Page:Federal Reporter, 1st Series, Volume 3.djvu/270

 FIBST NAT. BK. OP CHICAGO ». EENO COUNTT BE. 268 �Even -without snch knowledge defendant would be liable. I fully approve the doctrine announced by the supreme court of Massachusetts in Hall v. Marston, 17 Mass. 574-79, as fol- lows: "Whenever one man bas in his hands the money of another, which he ought to pay over, he is liable to this action, (assumpsit,) although he bas never seen or heard of the party ■who bas the right. When the fact is proved that he bas the money, if he cannot show that he bas legal or equitable ground foi: retaining it, the law creates the privity and the promise." This doctrine is not in conflict with the decision of the supreme court in Hoover v. Wise. The defendant's claim, that it bas the right to apply the proceeds of the checks collected by it to the liquidation of its claim against the Mastin Bank, is entirely without merit. There is not a ebadow of ground for holding that the defendant believed the paper belonged to the Mastin Bank. The indorsement to that bank declares in plain words that it was "for collection," 80 that the defendant was definitely informed that the Mas- tin Bank did not own the check. �It appears that the plaintiff charged the checks to Hether- ington & Co. at the time of sending them to that firm for col- lection; but this seems to bave been in accordance with a custom prevailing in such transactions. The paper sent to an agent for collection is charged to the agent, and credit is given when it is returned uncollected, or, in case of collection, when the proceeds are remitted. This, however, does not affect the title to the paper or its proceeds; that depends upon the question whether the paper is sold or not, except in the case of an assignment on its face, purporting to be an absolute sale or transfer, upon the faith of which an innocent purchaser buys from the assignee, or advances money to him. It results from these views that a new trial must be granted, and that, upon the facts found, there must be judgment for plaintiff. �FosTEE, D. J., dissennng. 1 cannot concur with the circuit judge as to the law of this case. My views are fully presented ����