Page:Federal Reporter, 1st Series, Volume 1.djvu/839

 IH BB PBANKLIK M. KBTCHDM. 881 �der the application of the ordinary rule of law in the par- ticular case inequitable and unjust. �The suggestion, in Ex parte Apsey, that no contract arises, cannot be understood as basing the objection merely on the circumstance that there is no promise to repay the money on the part of the firm, but simply that, upon the case made, no implied promise is raised by law; for the action for money had and received, as is well settled, does not rest on privity of contract. It lies wherever one man has, or bas received, money which, ex cequo et bono, he ought to repay. The com- mon case of money paid under mistsike of fact is a good illus- tration of thi's ; and where trover will lie for the conversion of property, and it has been turned into money, the owner may waive the tort, and bring his action for money had and received. In such a case the law implies a contract to repay, where the party has no equity to retain, the money, or the proceeds of property. Scott v. Surman, Willes, 404; M.ason T. Waite, 17 Mass. 563. ' �What is meant by the suggestion of the learned chanceUor is, therefore, simply that the case was not one in which the law would imply a promise to repay the money. The views above expressed, as to the necessity of the receiver of money having given a valuable consideration of some kind in order to hold it, or protect himself against an action for it if spent, and as to the true distinction between money and other chattels, are confirmed by the case of Lime Rock Bank v. Plimpton, 17 Pick. 160. �The case of Ma/rsh v. Keating, 1 Bing. N. C. 198, cannot, I think, be distinguished in princi^jle from the present case. One Fauntleroy, a partner of the defendants, by means of a forged power of attorney, procured the transfer of the plain- tiff's stock and sold the same, and paid the proceeds into the bank account of the firm. He kept the pass-book of the bank in his own custody, and took measures to prevent the deposit from being entered in a book ealled "the house-book," which was accessible to the defendants, and which, in the due course of their business, should have shown the deposit also, �By this and other devices he concealed entirely from his ��� �