Page:North Dakota Reports (vol. 3).pdf/69

credit in the Citizens’ National Bank of Fargo. It is only on the assumption that the proceeds of this draft came to the hands of Clark & Smart that it is at all possible to show any money of the plaintiff in the control of Clark & Smart at the time of the assignment, even giving to the plaintiff the benefit of its theory that a fiduciary relation, and not that of debtor and creditor, existed; for, but for the proceeds of this draft, the balance of account would have been against the plaintiff. It is true that Clark & Smart are doubtless chargeable with liability for the amount of this draft, but the plaintiff, to recover, certainly must follow the proceeds of it into the hands of Clark & Smart in some form, But we prefer to put our decision on a broader ground. The theory on which alone plaintiff can secure priority of payment out of the funds in the hands of the assignee is that the identical money can be traced in some form from plaintiff to Clark & Smart, and that it was still susceptible of identification at the time of the assignment. That this could not be done seems clear to us. The proceeds of the draft never went into a separate fund. If they can be regarded as having ever been in the hands of Clark & Smart, they were immediately turned over to Mr. Smart, and used by him individually, and charged up to him individually on the firm books. But it is claimed that the proceeds of this draft went to enrich the estate of Clark & Smart, and that, therefore, * the plaintiff is entitled to priority of payment. Authorities are cited to sustain this view. Some of them do support it. They stand on no principle, and are opposed to a much stronger array of decisions. The plaintiff is seeking to recover its property in the possession of the defendant McDermott, but it is undisputed that it cannot identify any particular portion of the assets in the hands of such defendant as being its property. Neither can it trace such property into any particular fund. The very most that can be claimed is that the plaintiff's property has gone into the general mass of the property owned by the assignors prior to the assignment. But after its receipts by them it is no longer possible to trace it. It must have been paid out by them, as only $3.96