Page:Federal Reporter, 1st Series, Volume 9.djvu/599

6 Si FEDERAL REPORTER. �thing, and he can pursue that particular thing through sevcral hands, he may charge all of these parties consecutively, or all who held the property consecutively, in one action, for its value. So that here, if it be true that the Smiths, or the persons who constitute the Mer- chants' & Mechanics' Bank, received this money, and turned over the same money to Spencer, they may be jointly charged, in proper phraseology, as for converting that money, but not otherwise. And it must be the identical money. �These cases, and all the authorities that I have been able to find, go to the point that where an action is founded in tort, and main- tained upon that principle, it must be for the conversion of the spe- cifie thing, and it can only be maintained where the property itself can be traced to the hands of the party to be charged. In that aspect, if the facts are truly stated in the first and second of these counts, no joint action can be maintained against these parties, unless the pleader may be able to allege that the same money came to the defendants the Merchants' & Mechanics' Bank of Leadville, and the defendant Spencer, successively. The plaintiff must allege that it was the same money, and that the defendants converted it to their own use, in order to make it an action for tort. �Upon the other theory, there is no difficulty in maintaining an action against either of the defendants separately as for money had and received, and, upon that principle, the third count, which states noth- ing as to the way in which the-money came to the hands of the par- ties, but merely charges that the defendants are liable to the plaintiff for $13,000, received by them for the use of the plaintiff, is not open to any objection. �The ruling upon the demurrer, therefore, must be, that it is sus- tained as to the first and second counts, because there the facts are stated which show that the defendants cannot be jointly liable, and overruled as to the third count, because nothing appears in that count to indicate that they may not be jointly liable. �If I have made myself understood, it will be apparent that the plaintiff must amend so as to make this substantially an action of trover for this sum of money against all these parties, or by dismiss - ing his action against one or the other of the defendants. If the action were dismissed as to Spencer, or as to the defendants who con- stitute the Merchants' & Mechanics' Bank of Leadville, I would see no difficulty in maintaining it against the other. ��� �