Page:Federal Reporter, 1st Series, Volume 6.djvu/867

 TJNITED STATES V. NATIONAL PAEK BANK OP N. Y. 855 �received was counterfeit was held fatal to the recovery with- out aetual proof of damage, are quite different in principle from this case. They proceed upon the theory that sueh delay, from the nature of the case, must necessarily impair the remediep over of the party from whom the money was received, and make it more difficult, if not impossible, for him to trace out the source from which he himself received it, or to find the guilty party and obtain restitution from him. Pindall's Ex'rs v. N. W. Bank, 1 Leigh, (Va.) 617, and cases cited; Gloucester Bank v. Salem Bank, 17 Mass. 22. In the present case the defendant's answer shows that it received the draft from another bank, and its remedy over will be complete upon the plaintiff's recovery in this action. Merchants' Nat. Bank v. First Nat. Bank of Baltimore, 3 Fed. Kep. 66. I think there was no obligation on the part of the plaintiff to surrender or tender to the defendant, upon the trial, this draft. The possession of it was not necesSary to a recovery over. I see no force in the argument, urged by defendant's counsel, tiiat the plaintiff has no just claim,i ex œquo et bono, because Dunlap cannot sue the govemmeut if the plaintiff recovers ; nor is there any force in the sugges- tion that the suit is virtually one for the beneot of Dunlap, and that he has been grossly negligent. What the govern- ment may do with the money, or what its duty is towards Dunlap, are matters immaterial. The defendant has received the plaintiff's money, for which it gave no aetual considera- tion, and is bound in law and ex œquo et bono to return it. It is unnecessary to consider the point made for the plaintiff that there was no such negligence in this case as the defend-. ant's arguments have assumed, or that, if there was, it *ould not operate to defeat tte action on the general ground that laches is not imputedto the government by reasonof the neg- ligence of its ofi&cers. �Judgm^t for plaintiff, with interest and costa. ��� �