in the hands of one of defendants as assignee of Clark & Smart. Judgment for plaintiff. Defendants appeal.
Reversed.
David Bartlett, for appellants.
Owners seeking to follow their property or its proceeds, must trace it into defendant's possession, Whelley v. Foy, 6 Johns. 34; Van Allen v. Bank, 52 N. Y. 1; Bank v. Ins. Co. 104 U. S. 54; Kip v. Bank, 10 Johns 63; Bank v. King, 57 Pa. St. 202; Cook v. Tullis, 18 Wall. 332; Schuler v. Bank, 27 Fed. Rep. 424. To impress a trust character upon funds which an agent has misapplied it is incumbent upon the principal to clearly trace such funds into the hands of the party against whom relief is sought. Commercial Nat. Bank v. Armstrong, 39 Fed. Rep. 684; Idinois, Trust & Savings Bank v. First Nat. Bank, 15 Fed. Rep. 858; Bank of Commerce v. Russell, 2. Dill. 215; Storys, Eq. Jur. 1259; Edson v. Angel, 25 N. W. Rep. 307; Appeal of Hopkins Exr. 9 At. Rep. 867; Cavin v. Gleason, 11 N. E. Rep. 504.
Edgar W. Camp, for respondent.
If the property can be traced into the estate of the defaulting agent or trustee, this is sufficient. National Bank v. Ins. Co. 104 U. S. §4; Van Alen v. Am. Nat. Bank, 52 N.Y. 1; People v. City Bank of Rochester, 96 N.Y. 32; Peak v. Ellicott, 1 Pac. Rep. 499. The defendants having used respondents money in their business, having benefited their estate by such use a trust attaches to that estate which came to McDermott under the assignment. Peak v. Ellicott, 30 Kan. 156; S. C. 1 Pac. R. 499; McLeod v. Evans, 28 N. W. Rep. 173; S. C. 66 Wis. 406; People v. City Bank of Rochester, 96 N. Y. 35; Nurse v. Satterlee, 46 N. W. Rep. 1102; Farmers etc. Bank v. Milling Co. 47 N. W. Rep. 402; Independent Dist. v. King, 45 N. W. Rep. 908; Davenport Plow Co. v. Lamp, 45 N. W. Rep. 1049; Importers Bank v. Peters, 25 N. E. Rep. 319.
Corliss, C. J. By this proceeding the plaintiff is seeking to follow its money, claimed to be in the hands of the defendant McDermott, as assignee of Clark & Smart. It is insisted by the
