Page:Federal Reporter, 1st Series, Volume 3.djvu/269

 263 FEDERAL REPORTER. �indorser does not mean to part with the absolute property in the bill, and is, therefore, barely authority to reeeive the money upon it." Edwards on Bills and Notes, § 277; Leavitt v. Putman, 3 N. Y. 494.. "In every such case, although the bill may be negotiable by the indorser, yet every subsequent holder must reeeive the money subject to the original desig- nated appropriation thereof, and, if he voluntarily assents to or aids in anyother appropriation, it will be a wrongful conversion thereof, for which he will be responsible." Parsons on Prom. Notes, § 143, and cases cited. Upon these principles, which are clearly recognized in Bank of MetropoUs v. New England Bank, and in Wilson v. Smith, supra, the plaintiff in this case is entitled to recover, unless a different doctrine is established by Hoover v. Wise, already referred to. In that case, aa already seen, the only point decided was that the attorney who collected the debt for the collection agency "was not the agent of Wise & Greenbaum, the New York creditors, in such a sense that his knowledge of the bankrupt condition of Open- heimer is ehargeable to them." But suppose the attorney in tliat case, knowing that Wise & Greenbaum were the owners of the paper, had collected the money, and had refused to pay it over, assuming the right to apply it on a claim of his own against the collection agency, would it follow from this rul- ing that Wise & Greenbaum would have failed in a suit to recover it ?" �That the court did not intend to overrule its previous de- cisions, above referred to, is, I think, clear from the language employed on page 314, as foUows: "Nor do we think that any great difficulty arises from the case of Wilson v. Smith, S How. 763-70. That decision is based upon the case of Com- monicealth Bank v. Bank of Neiv England, 1 How, 234, which is the only case referred to in the opinion, and in which case the question was not raised, The question there was not one of privity, but of the right to retain under the circumt tances stated." Precisely so, in this case, the question is as to «the right of the defeudant to retain the money under the circum- stances. Inasmuoh as it was plaintiff's money, and defeud- ant had notice of that faot, I think he caunot retain it. ����