In Anonymous Case, 67 N. Y. 598, the court say: "This is not like the case of a trader who has become embarrassed and insolvent, and yet has reasonable hopes that by continuing in business he may retrieve his fortunes. In such a case he may buy goods on credit, making no false representations, without the neces sary imputation of dishonesty. Nichols v. Pinner, 18 N. Y. 295; Brown v. Montgomery, 20 N. Y. 287; Johnson v. Monell, 41* N. Y. 655; Chaffee v. Fort, 2 Lans. 81. But it is believed that no case can be found in the books holding that a trader who was hopelessly insolvent, knew that he could not pay his debts, and that he must fail in business, and thus disappoint his creditors, could honestly take advantage of a credit induced by his apparent prosperity, and thus obtain property which he had every reason to believe he could never pay for." And it was decided that "in the case of bankers, where greater confidence is asked and reposed, and where dishonest dealings may cause widespread disaster, a more rigid responsibility for good faith and honest dealing will be enforced than in the case of merchants and other traders;" and that "a banker who is, to his own knowledge, hopelessly insolvent, cannot honestly continue his business, and receive the money of his customers; and, although having no actual intent to cheat and defraud a particular customer, he will be held to have intended the inevitable consequences of his act, i. e. to cheat and defraud all persons whose money he receives, and whom he fails to pay before he is compelled to stop business." It is insisted by counsel for the receiver that, though the money and checks were obtained by fraud, the title to them vested in the bank; and that the only relation subsisting between the plaintiff and the bank was that of creditor and debtor; and that he cannot reclaim the money and checks, because money has no earmark, and cannot be identified; and that the plaintiff has no lien on the fund in the receiver's hands entitling him to priority or preference over the other creditors of the bank. It was said by Lord King in Deg v. Deg, 2 P. Wms. 414, that "money had no earmark, insomuch that if a receiver of rents should lay out all the money in the purchase of land, or if an executor should realize all his testator's estate, and afterwards die insolvent, yet a court of equity could not charge or follow the land." See, also, Cox v. Bateman, 2 Ves. Sr. 19. And bank notes and negotiable bills have been represented as possessing the same quality. But the notion that money, because it had no earmark, could not be followed into or charged upon land in the hands of the trustee or his executor, arose from some misconception, and could not be supported. In Miller v. Race, 1 Burrows, *452, Lord Mansfield exposed this misconception, and pointed out the true reason why money could only be pursued under particular circumstances. He observed:

"It has been quaintly said that the reason why money cannot be followed is because it has no earmark; but this is not true. The true reason is upon the currency of it; it cannot be recovered after it has passed in currency. So, in case of money stolen, the true owner cannot recover it after it has been paid away fairly and honestly upon a valuable and bona fide consideration; but, before money has passed in currency, an action may be brought for the money itself. Apply this to the case of a bank note. An action may lie against

the finder, it is true, and it is not at all denied, but not after it has been paid away in currency; and this point has been determined, even in the infancy of bank notes."

Lord Ellenborough, in Taylor v. Plumer, 3 Maule & S. 562, 575, observed:

"The dictum that money has no earmark must be understood as predicated only on an undivided and undistinguishable mass of current money; but money kept in a bag, or otherwise kept apart from other money, guineas, or other coin marked (if the fact were so) for the purpose of being distinguished, are so far earmarked as to fall within the rule which applies to every other description of personal property while it remains in the hands of the factor or his general legal representative."

The true distinction, therefore, between money, bank notes, or negotiable bills, and other chattels, would seem to be that the former, for the protection of commerce, cannot be followed into the hands of a bona fide holder to whom they have passed in due course of business, while other chattels affected by a trust may, in general, be pursued and reclaimed. The ancient notion that money could not be followed, even as between trustee and cestui que trust, because money had no earmark, has given way to a more just and enlightened doctrine. Money, bank notes, and negotiable bills may be followed by the rightful owner, where they have not been circulated or negotiated, or if the person to whom they have passed has Miller v. Race, 1 Burrows, *452; 1 express notice of the trust. Smith, Lead. Cas. (5th Amer. Ed.) 597, (*250;) Taylor v. Plumer, 3 Maule & S. 562, 575; King v. Egginton, 1 Term R. 370; Ryall v. Rolle, 1 Atk. 172; Pennell v. Deffell, 4 De Gex, M. & G. 372; In re Hallett's Estate, 36 Eng. R. 779, 13 Ch. Div. 696; National Bank v. Insurance Co., 104 U. S. 54.

The only difference between money, and notes and bills, is that money is not earmarked, and therefore cannot be traced except under particular circumstances, while bills and notes, having a number and date, may generally be identified with less difficulty. It is conceded that, if plaintiff could identify the particular coins and bank notes which he had deposited, he would have the right to withdraw them from the mass of coins and bank notes which passed into the hands of the receiver; but it is insisted that inasmuch as the money deposited by him has, like water, flowed into the common mass, and so become incapable of identification, the right to pursue and reIt claim it is lost, although it is admitted that the very coins and bank notes deposited by him constitute a part of the common mass. is charged in the bill, and admitted by the demurrer, that the identical coins and bank notes deposited by the plaintiff remained in the bank when it stopped business, and came into the hands of the reIn such a ceiver, who now has them in his possession as a part of the general mass of coins and notes held by him as such receiver. case the identification is sufficient to entitle the depositor to follow Although the identical and reclaim the deposit made by him. coins and bank notes cannot be ascertained, yet, as it is admitted that so much in coins and bank notes belonging to the plaintiff is in the common mass, he is entitled, in equity and good conscience, If he does not withdraw from the common to take so much out.

mass the very coins and bank notes deposited by himself, no injustice is done, for he leaves an equitable amount of his own in place of every coin or bank note deposited by another. Pennell v. Deffell, 4 De Gex, M. & G. 372; In re Hallett's Estate, 36 Eng. R. 779, 13 Ch. Div. 696; Cragie v. Hadley, 99 N. Y. 131, 1 N. E. 537; National Bank v. Insurance Co., 104 U. S. 54; Frelinghuysen v. Nugent, 36 Fed. 229; Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. 354; Bank v. Dowd, 38 Fed. 172; Atkinson v. Printing Co., 114 N. Y. 168, 21 N. E. 178; In re North River Bank, (Sup.) 14 N. Y. Supp. 261.

And the proceeds of the checks are governed by the same principle, because the identical coins and bank notes realized from their collection constitute a part of the common mass in the receiver's hands. The mere fact that the plaintiff became a creditor of the insolvent bank through the fraud of its president, and that the bank became a trustee ex maleficio, would give him no right to preference over other creditors, unless he can trace and identify his money as a part of the common mass. But when it is shown by indubitable proofs, or is admitted, as in the present case, that the identical bank notes and coins so obtained by fraud constitute a part of the common mass of bank notes and coins in the hands of the receiver, in my judgment, the modern and better doctrine is that the depositor may take out of the common mass so much as he has put in. Lewin, Trusts, 1092, 1093.

From these considerations, it follows that the demurrer must be overruled, and it is so ordered.

CHICAGO & N. W. RY. CO. v. PRESCOTT.

(Circuit Court of Appeals, Eighth Circuit.

December 4, 1893.)

No. 316.

1. RAILROAD COMPANIES ACCIDENTS AT CROSSINGS GENCE.

CONTRIBUTORY NEGLI

It is a question for the jury whether it is contributory negligence for a person driving a gentle horse to follow other vehicles across a track behind a standing train, which obstructs all but about 14 feet of the crossing, when invited to do so by the company's flagman.

2. SAME ASSUMPTION OF RISK.

The doctrine of voluntary assumption of risks does not apply to the case of one who exercises ordinary care in attempting to pass by the rear of a standing train, which wrongfully obstructs most of the street.

3. SAME-STREET CROSSINGS-RIGHT TO OBSTRUCT.

The mere grant of a license to lay a railroad track across a public street gives no authority to stand cars thereon, so as to obstruct the crossing, for such periods as may suit the company's convenience; and whether it had a right to do so, in any particular instance, is a question for the jury, if the circumstances are such that reasonable persons might, entertain different views as to whether the blockade was justifiable.

4. NEGLIGENCE-PROXIMATE CAUSE-SHYING OF HORSE.

Where the shying of a horse brings a vehicle into collision with the rear end of a train which wrongfully obstructs most of the street crossing, such shying cannot be regarded as the sole, proximate cause, and the jury is justified in finding that the obstruction directly contributed to the accident.

In Error to the Circuit Court of the United States for the Northern District of Iowa.

At Law. Action by E. H. Prescott against the Chicago & Northwestern Railway Company to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant brings erAffirmed.

ror.

N. M. Hubbard, N. M. Hubbard, Jr., and F. F. Dawley, for plain. tiff in error.

Charles A. Clark and John C. Leonard, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER, District Judge. This is a writ of error to reverse a judgment which was recovered by the defendant in error in a suit brought by him against the Chicago & Northwestern Railway Company. The facts on which the recovery was predicated are not in dispute, and they are, substantially, as follows: The defendant company maintains and operates a double track railroad through the city of Cedar Rapids, Iowa, and for some distance within the limits of that city its tracks are laid in and along Fourth street, and across First avenue, at the point where Fourth street crosses that avenue. The passenger depot of the defendant company is located at the southwest corner of First avenue and Fourth street. On the morning of April 4, 1890, the plaintiff, with his two sons, was driving down First avenue, towards Fourth street, in a onehorse delivery wagon. As they approached the railroad crossing on Fourth street, they found the street partially blockaded by one of the defendant company's west-bound passenger trains, which had recently arrived from the east. First avenue, at that point, is about 80 feet wide, from curb to curb; but so much of the street was taken up by the standing passenger train that it only left a roadway about 14 feet in width between the rear end of the train and the east sidewalk, for the passage of vehicles. After the plaintiff reached the crossing, he halted on the north side of the train for a few moments, whereupon the defendant company's flagman, who was standing on the track at the rear end of the train, said:

"Hurry up. Come on. You are all right." The gates across

First avenue were at the time elevated, and several vehicles that were going in the same direction as the plaintiff had already crossed the tracks in safety. The engine of the passenger train was detached therefrom, and had moved to an adjoining track to take up a mail car which was to be coupled to the train; and a switch engine was standing on the same track as the passenger train, at the rear end thereof, and about 40 or 50 feet distant from the rear car. Under these circumstances, the plaintiff attempted to cross the tracks by the narrow roadway at the rear end of the train. While making such attempt, his horse, for some reason, suddenly shied to the right, bringing the wagon in contact with the buffers of the rear car. By reason of the sudden shock, plaintiff was thrown

from his seat to the ground, and sustained serious injuries, for which a jury awarded him damages in the sum of $1,500.

It is contended by the defendant company that as the plaintiff had an unobstructed view of the entire situation at the time he attempted to cross the tracks, and as the situation was not altered before the accident happened by any act of the defendant company, he should be held to have voluntarily assumed whatever risk was incurred in making the crossing, and should also be adjudged guilty of contributory negligence. These propositions were submitted to the trial court in the form of instructions, and its refusal to so charge constitutes one of the errors complained of. In view of all of the circumstances to which we have adverted, we find ourselves unable to hold, as a matter of law, that the plaintiff was guilty of contributory negligence. The passageway at the rear end of the train was wide enough to permit a team to be driven through, with ordinary safety. Other vehicles had passed through before the plaintiff attempted to cross the tracks. The plaintiff testified that the horse which he was driving was an old and gentle horse, that had been driven about the city for seven or eight years by himself for the purpose of delivering groceries, and was not in the habit of jumping or shying when in proximity to cars or engines. Moreover, the plaintiff was invited by the defendant's flagman to make the crossing, which was an assurance that the train would not be immediately moved, and that the crossing could be made in safety. Under these circumstances, it was clearly the duty of the trial court to submit the question of contributory negligence to the determination of the jury. In other words, on the state of facts disclosed by the record, the plaintiff's attempt to cross the tracks on the occasion in question cannot be said to have been attended by such obvious dangers to life or limb that all reasonable men would declare him to have been guilty of culpable negligence. Railway Co. V. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Hoye v. Railway Co., 62 Wis.' 672, 23 N. W. 14; Railway Co. v. Killips, 88 Pa. St. 405; Railway Co. v. Hutchinson, 120 Ill. 587, 11 N. E. 855; Directors, etc., v. Wanless, L. R. 7 H. L. 12; Wheelock v. Railway Co., 105 Mass. 203; Eddy v. Powell, 1 C. C. A. 451, 49 Fed. 814.

With reference to the further contention of counsel,--that the plaintiff voluntarily assumed the risk of crossing the tracks, and should be precluded from recovering on that ground, it seems sufficient to say that the rule invoked has no application to the present case. As the jury found that the plaintiff exercised ordinary care and circumspection in attempting to drive around the rear end of the train, the railway company is not released from lia bility for an injury occasioned by a negligent obstruction of the street, which rendered plaintiff's act necessary, merely because the plaintiff had full knowledge of the situation when he undertook to make the crossing. The doctrine of "voluntary assumption of a risk," as distinguished from contributory negligence, is generally applied in cases arising between employer and employe, where an employe, without any valid excuse for so doing, voluntarily undertakes to work with a tool or an appliance which is known to be