Wilkinson v. Babbitt

29 F. Cas. 1253, 4 Dill. 207

Opinion

DILLON, Circuit Judge.

The deposit of the money by Voede in the Union (Herman Savings Bank was the act of complainant; the deputy, who is his appointee, authorized by law, derives the breath of life from the collector — is appointed by, and receives his pay from, and is removable at the pleasure of, the collector. The deposit of money in the bank did not create the bank the principal debtor, and the complainant the surety. The various sections of the internal revenue act of 1862 [12 Stat. 432] show that the collector is the only person known to the law as the custodian of the revenue collected, until it is paid into the proper depository. While the doctrine of subrogation, which entitles the surety to all of the liens and securities of the creditor, on paying the latter the debt of the principal, is fully recognized in equity, and in certain cases at law, this is not a ease for its application, and complainant is not entitled to be subrogated to the rights of the United States as a preferred creditor against the bank; and, moreover, under the acts of congress, the deposit of the money in the bank, by Voede or Wilkinson, was positively forbidden, and the deposit there was unlawful. The complainant, therefore. is not in a position to ask the aid of a court of equity to give him the fruits of an unlawful act, and to do so would encourage other officers in the violation of the law. Affirmed.