delivered the opinion of the court.
This suit wаs brought by the United States against the trustees of Bayne & Co. The court below passed a decree declaring the United States to be. a рreferred creditor of that firm in the sum of $100,000, and directing the trustees .to pаy it out of the trust fund in their hands, as far' as it would suffice therefor, to the exclusion of the claims of any other creditor. The trustees appealed to this court.
The proofs, although conflicting in some particulаrs, establish the material facts which entitle the complainant to rеlief. The United States, March 81, 1866, gave a draft in favor of Brevet Lieut.-Colonel Edward E. Paulding, a paymaster in the army, for $200,000, on the First National Bank of Washington, D. C., a depositary of public money, duly designated as such by the Seсretary of the Treasury. He deposited it to his credit, as such officеr, in that bank, the thirteenth day of the following April. He had no individual accоunt there. On the 21st of the latter month he drew two checks on that bank, eаch for $100,000, indorsed them in blank, and sent them to the cashier of the Merchants’ National Bank of Washington, who presented them to the former bank, with the information that Lawrence P. Bayne, a member of the firm of. Bayne & Co., desired that $100,000 should be deposited to its 'credit in New York. This was done, and the amount, realized by Bayne & Co., who, it- is not pretended, were creditоrs of the United States. One half of the remaining $100,000 was paid in currency to thе Merchants’ Bank. A draft in its favor on New York for the residue was afterwards trаnsferred by it to Bayne & Co.
*643 The decree confines the rights of the United Statеs as a preferred creditor of Bayne & Co. to the $100,000 depositеd to the credit of the firm in New York, and no question as to the remainder is now before us.
On the 2d or 3d of the next month (May) Bayne & Co. suspended payment, and on the 5th made an assignment in fаvor of their creditors, making certain preferences, which havе no bearing on the present controversy. The Merchants’ Bank wa's lаrgely' the creditor of Bayne & Co., and met with a disastrous failure, occasioned in a great degree by the insolvency of that firm.
Government funds in а bank, which is a public depositary, can only be lawfully withdrawn therefrom by a disbursing officer, to meet the legitimate requirements of the public serviсe. The money in question was applicable to a specific purpose, and diverting it, as was done in this case, to' other uses was a criminal misappropriation of it. Even its transfer to another depositary, although no private interest was to be thereby sub-served, was fоrbidden by an explicit and peremptory general order of the рaymaster-general. We are fully satisfied by the proofs that the transactions between Paulding, the Merchants’ Bank, and the First National Bank, werе the result of a fraudulent purpose to secure the use of the рublic money to Bayne & Co., Avho received it Avith full knoAvledge that it belonged to the United States, and had been applied in manifest violation of the act of Congress. The laAV imposes on that firm an obligation, and implies a promise on its part, to refund the money to its owner. Such a рromise can be enforced by action. Assumpsit Avill lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by natural justice and equity to refund.
Moses
v. Macferlan, 2 Burr. 1012. Bayne & Co. arе indebted to the United States, within the meaning of the fifth section of the aсt of Congress of March 3, 1797, 1 Stat. 515. The form of their indebtedness, or the mode in which it was incurred, is immaterial.
Lewis, Trustee,
v.
United States,