Page:North Dakota Reports (vol. 3).pdf/72

We think this is quite too vague an equity for judicial cognizance, and we find no case justifying relief upon such a circumstance. In a very general sense, all creditors of an insolvent may be supposed to have contributed to the assets which constituted the residuum of his estate.” This new rule has sprung from a misconception of the decision in Knatchbull v. Hallett, supra. This case merely decides that, if the holder of the money makes an investment with it, as by depositing it in a bank, thus establishing between him and the bank the relation of creditor and debtor, the owner of the money may follow it in this new form, because he can trace it. His money is in this particular investment. The fact that other money has been placed in the same investment, i. e., the same account, cannot affect his rights, and it is an entirely rational presumption that, whenever the depositor draws for his own use funds from this account, he intends to draw his own money, leaving the other funds untouched. But it is impossible to trace the money when, as in this case, it has been paid out by the one who has it in his possession. If the plaintiff's money went into the hands of the assignors, it was paid out before the assignment, except as to $3.96; this being all the cash found on hand by the assignee. As to this $3.96, it might be that the plaintiff's position would be sound if it were able to show that any of the last $500 had ever come into the possession of the assignors. It may be that, in the view of the established custom of remitting by draft collections made at a distance, it is essential to the protection of the rights of persons owning papers forwarded for collection merely that the cash with which the collecting bank carries on its business, and with which the money collected is mingled, should be regarded as a specific fund, and that all payments made by the bank thereout should be regarded as having been made out of its own cash, and not with the cash collected. A remittance of the specific money collected is probably never made. See, as sustaining this view, Bank v. Weems, (Tex. Sup.) 6S. W. Rep. 802. This is a very important question, and we prefer not to decide it without the aid of full argument. Our