decisions of the Supreme Court of Iowa was dismissed for want of jurisdiction, because, admitting the constitution of the State to be a law of the State, within the meaning of the provision of the constitution of the United States forbidding a State to pass any law impairing the obligation of contracts, the only question was of its construction by the State court. Railroad Co. v. McClure, 10 Wall. 511, 515.'

“An example of the jurisdiction exercised by this court when reviewing a decision of a federal court with regard to the same contract clause is found in the same volume. Folsom v. Township Ninety-Six, 159 U. S. 611, 625, 16 Sup. Ct. Rep.

174.

This case is governed by the principles laid down in Land Co. v. Laidley, supra, and the writ of error must therefore be dismissed."

EXTRADITION-INTERSTATE-FEDERAL COURTS -HABEAS CORPUS.-The decision of the United States Circuit Court of Appeals, Fourth Circuit, in Eaton v. State of West Virginia, 91 Fed. Rep. 760, passes upon a somewhat unusual question of the law of interstate rendition. It appeared that the defendant had been tried for the crime of arson in the State of West Virginia, after having been surrendered to the agent of the governor of State by the authorities of the State of Illinois. The defendant claimed that he was a citizen and resident of the State of Illinois. The circuit court of appeals intimates that the action of the governor of a State in issuing a warrant for the surrender of an alleged fugitive from justice to the authorities of another State, upon requisition, is regular. although merely presumptive proof was offered that the person named was in fact a fugitive from justice. In Eaton v. State of West Virginia, supra, it appeared that, although the defendant originally might have contested the right to extradite him from Illinois to West Virginia, he had practically waived the point by not raising and insisting upon it in some court, State or federal, having local jurisdiction in Illinois. The New York Law Journal says, in a review of this case: "The ordinary policy of the federal courts in criminal cases is to permit a prosecution in a State court to proceed to judgment, the defendant being relegated to his right of raising any question of infringement of federal privileges and immunities upon writ of error from the Supreme Court of the United States to review the determination of the supreme court of the State affirming his conviction. The Supreme Court of the United States has in several cases asserted the right of the federal courts to interfere with the administration of State law, if any peculiar necessity for such interference is shown to exist. But where no such exigency appears, the Supreme Court of the United States will suffer the effectuation of the judicial policy of a State without interlocutory in.ervention.

"It is well settled that, even in cases of kidnaping, the jurisdiction for trial of a State, over

persons charged with having broken its laws, is to be recognized. Kerr v. People, 119 U. S. 436; Mahon v. Justice, 127 U. S. 700. Such decisions emphasize the duty of careful and conscientious administration of the law of interstate rendition by the courts of a State upon which a demand is made by another State for the surrender of an alleged fugitive from justice. The substantial responsibility is lodged by law in the governor and courts of the State in which the alleged fugitive has taken refuge. It seems that if an alleged fugitive from justice has once been surrendered to the agent of a demanding State, practically he cannot avail himself of illegality in the demand. Also, it has been conclusively determined by the Supreme Court of the United States that a person surrendered upon a certain charge may be tried in the demanding State for a different offense. Lascelles v. Georgia, 148 U. S. 537.

"Where a defendant has already been convicted of an offense against the laws of a State, his surrender will not be ordered under federal habeas corpus, unless under exceptional circumstances. This is the purport of the decision in Eaton v. State of West Virginia, above referred to. It appeared that the defendant was present in the State court and made his full defense on the merits to the trial of the offense of arson charged against him. Of course the defense of non-presence at the time of the commission of a crime may be raised, either as a defense of alibi upon the trial, or, under federal law, to the surrender of the alleged criminal to a foreign State. Where the right to a release from custody is urged before trial, the ordinary presumptions in favor of the innocence of a prisoner undoubtedly should prevail. If, however, an interstate prisoner has been convicted in a court of competent jurisdiction, it seems only proper that the discretionary jurisdiction of the federal courts on habeas corpus should not be exercised except under extraordinary conditions. As to a convicted defendant, it would seem only proper to leave him to his remedy by appeal to the supreme court of the State, and then, if aggrieved, to the Supreme Court of the United States."

CARRIERS OF PASSENGERS-INJURY TO PASSENGER-NEGLIGENCE.-In Walker v. Green, 56 Pac. Rep. 477, decided by the Supreme Court of Kansas, it was held that a passenger on a freight train, who voluntarily and unnecessarily rides in a freight car containing a horse and household goods, which he is shipping over the line of road, instead of riding in the caboose attached to the train, which is provided for the accommodation of passengers, and who is injured by the negligent handling of the car, will be deemed guilty of contributory negligence; and the permission of the trainmen to ride in the freight car will constitute no excuse for his act. The court said in part: "Freight cars are not designed for passenger travel, nor are they used for such, except as the exigencies of particular cases require. A railroad

company discharges its full duty to the public when it provides trains composed of passenger coaches, and cabooses to its freight trains for the convenience of such passengers as have occasion to accompany their live stock or other property. It is not required, in the management of its freight trains, in making them up, in coupling its freight cars together, and in switching them about in its yards, to exercise that degree of care which is necessary in handling its passenger coaches and trains, for the obvious reason that no passengers are supposed to be in its freight cars. To hold railroad companies, as to passengers voluntarily and unnecessarily riding in their freight cars, to the same degree of care required of them as to passengers in their regular coaches or in their cabooses, would be preposterous. Carefulness is required of railroad companies, as of individuals, with relation only to that which may be injured or destroyed by the lack of it, and with relation to their knowledge of what has been committed to their care. With relation to passengers whom they have undertaken to transport, the highest degree of diligence which human skill and foresight can exercise is required of them. With relation to freight they have undertaken to transport, a less degree of care and prudence is exacted. For example, the receivers may be liable for the negligent handling of the cars in the yards at Newton, which resulted in damage to the goods of the defendant in error; but they are not liable to him for the injuries he received, because he voluntarily exposed himself to the hazards of rid ing in a freight car. It is no sufficient answer to say that the trainmen knew the defendant in error was in the freight car. In all probability, they were unaware that he was in fact in it; nor were they bound by the usual course of their duty or their observation to know that he or other passengers would be liable to ride in such unusual place, but, had they known him to be in the car, the case would be nowise different. The increased dangers of riding in such car were as well known to him as to the trainmen; and their knowledge that he was exposing himself to the increased perils of such kind of passage, or their permission to him to do so, constitutes no justification for his act. He was of mature years and discretion, and needed no one to warn him against the hazards he was taking. He, as well as they, was charged with notice that freight cars are not fit and safe vehicles for travel. The principles applicable to this case have been heretofore declared by this court in Railroad Co. v. Lindley, 42 Kan. 714, 22 Pac. Rep. 703. In that case it appeared that a live stock shipper was directed by the conductor to go upon the top of the train hauling his stock, so as to assist in watering it. He did so, and was injured by the negligent act of the engineer in violently bumping together detached portions of the train. It was ruled that riding upon the top of the cars was negligence upon his part, and also that the direction or request of the train conductor to do so constituted no excuse for his assumption

of the risk. In the opinion by Chief Justice Horton, many of the cases elucidating the rules in question are cited and quoted from. No cases involving a state of facts entirely like those under consideration have been called to our attention, but many of an analogous character are cited in Ray, Neg. Imp. Dut., sec. 123. The rule collectible out of these cases fully supports the decision made in this case and in that of Lindley, supra. It is true that the portion of the written contract of shipment made by the defendant in error recites that he was 'permitted to go on, over, and about the cars in the train in which said stock is carried.' This, however, was not a permission to ride throughout the entire journey on other parts of the train than the caboose; but it was, as the language reads, a permission to go on, over and about the train, and was, of course, designed to enable him to make such inspection en route of his horse and other property as might be thought necessary to properly care for it. There was no occasion for him to ride continually in the car 'with his horse and household goods in order to care for them, nor does the contract of shipment presuppose a necessity for doing so, and therefore confer upon him a corresponding right."

PREFERRED DEMANDS AGAINST IN

SOLVENT ESTATES.

There has been developed recently, what is termed a modern doctrine of equity, adopted by several courts of review, viz.: that if an agent or trustee wrongfully convert to his own use money held by him in a fiduciary capacity, and afterward fails, his insolvent estate will be presumed to contain the converted fund for which the cestui que trust may have a trust or preferential lien on the entire assets. It is predicated variously on the propositions: (1) that the wrongful conversion and use of the fund constitutes a confusion of property; (2) that the conversion itself is evidence of, or will be presumed a pro tanto augmentation of the general mass of assets; (3) that if disbursed in the payment of debts, or for personal advantage, the agent will be presumed to have used his own money, and the trust money to lodge in the general assets. Generally the cases involved concern the distribution of the assets of insolvent banks failing with little or no cash on hand, so far as the opinions disclose, and, without performing fiduciary offices assumed by them as to moneys received in trust, for the repayment of which, as well as their general indebtedness, the assets are charged. The doctrine, sub

stantially, was first advanced by the Supreme Court of Kansas in 1883, in Peak v. Ellicott, and has since been adopted in several States, some of which subsequently modified, distinguished or overruled it. New York2 and Wisconsin3 have abandoned it altogether. In Sherwood v. Bank1 the Michigan court returns to the general rule and ignores the doctrinal opinion in Carley v. Graves, cited, not even alluding to it. The Kansas court, in a late case, construed the doctrine as imposing on the insolvent estate the burden of proving that no part of it contains any of the trust fund, else the trust may be charged upon the whole assets, upon what principle does not appear. In a late Missouri case, the trust money was blended with that of the trustee in his bank account which was empty when he failed. No tracing of the proceeds of the account was attempted. The court recognized the general rule and collated the authorities supporting it, but, notwithstanding, adhered to the doctrinal precedents, reaffirming the views entertained in common by them, and quoting Stoller v. Coats with approval "that while it may be impossible to follow 8 trust fund in its diverted use, it is always possible to make it a charge upon the estate or assets, to the increase or benefit of which it has been appropriated, and, the

6

1 Peak v. Ellicott, 30 Kan. 156; Meyers v. Board, 51 Kan. 87; Hubbard v. Irrigating Co., 53 Kan. 637; Ryan v. Phillips, 3 Kan. App. 704; Hazeltine v. McAfee, 5 Kan. App. 119; Harrison v. Smith, 83 Mo. 210; Stoller v. Coates, 88 Mo. 514; First National Bank v. Sanford, 62 Mo. App. 283; I. X. L. Co. v. Chonreich, 65 Mo. App. 283; German Fire Ins. Co. v. Kimble, 66 Mo. App. 370; Synod v. Schoeneich (Mo.), 45 S. W. Rep. 647; Pundmann v. Schoeneich (Mo.), 45 S. W. Rep. 112. See Phillips v. Overfield, 100 Mo. 466, and Ulrici v. Broekeler, 72 Mo. App. 61; People v. City Bank, 96 N. Y. 32; People v. Bank of Danville, 39 Hun, 187; McCall v. Fraser, 40 Hun, 111; McLeod v. Evans, 66 Wis. 401; Francis v. Evans, 69 Wis. 115; Bowers v. Evans, 71 Wis. 133; Boyer v. King. 80 Iowa, 497; Dayenport Plow Co. v. Lamp, 80 Iowa, 722; Eureka v. Bank, 88 Iowa, 201; Jones v. Chesebrough (Iowa), 75 N. W. Rep. 97; Anheuser Busch v. F. & M. Bank, 36 Neb. 31; State v. Bank of Wahoo, 42 Neb. 896; Capitol National Bank v. Coldwater National Bank, 49 Neb. 786; State v. Midland Bank, 52 Neb. 1; Carley v. Graves, 85 Mich. 483; Smith v. Combs, 49 N. J. E. 420. 2 Cavin v. Gleason, 105 N. Y. 256; Holmes v. Gilman, 138 N. Y. 369; Imp. & Trad. Bank v. Peters, 123 N. Y. 272.

3 Nontucket Silk Co. v. Flanders, 87 Wis. 237; Burnham v. Barth, 89 Wis. 362; Henry v. Martin, 88 Wis. 367; Glanella v. Momsen (Wis.), 63 N. W. Rep. 1018. 4 103 Mich. 109.

5 Travelers' Ins. Co. v. Caldwell, 52 Pac. Rep. 540. 6 Synod v. Schoeneich, 45 S. W. Rep. 647.

general assets of the bank having received the benefit of the unlawful conversion, there is nothing inequitable in charging them with the amount of the converted fund as a preferred demand." The doctrine as stated is still maintained in Kansas, Missouri, Iowa and New Jersey, but was recently disclaimed in Nebraska. It has been cited with approval by the Supreme Courts of Colorado and South Dakota," but its adoption by them does not clearly appear. Although maintained by such very able and distinguished authorities, it is no less a violation of established equitable principles of which it is professed to be a progression. progression. The rule of equity as determined by the weight of modern authority is, substantially, that a beneficiary may follow and reclaim trust money in the hands of a trustee or his representatives, so long as it may be identified, or, have a charge therefor on a distinguishable sum of money with which it is proven commingled, or, if it has passed current, he may follow and reclaim, or have a charge therefor upon any form of property into which it has been converted, so long as it may be traced, and the rights of innocent holders have not intervened. The right continues whether the proceeds be of greater or less value, whether it consists of tangible property, or a credit, as a bank account balance, or whether the purchase or use be rightful or wrongful.10 The subject is wholly within the province of equity, and is not for determination by the common law doctrine of confusion of goods. But if the latter could be involved, still there could be a confusion 7 State v. Bank of Commerce, 75 N. W. Rep. 28. 8 First National Bank v. Hummel, 8 L. R. A. 788. 9 Kimmel v. Dickson, 5 S. Dak. 221, 25 L. R. A. 788. 10 Pennell v. Deffel, 4 D. M. & G. 372; Knatchbull v. Hallett, L. R. 13 Ch. Div. 696; National Bank v. Insurance Co., 104 U. S. 54; Slater v. Oriental Mills, 18 R. I. 352; Shields v. Thomas, 71 Miss. 260; Ferchen v. Arndt, 26 Oreg. 121; Little v. Chadwick, 151 Mass. 109; Bank of Florence v. U. S. S. & L. Co., 104 Ala. 297; Boone Co. Bank v. Latimer, 67 Fed. Rep. 27; Freylinghuysen v. Nugent, 36 Fed. Rep. 229; McComar v. Long, 85 Ind. 549; Windstanley v. Second National Bank, 13 Ind. App. 544; Continental National Bank v. Weems, 69 Tex. 489; N. D. Elevator Co. v. Clark, 3 N. Dak. 26; Engler v. Offcut, 70 Md. 78; F. & M. Bank v. King, 57 Pa. St. 202; In re Lebanon, etc. Bank, 166 Pa St. 622; Steamboat Co. v. Locks, 73 Me. 370; Imp. & Trad. Bank v. Peters, 123 N. Y. 272; Nontucket Silk Co. v. Flanders, 87 Wis. 237; Wetherall v. O'Brien, 140 Ill. 145; Illinois, etc. Bank v. First National Bank, 15 Fed. Rep. 858; Prindall v. Trevor, 50 Ark. 249; Bright v. King (Ky.), 45 S. W. Rep. 508; State v. Foster (Wyo.), 38 Pac. Rep. 926; Calhoun v. Bank (S. Car.), 20 S. E. Rep. 153.

of goods only with its species indistinguishable from it, as wheat with wheat, or, if we may say, money with money, but not wheat with lumber, or money with bonds, chattels and lands-general assets-because distinguishable from the other. Confusion argues indistinguishability, but not conversely. If money is indistinguishable in a box of jewels or an insolvent's assets, obviously converted trust money cannot be in the box or in the assets. No theory of mingling, confusion or augmentation, no presumption can change the fact. If A wrongfully mingle B's money with his own, B may have a charge therefor upon the commingled fund, not by the doctrine of confusion of goods, but by the rule of equity the application of which is invoked by proof tracing the converted money. If, however, A uses the whole so that none of the blended moneys remain, B's right of property, which is the foundation of his claim, does not extend to A's other properties or even his money not so intermingled. If B is able to trace his money into particular items of property obtained in exchange therefor by A, he would have an equitable charge therefor on such items to their extent if he did not choose to take them; but if B is unable to trace his money into specific property of A, his right of property fails because nothing remains to be the subject of a trust. A, solvent, is then

answerable civilly only as for a debt for the payment of which his property may be subjected by ordinary process, the cestui que trust's remedy in such case being no more effective than that of a general creditor. Shall then B acquire by A's insolvency a right to charge property he did not possess as against A solvent? Equity will not multiply the misfortunes of creditors by establishing a charge upon all the assets in their hands which it would deny against even a moiety of them in the hands of the wrongdoer.

mentation, but on the rule of equity grounded in the rights of property. But the term, as used, imports a conclusion which rests on false premises, thus: the trust money was exchanged for a component part of the estate, therefore that part of the estate contains the fund, therefore the whole estate contains it, therefore its subtraction from the whole is not a diminution of the assets; or, the trust money was used in the course of business, therefore it was used for the benefit of the estate, therefore the estate received its value, therefore it contains its value, etc. If a tenement house be purchased with the converted fund, the lien on the whole estate insures it to be salable for the amount thereof. If it is destroyed by fire it is alike insured by the greater lien. From this reasoning we dissent. The theory, as well as presumptions which dispense with proof tracing the trust money into the specific items of property sought to be subjected to the trust charge, is, in effect, a legal fiction which accomplishes the defeat of the rule. If, instead of money, the subject of the trust be wheat or cattle, and the insolvent's granary be empty, or his field unpastured, it has not been contended the trust, or its value, may be charged upon the entire estate of the unfaithful agent or trustee even when insolvent, nor upon a greater part thereof than may be identified as the proceeds of the wheat or the proceeds of the cattle, unless the proceeds be money, which, as the beneficiaries, it follows the doctrine would charge upon the whole estate without further identi fication. The accident of form would then seem to define the right and determine the remedy. Another modern doctrine will have to be devised by which equity may vary the rights and liabilities pertaining to the trust relation, with the varied forms of trust property.

If a trustee's miscellaneous properties are so absorbent that converted trust money will be presumed to permeate through their every part, why should not the doctrine include other forms of trust property no less sacred than money?

It is held the use of the trust money by the wrongdoer, even in the payment of his debts, is beneficial to the estate -a pro tanto augmentation of it. If A owns unincumbered property worth $10,000, and wrongfully converts $5,000, he may hold in trust for B, with which he pays a debt of

the same amount to his only creditor, C, does B thereby acquire any right in, or charge upon A's property under any rule or theory? But carrying the illustration further: D and E are also creditors of A for $5,000 each, and A makes an assignment. Will equity require the interference of creditors to confer on B the right to charge property he otherwise could not possess, and punish D and E for their timely aid by doubling their loss? If trust fund charges may be impressed upon the entire assets of an insolvent, instead of upon a distinguishable mass of money with which the fund is proven commingled, or upon specific property for which it is proven exchanged, then it does not require the interference of creditors to give a cestui que trust a charge upon all the property of an embezzling agent or trustee, regardless of its quantity or value, regardless of its ownership by the wrongdoer prior to the conversion, and regardless of the converted fund being traced into any particular item. If, as these authorities hold, the creditors take the estate charged with the trust, then the trust relationship has ceased to be personal and fiduciary, and a trustee, in accepting a trust, thereby imposes a lien upon all his property in favor of the beneficiary-a lien more sweeping and effectual than any mortgage, and enforceable by the beneficiary on default of performance. Nor in reason can the beneficiary's remedy be different, if the subject of the trust be property other than money. The law does not support the exercise of such power by the courts. When the trust money has passed current it is beyond the domain of equity. The chancellor's grasp is

then limited to that which it is ascertained to have purchased. He may subject it to the equitable charge or ownership of the beneficiary, but he may no longer award the trust money which is not answerable to the decree, although, having jurisdiction of the unfaithful trustee, he may deal with him in personam. If the use of the trust money, as in purchase, be rightful and authorized by the beneficiary, his recovery may not extend beyond the new form of property identified, nor is his remedy in rem superior if the use and purchase be wrongful and unauthorized. Knatchbull v. Hallett12 is a leading English case cited with approval generally by American courts, in

12 L. R. 13 Ch. Div. 696.

cluding some of those maintaining the subject doctrine. Hallett wrongfully converted £2,145, which he deposited to the credit of his bank account, and three months later died, when there was a balance of £3,029 to his credit. Omitting deposits subsequent to that of the converted funds, and subtracting all subsequent checks, there would have been a balance of £1,708 at the time of his death. The cestui que trust recovered so much of her fund. The court declined to be bound by the "no earmark" doctrine, and followed the fund commingled in the bank account, charging it upon the bank balance to the extent of £1,708, the amount traced in the view of the court as presented by the case. It will be observed the estate was not charged, neither was the full amount of the converted fund charged upon the bank balance as it stood at the time of Hallett's death. As illustrating its position: "If a man has £1,000 of his own in a box on one side, and £1,000 of trust property in the same box on the other side, and then takes out £500 and applies it to his own purposes, the court will not allow him to say that money was taken from the trust fund. The trust must have its £1,000 so long as a sufficient sum remains in the box. The reasoning of the opinion is clearly against the extension of the trust charge to other unidentified property of the estate, if we suppose the box or Hallett's bank account to have been empty. The court held that if an agent holding money in a fiduciary capacity mixes it with his own and draws out of the mixed fund, he will be presumed to draw out his own money first. The necessary inference is, the trust money will be presumed to lodge in so much of the mixed fund as remains, but it does not follow it will be presumed to lodge in the different miscellaneous assets of the wrongdoer after the fund is gone. The indiscriminate synonomous use of the terms "funds" and "assets" by the courts adopting the subject doctrine would seem to facilitate their departure. The substitution of general assets for particular funds as subject to the application of the rule, is, as well, logically faulty. Central National Bank v. Conn. Mutual Life Ins. Co.,13 is a leading American case also cited by these courts. In this case defendant's agent Dillon deposited its premium collec

13 104 U. S. 54.