Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. The claim against the trustees was settled, but for less than the amount sought by the Department, so the case proceeded to trial against Continental. For restitution as normally understood in civil cases seeks to deprive the defendant of money or any other thing of value that he gained from tortious or otherwise wrongful activity or that it would be unconscionable for him to retain because received from the plaintiff in cir- cumstances under which he knew or should have known that the plaintiff expected compensation. But since the parties had assumed the applicability of the statute and quarreled only over the remedy, the Court decided to place decision on the narrow ground that the statute did not authorize the remedy of damages.
Restitution is a remedy historically and today dispensed in law and equity proceedings alike.
Whether it is equitable depends merely on whether it is being sought in an equity suit. 1 Dobbs, supra, sec. It is thus an equitable concept, so it can be argued that the Department of Labor is seeking restitution as an equitable remedy in an equity suit. Restitution is merely not an exclu- sively equitable remedy like an injunction. Had the Depart- ment's claim gone to trial, therefore, neither party would have been entitled to a jury trial.