571, the doctrine contended for has undergone a material modification. While it may be impossible to follow the fund in its diverted uses, 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. The 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 same effect, see Widman v. Kellogg (1911) 22 N. D. 396, 39 L.R.A. (N.S.) 563, 133 N. W. 1020.

Το

Similarly, where a city deposited money in a local bank for transmission to a bank in New York, for the purpose of meeting its maturing coupons and bonds, it was held that the deposit was impressed with a trust, and, on the failure of the bank, the city could claim the deposit in preference to the general creditors. St. Louis v. Johnson (1879) 5 Dill. 241, Fed. Cas. No. 12,235.

In Moreland v. Brown (1898) 30 C. C. A. 23, 56 U. S. App. 722, 86 Fed. 257, it appeared that a debtor deposited in a New York bank the amount that he owed to a creditor in Montana. The New York bank telegraphed a Montana bank to pay the debt and charge the same to its account. The Montana bank refused to pay in any way except by exchange on New York, which the creditor refused to accept. The creditor also refused to permit the amount to be placed to his credit in the Montana bank. He then accepted a draft on the New York bank, to be a payment only if honored. The Montana bank then failed and the draft was not paid. The court held that the refusal of the creditor to accept the draft in payment, or to permit the amount to be placed to his credit, fixed the character of the deposit in the Montana bank as a special deposit for him, made by the New York bank in the execution of an express trust, in which the title to the money was in the creditor. The court said: "The relation of debtor and creditor was not established. It was precisely

the relation which the plaintiff refused to accept. The Helena bank was unquestionably the agent of the New York bank to pay the plaintiff a specified sum of money, but when the Helena bank refused to make the payment, as directed by the New York bank, and undertook to deal with the plaintiff on its own account, it admitted that it had in its possession the specific sum, and the bank and its receiver are estopped from denying that such was the fact."

Where money is paid to and accepted by a bank for the purpose of transmitting the same to the holder of a note made by the person so paying, and the same is mingled by the bank with its assets, and used to swell its general estate, and is not transmitted, and the bank thereafter makes an assignment for the benefit of its creditors, the money so received will be held to be a trust fund, and, though the specific money cannot be followed, a trust therefor will attach to the entire estate, which may be enforced against the assignee by the person for whose benefit the trust is created. Ryan v. Phillips (1896) 3 Kan. App. 704, 44 Pac. 909.

In the case of Re Jarmulowsky (1919) 169 C. C. A. 297, 258 Fed. 231, it was held that a depositor of funds with a private banker, for the purpose of transmission to a person abroad, could, on the insolvency of the banker, recover the funds if he could trace and identify them; and the fact that, by the New York statute, such a depositor was given a preferred claim against certain securities deposited by such bankers with the state superintendent of banking, did not prevent a recovery.

But it has been held that the drawing of a check by a depositor, payable to the bank, and for which the bank issued a certificate of deposit payable to a third person, did not place the responsibility on the bank of remitting the money to the third person, and so constitute a trust in the fund in favor of such

third person. People v. California Safe Deposit & T. Co. (1913) 23 Cal. App. 199, 137 Pac. 1111. In that case

it appeared that an attorney who had on deposit in a bank certain money belonging to his client wished to send it to her, and drew a check on his deposit, payable to the bank, and, in return, received a certificate of deposit, payable to his client. On the failure of the bank before the certificate was paid by it, it was contended that the transaction constituted a special deposit impressed with a trust in favor of the client, and therefore entitling her to a preference over the general creditors of the bank. In denying this contention the court, after reviewing numerous cases, said: "In all these cases the deposit was made subject to an agreement by the bank that the money would be used in some particular manner or to pay some specified third person. Where, however, the deposit is for the credit of the depositor or some other person, as in the case of a certificate of deposit, there is no intent to make a payment of some specific claim of a third person, as in the cases cited. There was here no agreement by the bank to pay the specific claim of Mrs. White. Its agreement was to pay the certificate of deposit according to its terms, and it implied no obligation to hold as a trust fund the amount called for in the certificate."

f. Deposit as security. Where a deposit was made by a lessee for the specific purpose of securing to his landlord the payment of rent, etc., and the bank so accepted it and gave its receipt therefor, setting out the terms and conditions on which it was made, it was held that a trust was created in favor of the landlord which he could enforce in preference to the general creditors of the bank, provided he could sufficiently trace and identify it under the rules governing the tracing of trust funds intermingled with other funds. Woodhouse v. Crandall (1902) 197 III. 104, 58 L.R.A. 385, 64 N. E. 292, reversing (1902) 99 Ill. App. 552, wherein it was said: "The transaction in this case was not a mere bail-. ment for the safe-keeping of a pack

age of money for Furlong, where the identical thing was to be returned to him as a depositor, and it was not a deposit to the general account of the depositor, Furlong, or Woodhouse. The receipt specified the terms and conditions of the deposit, and shows that it was not for entry on the general account of either of the parties. In the case of a general deposit with a bank to the credit of the depositor, the relation created is not that of principal and agent or of trustee. and cestui que trust, but is merely that of debtor and creditor. Such deposits belong to the bank and become a part of its general funds, and there is nothing but a liability as debtor to repay according to the customs and usages of the business. This deposit was for a specific purpose, for the benefit and security of a third person (Charles F. Woodhouse), and it created a trust relation in his favor. The banking firm assumed the position of a trustee, and the money deposited constituted a trust fund, which the bank was bound to keep intact for the purpose of the trust. The obligation of the bank was to preserve the sum of $1,500 as a trust fund for the person mentioned in the receipt, and to apply it to the purposes therein specified, and the title to such trust fund did not pass to the bank as a part of the general funds of the firm, The certificate of deposit was made and attached to the receipt merely for the purpose of identifying and following the fund and showing where it had been put. That was to conform to the plan of keeping books adopted by the bank," and the system of bookkeeping by. the trustee could not affect the substantial rights of the beneficiaries."

The court in Woodhouse v. Crandall (Ill.) supra, distinguished the case of Mutual Acci. Asso. v. Jacobs (1892) 141 Ill. 261, 16 L.R.A. 516, 33 Am. St. Rep. 302, 31 N. E. 414, wherein it was held that a deposit by the accident association for the purpose of indemnifying the sureties on an appeal bond was nevertheless a general deposit, on the ground that in that case the accident association knew that

the money, which had been given in the form of a check on another bank, was drawn out and mingled with the general funds of the bank, and used by it in the usual course of its business, and in the same manner as other funds of the bank.

Where a deposit is made in a bank as security for the signing of a bond, and a duplicate deposit slip is given, such as it is the custom to use where a general deposit is made, the fact that there is a notation on the deposit slip, stating that it is "security for signing bond to be held by bank," does not render the deposit a special one, giving rise to a trust relation. Dearborn v. Washington Sav. Bank (1895) 13 Wash. 345, 42 Pac. 1107, wherein it was said: "The fact that the deposit was entered by the bank upon this kind of a slip would, in itself, be very strong proof that it understood that it was a general deposit, and that, in receiving it, it became the debtor of the depositor, and not his trustee. This manner of treating the deposit on the part of the bank would not have bound the depositor had it not been made known to him. But when he received the duplicate slip he must be presumed to have known what the certifying of the deposit in that form would reasonably indicate. That this would have been the result of the entering of the deposit upon such a slip and a delivery of a duplicate thereof to the depositor without anything excepting the fact of such deposit having been written thereon is substantially conceded by the respondents; but it is contended that the writing upon said slip of the words, 'Security for signing bond to be held by bank,' showed that the deposit was not to be treated as an ordinary general deposit. But to our mind these words, written upon said slip, should be given little or no force in determining whether, by the deposit, the bank became the debtor or the trustee of the depositor. The only thing that these words indicated was that, whatever the relation between the depositor and the bank on account of the deposit, such relation had been assumed for the

purpose of securing a surety upon a bond, and should be continued until such surety should be released from liability." The court further held that the nature of the deposit was further fixed as general by the action of the depositor in subsequently drawing a check against the fund, payable to "certificate of deposit," such as would be necessary to draw out funds on general deposit with the bank. On this point it was said: "All of these papers were such as would have been required in the transaction of the business if the deposit was a general one, and none of them would have been required had the deposit been a special one; and if they are to have their legal effect, they conclusively establish the fact that the deposit was general, and not special. The only way in which their force is sought to be met is by the general statement by said respondent that he did not understand their force and effect when he received or signed and delivered them; that all he supposed he was doing was, in one instance, getting a receipt for his money, and, in the other, giving his own receipt therefor. But, in the absence of any proof of fraud on the part of the bank in inducing him to receive or execute and deliver these papers, or of any testimony tending to prove that their contents or effect was in any manner misrepresented to him by any person, their force and effect were not overcome by such proof. In our opinion a clear preponderance of evidence was in support of the claim that the deposit was a general one. This being so, the money did not come to the hands of the receiver as a trust fund."

g. Miscellaneous deposits.

In Star Cutter Co. v. Smith (1890) 37 Ill. App. 212, it appeared that a check was left with a bank by a principal to protect a check drawn on the bank by one of its agents who did not have any funds deposited to meet it. The bank refused to enter the check on a pass book, but merely agreed to hold for the purpose indicated, and gave a receipt therefor

to that effect, also attaching a memorandum showing the purpose for which it was held. The check was not sent forward for collection, but was held for nearly five months, when it was put in the form of a certificate of deposit. On the failure of the bank it was held that the depositor might recover the amount of the check in preference to the general creditors, as the transaction amounted to a deposit for a special purpose, and did not give rise to the relation of debtor and creditor which flowed from a general deposit. The court said: "The first question is whether said deposit was a special deposit by the Star Cutter Company. That it was such we think is clear. The clerk, Short, was willing, it is true, to make a general deposit of the money to the credit of Buckingham, but the bank, through its agent, refused to receive such deposit, but offered to take it for the specific purpose of taking up a check of Buckingham for $1,000, and, on the clerk's agreeing to leave it for that specific purpose, it was earmarked by an indorsement to identify it as being deposited and held for that purpose, and such marking or identification was attached to the fund when the money was drawn upon the check, and took the form of a certificate, and was retained upon it till it came into the hands of the receiver. The object and intent of placing the money in the bank was, so far as the Star Company was concerned, to meet a particular check which it was understood had been used by its agent, and the bank was particular to confine its agency in

the matter and the relation of the parties to the transaction to that specific and definite purpose, and no other. While, because of the lack of particular description of the Buckingham check intended to be covered, the bank might be justified in applying the fund in payment of the first Buckingham check for the amount of $1,000 presented, it having no notice that such was not the check intended to be provided for, it is very clear that the bank could not legally split up the fund and use it to discharge a Buckingham check for a less amount. The fund was not in the bank for Buckingham's general account, and could not be dealt with in any other manner than as a specified trust fund, to be applied to the particular purpose for which only the bank consented to receive it."

In Carlson v. Kies (1913) 75 Wash. 171, 47 L.R.A. (N.S.) 317, 134 Pac. 808, it appeared that an administrator and attorney in fact, having certain funds in his hands belonging to nonresident heirs, placed the money in bank and received a receipt therefor to the effect that the money was to be held until he could obtain the proper vouchers from the heirs, when it was to be forwarded to them by bank draft. The money was commingled by the bank with its general funds, and a few days thereafter the bank failed. . It was held that the transaction was in the nature of a special deposit entitling the heirs to a preference over the general creditors of the bank. M. B.

Highway

intersection

ror.

Fellows, J., delivered the opinion. of the court:

Plaintiff's automobile was injured

by a collision with defendant's truck on a highway officially known as M-13 and called the Mackinaw trail. The collision occurred in the country at what is commonly called a three corners. Plaintiff was driving south toward the corner; defendant's truck was coming east toward the corner. The corner is a right-angled one, and the east and west road east of the corner is an ordinary dirt road. The north and south road does not go beyond the corner. Plaintiff counted in part on defendant's failure to keep to the right of the intersection of the center of the highway, upon the theory that these were intersecting highways within the meaning of the provisions of Act No. 9, Public Acts 1919. The testimony showed without dispute that defendant's truck was on the left side of the road, kept to the inside of the curve until plaintiff was discovered, when an unsuccessful attempt was made to avoid the collision. The provision of the statute here involved is as follows: "And any person so operating any motor vehicle shall, at the intersection of a public highway, keep to the right of the intersection of the center of such highway when turning to the right, and pass to the right of such intersection when turning to the left."

By appropriate requests plaintiff's counsel requested the court to

charge the jury that the place of the accident was an "intersection" of public highways, within the meaning of the act, and that defendant owed the duty of keeping to the right of the intersection of the center of such highway. These requests were refused, and the trial judge instructed the jury: "Under the particular circumstances of this case at this curve, I will take the responsibility of saying to the jury that this is not the intersection of highways. This road has in it a 90degree curve, or a right-angled turn; but it is a continuous road so far as its improvement is concerned, and so far as its use by the parties to this suit is concerned. If this were a four corners, and one of these parties had been going straight east and the other straight south, and one of them had run into the other broadside, that would be an intersection of center lines of

highways in question; but that is . So at this par

not this case.