and applies them upon his own indebtedness to the Government, and the-party, treating them as money, brings his action in the nature of a common-law action in assump-sit to recover the amount thereof, it will be held that the Government has in its possession gold coin belonging to the party, and judgment will be rendered payable in gold.
    
      The Reporters' statement of tbe case:
    The two cases of the State and Merchants’ National Banks of Boston were heard together. Each claimed pro forma to have held the title to the gold-certificates, but the suits were not adverse, that of the Merchants’ Bank being brought for greater precaution lest the title of the State Bank should not be sustained. The evidence was the same in both suits and the facts found substantially identical. Much of the contest was as to matters of fact, and the following findings are an epitome of the evidence:
    
      Tlie court found the following facts :
    I. From November, 1862, till March 1, 1867, one Julius F. Hartwell was employed as a clerk in the office of the assistant treasurer of the United States, at Boston, Mass.; for three years of that time as currency clerk, and for the remainder of the time as disbursing clerk or cashier; in which latter capacity it was his duty to receive all monys paid into the subtreasury and pay out the same.
    II. In the year 1864 the said Hartwell had transactions in the purchase and. sale of stocks on margin with a firm of brokers in Boston styled Mellen, Ward & Mower; which transactions resulted in his becoming indebted to them in the sum of $6,000, on account of losses, which indebtedness he was unable to pay. Between the date of said transactions and the spring of 1866 the style of said firm was changed to Mellen, Ward & Co., and the firm under this style was composed of Charles Mellen, Charles H. Ward, and Edward Carter, the last named of whom does not appear to have been a member of the firm of Mellen, Ward & Mower.
    III. In thé summer of 1866 the said Edward Carter gave said Hartwell a voluntary receipt in full of the claim of Mel-len, Ward & Mower against him, with the understanding between said Carter and said Hartwell that said Hartwell, in his position in .the snbtreasury, should aid Mellen, Ward &.Co. in their business in such ways as were proper, such as exchanging gold for coupons in advance of the time of payment of the latter; paying coupon and registered interest before due ; giving large bills or clearing-house funds for small bills or fractional currency ; the exchange of large gold for small, and the issuing and holding by Hartwell of receipts to the First National Bank of Newton (of which said Garter was a director) until they should be paid by Mellen, Ward & Co. This bank was a national depository, and was accustomed to pay money into the subtreasury at Boston, due from it to the United States, for which the said Hartwell would give receipts.
    IY. In August, 1866, Carter requested of Hartwell a delay of a few days in payment of $5,000 on account of fractional currency sent by the Government to the said bank of Newton, and Hartwell consented thereto, taking from Carter United States seven-thirty notes as security, and holding the receipt issued for the amount until it was paid. Several times afterward Hart-well favored Carter in the same way.
    
      V. About the 1st of December, 1866, Carter represented to Hartwell that he needed a loan of about $50,000 for a few days, for which he would give Hartwell ample security, and Hart-well made the loan to him of money of the Government taken from the subtreasury. Under various pretexts Carter obtained from Hartwell, in the same month of December, money of the Government to the amount of about $300,000, all of which was returned by Carter on the last day of that month, but with the understanding that he must have it again on the 1st of January. In the month of January, 1867, Hartwell lent to Carter, of the money of the'Government, about $500,000, which was returned at the end of that month, but with the understanding that Carter would need about the same amount again for a few days, and he received it from Hartwell in the first days of February. About the 1st of February Hartwell obtained knowledge that in loaning the Government money to Carter he was violating a law of the United States, and was liable to criminal prosecution and punishment, and he gave Carter to understand that that month would be the last that Mellen, Ward & Co. would receive the money of the Government with his consent, and that if the money was not then returned he would deliver himself up to the United States-marshal. Before the 7th of that month. Hartwell told Carter that that money-must be returned by the 22d of the month, and Carter agreed that it should be so returned. Between the 7th and 12th of February Hartwell informed Carter that he had decided to have a special examination of the funds of the subtreasury on the 1st of March, and that every dollar must be returned; that he (Hartwell) would not carry the loan on beyond that time, and at that time would inform the chief clerk about the transactions, and if the chief clerk should think it best to continue the loans he«could do so; that he (Hartwell) would not take the responsibility further. Soon after this Hartwell, for the purpose of enabling Carter to raise money to repay the loans which he had made to Carter, gave up to the latter all the collateral securities which he had received from Carter, upon Carter’s assurance that the money should all be returned.
    YI. On the morning of the 28th of February, 1867, Mellen, Ward & Co. had of the moneys of the Government which they had received through Hartwell in the month of February the sum of 1940,000. On that day Carter paid to Hartwell at the sub treasury the sum of $210,000 in bills or currency, and $150,000 in checks on banks, toward said amount; and Hart-well received on that day $580,000 in gold-certificates, in the manner hereinafter set forth ; which certificates had been issued by the Treasury of the United States, under the authority of the fifth section of the 11 Act to provide ways and means for the support of the Government,'^approved March 3, 1863, the form of which certificates was as follows :
    “ It is hereby certified that -thousand dollars have been deposited with the assistant treasurer of the United States in New York, payable in gold at his office to the order of-.
    “New York, December 1, 1869.”
    YII. At the time the $580,000 of these certificates were delivered to Hartwell, the assistant treasurer at Boston was authorized to redeem, in gold, certificates of that description at the subtreasury in Boston. Those of the denomination of $5,000 were indorsed in blank by the person to whose order they were on their face made payable; and such certificates of all denominations passed current in business transactions by delivery, and were received by the collectors of customs for duties, and were paid by them into the subtreasury the same as gold.
    VIII. During the year 1866 and the early part of 1867 the Merchants’ National Bank of Boston, by contract with Mellen, Ward & Co., took from them, at sundry times, amounts of gold, purchasing the same at $125 currency for each $100 in gold, with the right in Mellen, Ward & Co. to repurchase the gold at the same rate, upon their paying the bank a premium equal to 6 per cent, interest per annum on the currency so delivered. The transactions of this kind between Mellen, Ward & Co. and the Merchants’ Bank prior to February 22,1867, were numerous, and aggregated hundreds of thousands of dollars.
    IX. On the 22d of February, 1867, the said Carter represented to John K. Fuller, the cashier-of the Merchants’ Bank, that Mellen, Ward <& Co. had an order to buy some four or five hundred thousand dollars, gold, and asked him if the bank would take so large an amount on the same terms as theretofore. Fuller, owing to the largeness of the amount, said he would refer the matter to the president of the bank, Franklin Haven, who, upon ascertaining from the cashier that the bank could take so large an amount without interfering with its regular discounts, authorized the cashier to take the gold. On the 23d of February the cashier notified Carter of the president’s decision, when Carter said he would telegraph to New York and have the gold sent forward. In this interview Garter said that the parties for whom the gold was to be bought, he believed, kept an account at the State Bank, and that the State Bank would pay for it.
    X. On the 24th of February Carter went to the Merchants’ Bank and informed Fuller that $200,000 of the gold which the Merchants’ Bank had agreed to purchase was at the Second National Bank, Boston, which the Merchants’ Bank could receive from that bank on paying to it $250,000 in currency; and that, instead of receiving gold coin from New York, it was in gold-certificates. Before going to the Second National Bank Fuller made known to Haven, the president, that, instead of gold, they were to receive gold-certificates. Haven stated that he was not familiar with gold-certificates, and charged Fuller to be particular that they were all right, and said he had better take them to the subtreasury for examination, to satisfy himself that they were so. Fuller went to the Second National Bank, and on paying $250,000 in currency, received from that bank forty gold-certificates, of $5,000 each, which he took to the subtreasury and presented to the cashier, stating that they had come on from New York, and he wished to know if they were all genuine and correct. The cashier examined them, and pronounced them all right, when Fuller returned to the Merchants’ Bank and gave the certificates to the paying-teller, by whom the amount was added to the gold of the bank. On the 25th of February Garter again went to the Merchants’ Bank and informed Fuller that there was at the Second National Bank another amount of $200,000 of, gold-certificates, which Fuller could receive on paying $250,000 currency; which amount Fuller paid to that bank, and received the certificates, and took them to the subtreasury cashier as before, who examined them and pronounced them all right; and Fuller then took them the Merchants’ Bank and handed them to the paying-teller, who added the amount to the gold of the bank.
    XI. At the time of these transactions between Mellen, Ward & Co., the Merchants’ Bank, and the Second National Bank, gold- coin and gold-certificates were worth in the Boston market $140 currency for every $100 gold; and Mellen, Ward & Co. paid to the Second National Bank the difference between that rate and the rate which the Merchants’ Bank paid, to wit, $125 currency for every $100 gold delivered, as aforesaid, by the Second National Bank to the Merchants’ Bank.
    XII. About a week previous to the 28th of February, 1867, the said Carter went to the State National Bank of Boston, and said to Charles EL Smith, the cashier of said bank, that he had been employed by the United States assistant treasurer in Boston to make an exchange of gold-certificates for gold coin, and that he expected to have the certificates a.t the Merchants’ National Bank of Boston within a short time; and he asked said Smith if he would certify the checks of Mellen, Ward & Co., at the rate of $125 in currency for $100 in gold, on receiving the gold-certificates as security for the same; and said that the checks so certified would not be presented at the State Bank for payment or pass through the clearinghouse; but that he (Carter) would take them up at the Merchants’ Bank from the proceeds of the sale of the gold coin, and that he had made arrangements with the Merchants’ Bank to that effect. Smith told Carter that on those conditions he would certify Mellen, Ward & Co.’s checks. At this interview Carter stated that it would be necessary to deposit the gold-certificates at the subtreasury for examination, and that Smith was to have a receipt from the cashier at the subtreasury for them; and Carter then gave as a reason why the gold-certificates were to be exchanged for gold at the sub-treasury that the subtreasury had a large amount of gold coin, and by exchanging it for certificates it would be more convenient.
    XIII. On the 28th of February, 1867, about a quarter before 2 o’clock p. m., Carter went .to the State Bank, and said to Smith that he was ready to make the arrangement which he had proposed, and requested Smith to go with him into the Merchants’ Bank. Carter and Smith went together to that bank; and on going into the bank they went to the desk of the cashier, Fuller Carter said, u We have come to take the gold-certificates. Mr. Smith will certify the checks on receiving them; ” and Smhjh stated that he would pay for an amount of gold he was to receive, and would certify Mellen, Ward & Co.’s checks as good after receiving and counting the gold-certiñcates. Carter then produced two checks, one for $250,000 and one for $275,000, which Smith certified. Fuller reguested Carter and Smith to step to the teller, which they did; when- Fuller said to the teller that the cashier of the State Bank had come in to receive and pay for some gold. The teller handed Fuller the certificates, and Fuller counted them, and said there were eighty-four certificates — four more than were wanted. Smith replied that the checks which he would certify called for eighty-four. Fuller than handed to Smith the eighty-four certificates, of $5,000 each, and Smith counted them, and then delivered the •certified checks to Fuller; and the certificates were taken away by'Smith.
    XIV. The said checks, when certified, were in the words and figures following, to wit:
    275,000 dolls. cts. Boston, Feb. 28th, 1867.
    State National Bank, pay to J. K. Fuller, cash., or order, two hundred & seventy-five thousand dollars & TfTg.
    MELLEN, WARD & CO.
    .(Written across the face:) Good.
    C. H. SMITH, Gash.
    
    $250,000. Boston, Feb. 28th, 1868.
    State National Bank, pay to J. K. Fuller, cash., or order, two hundred & fifty thousand dollars T-0 0-.
    MELLEN, WARD & CO.
    (Written across the face :) Good.
    C. H. SMITH, Gash.
    
    XV. When the eighty-four certificates were delivered by Fuller to Smith, Carter and Smith went together to the assistant ■treasurer’s office, and Smith laid the package of certificates on the ledge at the opening in the cashier’s desk through which •money is passed to the cashier. When Smith laid the certificates down on the ledge, Carter took them and pushed them through the opening to Hartwell, the cashier, and Carter said to Hartwell," “We wish to deposit this money on account of the gold-certificate transactions,” and asked Hartwell to give a receipt for the same. Hartwell asked him, “ In what form ? ” Carter replied, “ In the usual form.” Hartwell then took the Certificates, turned to his desk, and wrote a receipt, which he passed out to Carter, and Carter banded it to Smith. The receipt was in the following words and figures:
    United States Treasury, Boston.
    Deposited by Mellen, Ward & Co., of Boston, on acct. of deposit of gold-ctfs. Amount, four hundred twenty thousand dollars, the same to be exchanged for gold-ctfs. or its equivalent, upon their order, on demand.
    J. F. HARTWELL, Or.
    
    Date, Feb. 28th, 1867.
    On examining this receipt, when Carter handed it to him, and finding it made payable to Mellen, Ward & Co., or order, Smith asked Carter why it was made payable so, instead of to him, (Smith.) Carter replied, Because he (Carter) was the party engaged to make the transaction; but that he would indorse the receipt over to Smith, which he did on the spot by writing on the back of it, a Pay only upon the order of C. H. Smith, cash. Mellen, Ward & Co. Boston, Feb. 28, 1867.”
    When this indorsement was made, Carter and Smith left the subtreasury, and Smith went to the State Bank.
    XYI. About a quarter past 2 o’clock p. m. of the same day Carter went again to the State Bank, and stated to Smith that a further amount of gold was at the Merchants’ Bank, which he wished to arrange in the same way; and thereupon Smith went with him the second time to the Merchants’ Bank, and certified as good a check of Mellen, Ward & Co. on the State National Bank for $75,000 and gave it to the teller of the bank, and received from the teller $10,000 in gold-certificates and $50,000 in gold coin ; which coin was immediately afterward exchanged elsewhere by Carter, or one of his partners, for gold-certificates, which were delivered to Smith, making in all $60,000 of gold-certificates received by Smith through the said Mellen, Ward & Co. for $75,000 certified by him; which check was in the words and figures following, to wit:
    $75,000.] . • Boston, Mb. 28th, 1867.
    State National Bank, pay to gold, or bearer, seventy-five thousand dollars. . .
    MELLEN, WARD & CO.
    (Written across the face :) Good.
    C. H. SMITH, Gash.
    
    
      XVII. Immediately after this second visit of Carter and Smith to the Merchants’ Bank, Smitli went with Carter to the Second National Bank, where he certified as good a check of Mellen, Ward & Co. on the State National Bank for $125,000, and received from the Second National Bank gold-certificates to the amount of $100,000.
    XVIII. Having in his possession $160,000 in gold-certificates, which he had received, as stated, after the deposit in the sub-treasury of the $420,000, Smith again went with Carter to the subtreasury to make a deposit as before. They found the doors closed for the day. Carter said that he could make the deposit, and Smith handed him the certificates, and Carter went into the treasury, leaving Smith outside, and in a few moments returned to Smith with a receipt signed by Hartwell, but not as cashier. Smith objected to it on that account, and Carter returned with it into the treasury and brought it back to Smith signed as Smith requested, and Carter immediately there indorsed the same over to Smith as cashier. This receipt and the indorsement thereon were in the words and figures following:
    United States Treasury, Boston.
    Deposited by Mellen, Ward & Co., of Boston, on acct. of gold-ctfs. deposited. Amount, one hundred and sixty thousand dollars, to be exchanged for gold-ctfs., or its equivalent, on demand.
    J. F. HARTWELL, Or.
    
    Date, Feb. 28th, 1807.
    (Indorsed:) Pay only to the order of O. H. Smith, cash.
    MELLEN, WARD & CO.
    Boston, Ml. 28, 1807.
    XIX. The currency and checks which Carter paid to Hart-well on said 28th of February, as aforesaid, were paid at various times during the business hours of the day, previous to 2 o’clock p. m.; and of the gold-certificates, $420,000 were delivered at 2 p. m. and $100,000 about 2.30 p. m. All the currency, checks, and gold-certificates received by Hartwell that day were placed by him, at or soon after receiving them, in the vault of the subtreasury, and the two parcels of gold-certificates, to wit, $420,000 and $100,000, were by him put together, making a gross sum of $580,000 in gold-certificates.
    
      XX. It was customary, at the close of every month, for the assistant treasurer at Boston to forward gold-certificates to Washington; and the amount forwarded on each occasion was charged over on the books, and the certificates were canceled before being sent there by express. The amount sent at the close of any month was at Hartwell’s discretion, large amounts being often retained at the subtreasury; and the $580,000 sent on the 28th of February, 1807, as hereinafter set forth, were not all of the gold-certificates then in the subtreasury.
    A few moments after Hartwell received the last of the $580,000 in gold-certificates, as aforesaid, and after the sub-treasury had been closed for the day, he directed the bookkeeper to charge them over for the purpose of forwarding them to Washington; and about half an bour after doing so, in response to an inquiry by the chief clerk of the subtreasury, Hartwell informed him that the amount of gold-certificates going that night to Washington was $580,000.
    XXI. When Smith certified the cheeks of Mellen, Ward & Co. on the State National Bank, as above stated, Mellen, Ward & Co. had no funds in that bank to meet the same; and Smith was led to certify said checks in the belief, based on Carter’s assurances, that the gold-certificates would come into his possession, and that when he delivered them at the subtreasury and obtained receipts for the amount of them, he could the next day get the gold in return on presenting the receipts at the sub-treasury, and that the gold in the mean time would be as safe in the vaults of the subtreasury as in those of the State Bank. It does not appear that said Smith had any knowledge or suspicion of any improper use of the moneys of the Government by Hartwell or Carter, or of any fraudulent means resorted to by Carter to replace the money in the subtreasury.
    XXII. When, about the middle of February, Hartwell informed Carter that he expected a detailed examination of his accounts on the 1st of March, and that all the money must be back for that examination, Carter promised that it should, provided it should be returned to him the day following the examination. At the time of this conversation Carter had not formed any definite plan for returning the money. A day or two afterward he submitted his plan to Hartwell, which was as follows: He proposed to buy gold-certificates in New York, bring them to Boston, and borrow money upon them of the Merchants’ Bank; and be then proposed to get Smith, the cashier of the State Bank, to pay for these certificates, and leave them with Hartwell during the examination. Hartwell made no objection to this plan, but bethought Smith would not do it. The plan was carried into effect by Garter, as hereinbe-fore set forth; but Hartwell had no agency in carrying it out, except to receive the moneys and gold-certificates paid to him on the 28th of February, as aforesaid; and he had no actual knowledge of the proceedings taken by Garter on that day to obtain said gold-certificates. When Garter and Smith deposited the $420,000 of gold-certificates in the subtreasury as aforesaid, Smith did not know Hartwell, nor did Hartwell know’ Smith, or know that Smith was connected with any bank or money institution.
    XXIII. On the 28th of February Hartwell told Garter that .if he should return all the money, and Hartwell could get the consent of George D. Whittle, the chief clerk, Garter should have the money after the examination.
    XXIV. Between I and 5 o’clock of that day Hartwell took Whittle into the vault of the subtreasury, and for the first time made known to him that he had loaned the money of the Government to Mellen, Ward & Co., and said to him that every dollar of it had been returned. Soon afterward Hartwell gave to Whittle, in the assistant treasurer’s room, a fuller account of the transactions and the return of the money. He told Whit-, tie that Garter expected the money would be paid back to him (Garter) the following morning; but he (Hartwell) had informed Garter that if it went out again it must be with Whittle’s consent. Hartwell then asked Whittle if he would allow the money to go out again; to which the latter replied in a decided negative. While this conversation was passing, Garter sent for Hartwell from the messenger’s room in the custom-house, and on Hartwell’s seeing him there, Garter asked if Whittle had given his consent that the money should go out again. Hart-well informed him that Whittle could give no answer until the cashier’s checks were paid; conveying to Garter the impression that if those checks were made good, the answer would be favorable. Garter’s reply was that they should be made good the next morning. The checks referred to were those for $150,000, which Garter had that day paid in, as above stated. On the morning of the 1st of March, about 9 o’clock, they were made good. About half past 10 o’clock tbiat morning Hartwell informed Carter that be bad resigned bis place in tbe subtreasury, and bad deceived bim in order that tbe money should be returned. On tbe same day Smith presented at tbe sub treasury tbe receipts which Hartwell bad given Mellen, Ward & Co. tbe previous day, and demanded payment thereof, which was refused.
    XXV. On tbe evening of tbe 28tb of February, after Hart-well bad made confession to Whittle, as aforesaid, be and Whittle left tbe subtreasury together for their homes. When they bad gone a short distance from tbe subtreasury Whittle said to Hartwell, “ I wish we bad sent those certificates to Washington to-night.” Hartwell produced, from tbe side-pocket of bis coat, a package of gold-certificates, and said, “ I have got them with me.” Whittle made some exclamation of surprise, and told Hartwell to go back to the office with bim, which Hartwell did. Whittle asked Hartwell what be bad taken them for, and Hartwell answered, “ I don’t know.” Whittle took the certificates from Hartwell and canceled them and did them up, and took them to tbe express-office, and sent them to tbe Treasurer of the United States at Washington, without any letter or schedule of any kind accompanying them. The certificates so sent were one' hundred and sixteen in number, of $5,000 each.
    
      Mr. O. B. Goodrich for the State National Bank, and Mr, Sidney Bartlett for the Merchants’ National Bank:
    The State National Bank of Boston has a legal and an equitable right to recover the value of the gold-coin certificates, in and by their petition sought to be recovered, which have been identified and traced into the possession of the Treasurer of the United States, in a canceled condition.
    Neither Smith nor Carter acquired any right, title, or interest in or to the gold-coin certificates which they or either of them could or can set up against the State National Bank of Boston. The certificates which Smith or Carter, on the 28th of February, 1867, put into the possession of Hartwell, clerk and cashier in the office of the assistant treasurer at Boston, and which subsequently went into the possession of the United States, had been obtained by them on the same day from the Merchants’ Bank by an unauthorized and fraudulent application of the money and credit of tbe State National Bank. Tbe possession so acquired by fraud did not deprive the bank of its right to follow the money and the certificates, in which it had been invested, so long as they remained in the hands of Smith or Cartel*, or after they reached the possession of the United States, unless they can show that their reception was under a state of facts upon which they can say that, at law and in equity, they may, in justice and in good conscience, retain them against the State National Bank, notwithstanding the fraud. The United States are not and cannot be regarded bona-fide purchasers for a valuable consideration of the gold-coin certificates. The wrongful and fraudulent acts by which the certificates were obtained by Smith and Carter did not divest the bank of its property or of its right to follow it in the possession of the United States. The circumstances clearly shown by the evidence under which the certificates were canceled and forwarded to the Treasurer of the United States do not authorize them to say, in contemplation of law, that they are purchasers or holders of the certificates, and as such have .a right to retain them against the true owner. The United States received possession of the certificates without consideration, without parting with any right or in any way changing their position. ^ífoney fraudulently taken from the owner by his clerk, and paid into a bank to a defaulting teller therein, at his request, for the purpose of enabling him to exhibit it to the bank officers as money of the bank, although iff examining and settling the accounts of the defaulting teller, and before the discovery of the embezzlement, it was received and counted by different officers of the bank as money of the bank, and treated as such, and put to his credit on the books, and afterward returned to his custody; and the owner may maintain an action against the bank to recover back the same. (Skinner v. Merchants’ Banlc, 4 Allen, 290 ,* Atlantic Bank v. Merchants'1 Bank, 10 Gray, 532.)
    “An action for money had and received may be maintained whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by the ties of natural justice and equity to refund.” (Oarey v. Curtis, 3 How. S. C., 249.) Page 255, (in a dissenting opinion upon other points,) Mr. Justice Story says: “It is an entire mistake to say that the action of assumpsit for money had and received is founded upon a voluntary, express or implied,, promise of the defendant, or that it requires privity between the parties ex contractu to support it. The rule of the common law has a much broader and deeper foundation, whenever the-law pronounces that a party is under a legal liability or duty to pay over money belonging to another, which he has no lawful right to exact or retain from him. There it forces the promise upon him, in invitum, to pay over the money to the party entitled to it. It is a result ot the potency of the law, and m 'in no shape dependent upon the will, or consent, or voluntary' promise of the wrongful possessor.” “If the defendant be under an obligation from the ties of natural justice to refund, the law implies a debt, and gives this action, (money had,) founded in the equity of the plaintiff’s case, as if it were upon a contract. In a word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money. {Moses v. Maeferlan, 2 Burr., 1008, 1012; Ciarle v. Shea, Cowp., 197, 199, 200; Buller v. Harrison, Cowp., 565.)
    
      uAssumpsit for money had and received is an equitable action, to recover back money which the defendant in justice ought not to retain, and it may be said that it lies in most, if not all, cases where the defendant has moneys of the plaintiff which, ex eqiio et bono, he ought to refund. (Nash v. Towne, 5 Wall., 702; Chillón v. Broiden, 2 Black, 460.)
    It does not lie with one to claim property through the fraudulent act of another, whether as his agent or partner, without being affected by that act the same as if it were his own. We speak in a civil, and not a criminal sense. (Olmstead v. Hotailing, 1 Hill, N. Y., 318.) In the case of Castle v. Bullard, (23 How., 189) the court refer to and approve the doctrine of the case cited from 1 Hill. 1
    The certificates went into the possession of Julius F. Hart-well, an agent or servant of the United States, on the 28th of February, 1867, for which he issued, in his official capacity, “ deposit receipts.” The possession of Hartwell, so acquired, of certificates which had' been obtained from the Merchants’ [National Bank, with the money and credit of the State National Bank, did not divest the bank of its right to follow the certificates ; it did not confer upon Hartwell a right to retain or withhold them from the true-owner. As matter of fact, Hart-well agreed with Carter, prior to tbe 28th of February, 1867, that the funds which he might procure to cover up the embezzlement should be returned the next day.
    The defendant receives a sum of money deposited upon an undertaking that, in a given event, the same amount of money— not the same identical coin or notes which have been paid— should be forthcoming to repay the plaintiff. In the mean time, if the defendant expends the money paid to him for other purposes, it is at his peril. He has agreed that, when the event has happened, he should be in the same position as if he still held the amount deposited for the plaintiff’s use. (Londes-loorough v. Moioatt, 28 Bug. Law and Eq. Rep., 124.)
    If plaintiffs furnished funds to the agent upon certain conditions,' and the company claim to retain the funds, they thereby ratify the act of the agent in solido. These cannot be subdivided; they must either adopt it or reject it intoto. (White-well v. Warner, 5 Wash., 450,20 Vt.) If you adopt De Baume as your agent on your own behalf, you must adopt him throughout, and take his agency cum onere. (FLovil v. Fade, 7 East, 164, 166.)
    When one person assumes to act as the agent of another without authority, the person for whom he assumes to act cannot obtain the benefit of his agency in part only and reject it as to the residue of the transaction. (Benedict v. Smith, 10 Paige, 127, 130.)
    A ratification of a part of an unauthorized transaction of an agent, or one who assumes to act as such, is a confirmation of the whole. (Farmers’ Loan Company v. Walworth, 1 Com. N. Y., 433.) Page 447: They intended to adopt the act of the clerk as far as it was beneficial to themselves, and to reject the residue. When they confirmed the agency in part, they ratified the whole transaction. (Story on Agency, § 250; Qlyn. v. Falter, 13 East, 510, 515; Taylor v. Green, 8 C. & P., 316.)
    The certificates, at the time they were placed with Hartwell, belonged to the petitioners; they were charged with a trust, with an equity in their favor; they were received from the Merchants’ Bank by Smith, who delivered certified cheeks therefor; they were carried to the office of the assistant teas-urer, and Smith laid the package containing the certificates at the opening in the cashier’s desk through which money is passed in to the cashier at his desk. Mr. Carter said to him, “We wish to deposit this money on account of the gold-certificate transaction,” and asked him to give a receipt for the same. The cashier took them, turned to his desk and wrote a receipt, which he passed out to Carter, and Carter handed it to Smith.
    It is not competent for the United States, in a court of justice and equity, under these circumstances, to resist the claim of the petitioner, by saying we adopt the reception of your funds by our servant Hartwell, but we reject the conditions upon which he received them. (Story on Agency, §§ 229, 231, 437.) The United States cannot resist the claim of the petitioners upon the ground that Hartwell, an officer of the ■Government, had, prior to the 28th of February, 1867, embezzled the funds of the United States, as shown by the case. (United States v. SarUoell, 6 Wall., 385j see cases cited supra.) Julius F. Hartwell, prior to the 28th of February, 1867, had knowledge of and assented to a plau devised by Carter, which. Hartwell considered for one night and thereupon assented to it, by means of which the certificates sought to be recovered were obtained in fraud of the State National Bank, and put into the hands of Hartwell, for .which, as cashier, he issued “deposit-receipts.” This reception of the certificates by Hart-well did not confer upon him or upon the United States a right to withhold them from the true owner. The gold-certificates were not the property of Carter or of Mellen, Ward & Co. It cannot be urged with propriety, upon the evidence before the court, that Hartwell ignorantly or innocently supposed that the certificates belonged to Carter, and received them from him as such. Carter, in his testimony, says: “About the middle of February Hartwell told me he expected an investigation of his accounts on the 1st of March. He said all the money must be back for that investigation. At this time I had not formed a definite plan for .returning the money. A day or two after I submitted my plan to Hartwell. My plan was as follows: I proposed to buy gold-certificates in New York; borrow money on them of the Merchants’ Bank. I proposed to get Mr. Smith, the cashier of the State Bank, to pay for those certificates, and leave them with Mr. Hartwell during the examination. Mr. Hartwell made no objection to the plan, but he thought Mr. Smith would not do it.. No modification of the plan was suggested or agreed upon. The plan was carried into effect. The plan I proposed involved the certification of the checks of my firm by Charles H. Smith, the cashier of the State National Bank. We did obtain such certification, to the amount of $600,000, on the 28th. of February, 1867. (Supra.} It was necessary Mr. Smith should not have any idea of any defalcation in the subtreasury; on this account I deceived him.” The -witness then states the arrangement with Smith, and proceeds to say : “ The whole matter was talked over with Hartwell, in all its details, before procuring the deposit of certificates in the subtreasury, and he fully understood and never dissented therefrom. At the time the gold-certificates were deposited with Hartwell in the subtreasury, I remarked that I would deposit them with him, and wanted to draw the gold to-morrow. 1 Will you please give me a receipt for them ? ’ He said, ‘In what form %’ 1 replied, ‘ In the usual form.’” The witness proceeds to say : “ Hartwell gave two receipts; one was indorsed to Smith, while Smith, Hartwell, and myself were standing together at the counter of the subtreasury; the other was. handed to him in the rotunda. . I told Smith he could get the gold upon the certificates the next day by presenting the receipts at the subtreasury. I did tell Hartwell that I had told Smith that the gold-certificates should be given to hirn the next day, and the said Hartwell agreed that the gold should be given to me, and so-given to said Smith.” (Supra.) The witness says he did not communicate to Smith that there was a deficiency in the sub-treasury, or that he wanted, gold to supply any deficiency. His arrangements and plan with Hartwell were not communb cated or known to any officer of the State or of the Merchants’' Bank. The witness testifies: “I told Hartwell I would not try to return the $600;000, unless he would faithfully promise me that he would take care of any person of whom I might borrow the money. He assured me he would do so.” Julius F. Hartwell, a witness introduced by the respondents, confirms the statements of Carter. Hartwell says: “I have learned that -the plan under consideration by me for one night was used by. Mellen,.Ward & Co. in the returning of the money.” He says this plan was presented to him about the 24th of February. He also says that various plans had been suggested of getting back the money before the plan which finally succeeded. He says that he had promised Carter, under certain provisions, that he should have the money back the next day. He also says that Carter, on previous occasions, had returned the-money for each monthly examination in some form. He says-it was returned in all cases with the agreement that it should go back after examination, adding, under certain provisions, which he does not state. He says it was so returned in each-case.
    George D. Whittle says : “ I don’t think that he (Hartwell) said he got the money in for an examination at all. He told me that he had promised, it should go out again. He said that he had agreed with Carter that after the examination of the-accounts he would let him have this money again, but that it was not his purpose to do so. He had made them this promise in order to obtain the money, and it was his purpose-to confess to me as soon as the money was in the vault.” The-witness then states they (Hartwell and himself) left the subtreasury together, and on their way up he discovered that Hartwell had the certificates in his pocket, and gave them to-Whittle; they went back to the subtreasury. Whittle canceled the certificates and forwarded them to Washington.. There is not any evidence having the slightest tendency to-show that Smith had any knowledge of the transactions between Hartwell and Garter, which had been in operation for several months prior to 28th February, 1867, or of the plan invented by Carter, approved by Hartwell, by means of which their previous embezzlement was to be covered and concealed for the time being. George D. Whittle, chief clerk in the office of' the assistant treasurer at Boston, on the evening of the 28th of February, 1867, in the street, received the certificates from Hartwell, having been informed by Hartwell previous to such reception that he had, prior to the 28th of February, 1867, loaned the funds of the United States to which he had access to Carter; that he had succeeded iu getting back an equal amount, under an agreement to return it to Carter the next day. Whittle canceled the certificates, and forwarded them to the Treasurer of the United States. This reception, cancellation, and forwarding did not divest the State National Bank of its rights ,• did not confer upon the United States any right to hold the certificates against the true owner. Whittle said to Hartwell, if the Government was made whole, he would do everything in his power to protect him from severe punishment.
    
      
      Mr. Richard H. Dana, jr., (with whom was the Assistant Attorney-General,) for tbe defendants :
    If the certificates were the property of either bank, and are so far money as to be the subject of these proceedings, they cannot be recovered as money from the United States. If Hart-well had knowledge that the certificates were the property of the State Bank, that does not affect the United States. He was not the agent of the United States. He was a mere subordinate special officer or servant, having access to funds, but with no power to use, loan, or exchange, or otherwise aid or trade with them. (Act 1846, chap. 90, § 6, 9 United States Laws, 60.)
    He stole a part of these funds and afterward restored them, his master not knowing either of the theft or restoration until afterward. In such case the master is never chargeable, constructively, with the knowledge his servant may have had. The United States has no agents but those established by law. (Floyd’s Acceptances, 7 Wall., 676.) This is not the case of a principal claiming property through the act of an agent. It is the case of a master who finds in his purse or drawer, to which his servant has access, all the funds that ought to be there. If Whittle’s knowledge is material, it must be remembered that Whittle had no knowledge or suspicion that the funds Hart-well had replaced were unlawfully obtained or could be claimed by any one.' His first notion of a possible claim to them was in the afternoon of March 1, at the visit by Mr. Haven, the day after he had canceled and sent off the certificates. As there was no privity between either the State Bank or the Merchants’ Bank -and the United States, the plaintiffs cannot recover unless there was bad faith on the part of the defendants or absence of consideration. The question of consideration is not applicable to a case where the master simply finds in his purse or drawer, to which his servant has access, the same amount of funds which •ought to be there. If the servant had stolen a part and substituted the -money of A, fraudulently obtained, A cannot recover the money, if at all, unless he identified the ^ pieces of money and demanded them of the master before they had become mingled with the master’s funds, and before the master had done any new act connected with the state of his funds. 'The fair result of all the evidence is this :. At 2.30 p. m. of February 28 the United States had in its subtreasury at Boston all the funds that belonged there, and no more. At about 4 p. m. Mr. Whittle,' a special officer or servant of the United States at that treasury, having the custody of these funds under the assistant treasurer, learned that Hartwell, a subordinate special officer or servant of that treasury, having access to the funds, had secretly abstracted a very large amount, some $940,000, and had secretly restored the same. He learned this by Hartwell’s voluntary confession. The nest morning, March 1, this conduct of Hartwell having been reported to the assistant treasurer, a special examination of the funds was made, and the amount in the subtreasury was found to be correct. Hartwell’s resignation was then accepted, and he was allowed to go free, for the time at least, as one who had committed an offense by abstracting funds, but had returned them and made a voluntary confession of his fault. At about 2 or 2.30 p. m. of March, 1, the president of the Merchants’ Bank, with two directors of the State Bank, came to the subtreasury and stated that gold-certificates for $480,000, the property of the Merchants’ Bank, had been taken from it fraudulently the day before, asked if they were not among the funds of the subtreasury, and demanded them as property of the Merchants’ Bank. Several hours before that time Mr. Whittle, according to the rule and custom, had charged off, canceled, and sent to Washington all the gold-certificates which were in the sub treasury at the close of business on the 28th February, being some $1,210,000. Of these $580,000 had been canceled, charged off, and sent on the evening of the 28th February, and the rest on the morning of the 1st March. The certificates which the Merchants’ Bank claimed had been sent with the $580,000. The demand of the Merchants’ Bank was refused. Up to this time neither Whittle nor the assistant treasurer, nor any officer of the subtreasury, (unless Hartwell himself,) knew or suspected that any of the funds replaced by Hartwell were the property of or .would be claimed by any third person. All that Mr. Whittle knew was that Hartwell had lent the funds he abstracted to Mellen, Ward & Co., and that that firm had enabled him to replace them. Somewhere about 2 p. m. of March 1, either just before or just after the visit by Mr. Haven and the directors of the State Bank, Mr. Smith had called at the subtreasury and presented the deposit-receipts of Hartwell. He hoped to get upon the papers tbe gold coin which he understood the subtreasury was to give in exchange for the certificates. ‘His purpose was to get the gold, and with it, or1 from its proceeds, to take up the checks of Mellen, Ward & Oo. which he had certified. He did not demand the certificates as the property of the State Bank, nor did he suppose them to be so. He hoped that.the deposit-receipts would give him the possession of the gold, so that he could take up the checks and close tbe whole transaction of the day before.
    If he had got the gold and sold it, as he might, for $672,000, he would have taken up the checks, ($600,000,) and given the balance to Carter. Mr. Whittle refused to recognize the deposit receipts. If Smith’s act, standing alone, could be construed as a demand by the State Bank for the certificates, it is counteracted by and inconsistent with the attitude of the bank itself on the same day and ever since. Its attitude has always been that of reimdiating the whole transaction of the 28th February, the purchase of the gold-certificates'as well as the certifying of the checks. It has treated Smith’s doings as his personal, private acts, unauthorized by the bank, not binding upon it, and repudiated by it. The Merchants’ Bank delivered the $480,000 certificates under its arrangment with Mellen, Ward & Co. Whether that arrangement was a loan on gold security or a contract to sell gold at a fixed rate, it was carried out in the manner agreed upon. The bank agreed to take from Mellen, Ward & Co., instead of $600,000 currency, their checks for that amount, certified in a certain manner. Mellen, Ward & Co. gave them those checks, certified as agreed. The bank was entirely satisfied with them, and gave them up the gold certificates and coin. This was a completed transaction. There was no fraud or misrepresentation upon or to the Merchants’ Bank as to that transaction, and that bank has never repudiated it. It demanded payment of the certified checks, kept them as cash in the cashier’s drawer for several days, and then entered them in their books as a debt of the State Bank, sued that bank on the checks, and, as a purchaser of the gold-certificates, has compromised that case by an equal division, thereby affirming its position, and is now aiding the State Bank to recover the certificates from the United States as the property of the State Bank. It was not Hartwell’s purpose to use the $940,000 which Carter paid him, or any part it, to make a false exhibit to examiners as and for funds of the United States, keeping it all the while in his own possession and control. On the contrary, his purpose was to put the whole of it into the sub treasury as property of the United States, confess his embezzlement, and put the whole beyond his own control. This purpose he carried out effectually. Carter knew that Hartwell intended to put the whole into the sub treasury and confess his embezzlement to Whittle, and that his (Cartels) getting any of it out of the subtreasury again was a matter beyond Hart-well’s control, and depended upon whether Whittle would be willing to commit a new act of embezzlement. Smith swears that he knew nothing of any purposes of Hartwell or Carter in the matter.
    The present case, therefore, does not come within the cases of Atlantic Bank v. Merchants’ Bank, (10 Gray, 532) and Skinner v. Merchants’ Bank, (4 Allen, 290,) even if the opinion of the. majority of the court in those cases is good law. (See Bank of Charleston v. Bank of State, 13 So. Car., 291.) These petitions are attempts to obtain from the United States, indirectly, compensation or damages for the alleged wrongful act of its officers or servants. This court can not take jurisdiction. The remedy of the petitioners, if any, is by an appeal to the legislature. (Gibbons v. United States, 8 Wall., 269; Biorgan v. United States, 14 ib., 531; Beybold v. United States, 15 ib., 202.)
    A further objection to the recovery by the .bank is that the $480,000 certificates, which circulate as currency, had been put into the treasury by Hartwell, as such; in payment of a debt, and was treated by the United ^States as cash or its equivalent, and Hartwell’s accounts and funds had been examined and settled, and he treated as having made good his cash. {Bank of Charleston v. Bank of State, 13 So. Car., 291 ; Miller v. Race, 1 Burr., 452.
    It is no objection that the debt they paid was a past debt, or that it was a settlement with a bailee or agent. It is a val-uble consideration. (Bank of Charleston v. Bank of State, 13 So. Car.,.291; Swift v. Tyson, 16 Pet., 1; McCarthy v. Boots, 21 How., 43,9; Williams v. Little, 11 N. H., 66; Le Breton v. Fearee, 2 Allen, 8; Blanchard v. Stevens, 3 Cush., 162; 3 Kent’s Com., 12th ed., 81, and notes.)
    It is no objection that the debt arose in an act of embezzlement. It was,none the less a debt. The principal or master may, as between himself and his agent or servant, treat a fraud or defalcation as a debt.
   Dkake, Ch. J.,

delivered the opinion of the court:

Upon the facts as found in this case there can be no question that the delivery of the gold-certificates and gold coin by the cashier of the Merchants’ National Bank to the cashier of the State National Bank vested all the title of the former in the latter, as was held by the Supreme Court in Merchants’ Banlc v. State Banlc, (10 Wall., 604.) For the purposes of this case we need not inquire whether the property of the State Bank in the certificates was general or special; either is sufficient to enable it to assert, as against the United States, all the rights growing out of its ownership of them.

The certificates received by Smith, the cashier of the State Bank, from the Merchants’ Bank, and those purchased with the gold received by him from the same bank, passed out of his hands into those of Hartwell, the disbursing clerk or cashier at the subtreasury; $420,000 from the former to the latter direct, and $60,000 intermediately through Carter; and all were placed by Hartwell among the moneys of the United States in the subtreasury, and were canceled and sent to the Treasury of the Government. The Government has, therefore, in law, in its possession that which is equivalent to so much money obtained from the State Bank; and the question is whether it is lawfully entitled to hold it as against that bank.

If the transfer of the certificates at the subtreasury from Smith’s hands to Hartwell’s could be regarded as a payment of a sum due to the Government, it could not be reclaimed in this action; but we do not consider that there is any ground for its being so regarded. All the facts go to establish the character of the transaction as a mere deposit by the State Bank.

It is found as a fact that, though the certificates were payable at the office of the assistant treasurer in New York, the assistant treasurer at Boston was authorized to redeem them. It appears, further, that the sole purpose of Smith in taking them to the subtreasury was the entirely lawful one of exchanging them for gold. He left them with Hartwell, instead of calling for their instant redemption, because it was represented to him by Carter that it was necessary to leave them for examination. He took Hartwell’s receipts for them in the belief that Hartwell was officially authorized to give them. And the receipts specified deposits, to be returned on demand.

That the deposits were made by the State Bank is not disproved by the' fact that the receipts were given in the name of Mellen, Ward & Co. This does not preclude the claimant from showing that the certificates were in fact its property. In the presence of Hartwell, when Smith found the receipt for $420,000' made payable to Mellen, Ward & Co., he asked Carter why it was made payable so, instead of to him, (Smith ;) and Carter replied that it was because he (Carter) was the party engaged to make the transaction; but that he would indorse the receipt over to Smith, which he did on the spot. If, therefore, it be considered important to trace to Hartwell knowledge that the $420,000 of certificates were not the property of Mellen, Ward & Co., but of the State Bank, it is shown by these facts. But we do not deem this of vital importance, either as to that sum or as to the $60,000 embraced in the second receipt given by Hartwell. The great point is, not in whose name the receipts were given, but whose gold-certificates went into Hartwell’s hands, and for what purpose they went there; and it cannot be doubted that they all belonged to the State Bank, and all went there for the sole purpose, on the part of that bank, of being exchanged for gold.

That Hartwell was the proper person in the subtreasury to-pay gold-certificates presented there for redemption, cannot be questioned. He was there as the Servant of the Government, to receive such certificates from any one presenting them, and to pay out gold for them. When Smith left the certificates with him, instead of demanding the gold for them at the time, he did nothing illegal; nothing which impaired the .State Bank’s right to demand the gold for them. However fraudulent Hart-well’s intent may have been in receiving, and receipting for the certificates, no such intent was known to or suspected by Smith; and it can have no possible effect in destroying the State Bank’s right to the gold. The great fact remains that they were not paid, and that they passed, canceled, into the Treasury, without the Government’s giving any equivalent, without its yielding any consideration, and without its having any title but that of a possession conferred for an entirely different purpose, which has not been fulfilled; and now the question is whether the claimant may recover here the money for those certificates which should have been paid to it in Boston.

Against its right to recover it is claimed that Hartwell was a defaulter to the Government through his loans to Mellen, Ward & Co., and that the certificates were put there by Mellen, Ward & Co. to replace the money he had lent them. But the fact is that, though he wrote ,the receipts in their name, in pursuance of a previous understanding between him and Carter, which was wholly unknown to Smith, and though Smith, ■on Carter’s explanation, took the receipts with Mellen, Ward ■& Co.’s 'indorsement, yet the certificates -were the State Bank’s property, and not'Mellen, Ward & Co.’s, and were deposited by Smith for redemption, and not by Mellen, Ward & Co. as a payment. That Hartwell was a defaulter conferred not the •slightest right upon the Government to refuse to redeem the certificates; for Smith, at the time of the deposit, was totally ignorant of Hartwell’s defalcation, as was everybody in the subtreasury. Had the collector of the port of Boston that day deposited $480,000 at Hartwell’s desk, there would have been just as much right in the Government to hold that on Hartwell’s account as there was to hold these certificates.

The case, then, stated in its simplest form, is this: that the Government asserts its right to set off the debt due to it from, a defaulting clerk against its debt to the State Bank, when the bank is a total stranger to the clerk’s defalcation. Thus testate it is enough. There is no principle of law which can afford any foundation for such a right.

For the Government it is also contended that this action is an attempt to obtain from it, indirectly, compensation or dam ages for the wrongful acts of its officer; and we are referred to decisions of the Supreme Court to the effect that this court cannot take jurisdiction of such an a'ction. The rule laid down by that court is of course well known to us, but it has no application here. The claimant’s right of recovery does not rest upon any wrongful act of any officer of the Government. When Hartwell receiyed the certificates, it was not a wrongful act; when he gave a receipt for them, it-was not a wrongful act; when he charged them off on the books as certificates to be sent to Washington, it was not a wrongful act; nor was it a wrongful act in the chief clerk to cancel and transmit them to Washington; for when Smith deposited them in the sub treasury, the claimant ceased to have any property in the particular certificates deposited, and in lieu thereof stood the obligation of the Government to pay the claimant the amount of those certificates in gold coin; which obligation is to this day unfulfilled. The fallacy of the defense lies in the assumption that that obligation is canceled by the fact that the servant of the Government into whose hands the certificates passed, was, when he received them, a debtor of the Government. Upon this fact is based the unwarrantable attempt to apply the claimant’s money — for, in legal effect, the certificates were money — to pay that clerk’s defalcation. It is needless to comment further upon so untenable a defense.

The true character of this action is that of a common-law action of assumpsit for money had and received. The principles and rules applicable to that form of action belong to the elementary knowledge of the bar and the courts. In its spirit and objects it has been likened to a bill in equity, and it lies wherever the defendant has received or obtained possession of the money of the plaintiff, which in equity and good conscience he ought to pay over to the plaintiff. And in order to support this action there need be no privity of contract between the parties, except that which results from one man’s having another’s money, which he has not a right conscientiously to retain. The subject of the action must either originally have been money or that which the parties treated as money. And in regard to things treated as money, the action may be supported by evidence of the defendant’s receipt of bank-notes, or promissory notes, as these gold-certificates were, or a note payable in specific articles; and■ where the money was delivered to the defendant for a particular purpose, to which he refuses to apply it, he cannotfipply it to any other, hut it may he recovered hack hy the depositor, as money had a/nd received for his use. (Greenl. Ev., §§ 118, 119.) These are the only points in regard to this form of action to which, for the purposes of this case, we need to refer.

Tested by them, were this case between individuals, there could hardly be a question of the right of the plaintiff to recover. In our judgment, the right of the claimant to recover here is equally clear. “The defendants have $480,000 in gold coin, which, in equity and good conscience, they ought to pay over to the claimant, and for that sum judgment will be rendered, payable in such coin.

Nott, J.,

concurring:

In this case I fully agree as to the legal principles laid down in the opinion of the court, and *in the conclusion which the court has reached. But there is an additional ground on which to place the case, that, in my opinion, relieves it from its only doubts, and secures to the claimant exact justice.

In 1863 the Government of the United States saw fit to go into a banking business, in which it received people’s money on deposit, provided it were gold coin of the amount of $20, and gave them in evidence thereof certificates of deposit, popularly known as gold-certificates, and “ retained ” the coin in the Treasury “for the payment of the same on demand.” (Act March 3,1863, 12 Stat. L:, p. 709, § 5.) These certificates passed from hand to hand, and entitled the holder to go to the counter of the treasury-in New York or Boston, present his certificates, and draw the coin which they represented.

This case is based on the theory of an implied contract for money had and received. But the gold-certificates themselves formed an express contract; and the covenant of the United States, as evidenced by that contract, was to pay what the cashier of the State Bank in fact came to receive — gold coin. He performed the only obligation cast upon the bank, that of presenting the certificates for payment; and the Government is bound to perform the remaining obligation cast upon it, that of paying the coin, unless it can show a stronger title or superior equity.

The illustrative analogy by which the distinguished counsel for the Government endeavored to obviate this was that of a servant who, having abstracted money from his master’s trunk, steals other money from a third person and replaces the first with it in the trunk. It is argued that as money has no ear-mark, the third person could not maintain an action against the master to recover back the money stolen from the one and refunded to the other, and that the position of the Government here is the position of the master there. If the analogy were true, I should hold the conclusion sound. But the real analogy, I think, is that of the teller of a bank who abstracts funds from the bank and applies them to his own purposes, and then when a depositor comes in to make a deposit, fraudulently refrains from crediting Mm with the amount thereof, and' applies the money to making good his own defalcation.

Hartwell was not a' servant in the sense of the defendants’ illustration, but an agent authorized by the master to receive gold-certificates and pay them. The certificates were not money in the sense of the illustration, and were not treated as money by either party when they were deposited. On the contrary, they were contracts through which the obligor undertook to pay money, and the holder, the obligee, expected to receive it. Apart from the form which Garter and Hartwell endeavored to give to the transaction, the one by the sham of picking up the certificates from the counter and pushing them inside the rail, and the other by the further sham of writing a receipt in the name of Mellen, Ward & Go., instead of paying out the gold, the case was nothing more than that of a depositor going with a check to a bank-counter, giving up the check in the expectation of receiving cash, and finding his check drawn, the amount charged to him, but the money placed in the pocket of the paying-teller instead of in his own hands.

In this case the form which the conspirators sought to give to the transaction does not impart to the Government a title or an equity. If the United States had lost by reason of the deposit being received as Mellen, Ward & Co.’s — if they had parted with value or given up securities or lost a right of action, then the bank cashier, by standing silent, would perhaps have concluded his bank froih now asserting its title. But in the absence of an equitable estoppel, the form which the Government cashier contrived to put upon the transaction could not work a transfer of title to Mellen, Ward & Go. from the State Bank, nor enable the firm to theoretically pay their debts to Hartwell, and Hartwell to pay his to the Government. The mistake (much less the fraud) of the Government cashier could not transfer either title or possession to a third person, nor affect the legal relations existing between them. Whether the bank had title or held the certificates as security for their advances is immaterial, for it had possession and the right of possession, and the right to turn the certificates into gold. They were delivered with that intent to the proper agent of the United States, and the United States received them, in contemplation of law, for the only lawful purpose for which their agent could receive them, and his secret fraud could not defeat the lawful purpose of both the principals.

The petition should be amended accordingly, and judgment should be rendered for the amount of the certificates, payable in gold coin.

Losing-, J.

I concur in the judgment in this case.

Eichabdson, J., though not present in court at the time of its delivery, concurred in the opinion read by the Chief-Justice.

In the suit of the Merchants’ National Bank v. The United States, heard at the same time, the judgment of the court was that the petition be dismissed.  