#### JOSEPH C. WHITLEY AND OTHERS *Ex’s against*CHRISTOPHER FOY, *Adm'r*AND OTHERS.

Where all agent deposited money in bank as an ordinary deposit, stating at the time that it was the money of his principal, but desired «the officer to place the money to his own credit on the books of the bank, alleging that he might have occasion to use it for the benefit of his princip.il, and thé agent died shortly afterwards insolvent, it was *held*that the principal Was entitled to the fund, and might follow the same in a court of equity.

*35Cause removed from tbe Court of Equity of Craven county.

Edward 8. Jones, tbe testator of the plaintiffs, resided in the State of Alabama, but owned a plantation and slaves in the county of Onslow, in the State of North Carolina, upon which he was engaged in planting cotton. The intestate of the defendant, Eoy, one John Oliver, was the overseer for the said Jones upon this plantation, and was in the habit of disposing of the crops as his agent. In the spring of 1858, Oliver went to Newbern and sold the crop of the preceding year, and received the money therefor, which amounted to the sum of $1000. This money the said Oliver deposited at the Branch of the Bank of the State at Newbern. When he made tliis deposit, he stated that it was the money of Edward S. Jones, but that he wanted it placed to his own credit on the books of the bank, as he might have occasion to use it for the benefit of his principal, as he lived in Alabama. Shortly af-terwards, Oliver died, when the plaintiffs’ testator Jones, made ■a demand on the officers of the bank for the money, which they refused to pay. It was admitted by the plaintiffs’ counsel in this case, that the deposit was not a special one, but that the money was mingled with the other monies of the bank.

The bill is filed to obtain a decree for the payment of the fund to the plaintiffs as the executors of the said Jones, who has since died; the claim is resisted by the defendants, the administrators of John Oliver, who claim the fund as assets •of the estate of their intestate. The bank of the State is also made a party defendant.

The cause being set for hearing upon the bill, answer, exhibits and proofs, was transferred to this Court by consent.

*■J. W.*Bryan,, for the plaintiffs.

*Hubbard,*for the defendants.

Battle, J.

The claim of the plaintiffs to the funds in controversy, is clearly sustained both by reason and authority.— This contest being between the personal representatives of a *36principal and agent for an amount of money which the agent had received for tire principal, which he always admitted to belong to the principal, the latter certainly has the right to claim what is conceded to be his own, so long as he can identify it. This proposition is too plain to be denied, but the counsel for the defendant, Fay, the administrator of the agent, insists that the money cannot be identified, because it was deposited in bank as an ordinary, and not a special deposit, to the credit of the agent, and that it thereby became the money of the agent, and he at the same time became the debtor of the principal for the amount. That cannot be, because it was deposited expressly as the money of the principal and not of the agent, and was placed by the latter to his own credit, solely for the purpose of enabling him to pay it with more convenience to his principal, or apply it to his use.

Such being the state of the case, the rule applicable to it is, that “ a principal in all cases, where he can trace his property, whether it be in the hands of the agent, or of his representatives or assignees,, is entitled to reclaim it, unless it has been transferred *bona fide*to a purchaser of it or his assignee, for value without notice. In such cases, it is wholly immaterial whether the property be in its original state or has been converted into money, securities, negotiable instruments or other property, if it be distinguishable and separable from the other property or assets, and has an earmark or other appropriate identity; *Taylor*v. *Plummer,*3 Maul. and Sel. 562; *Veil*v. *Mitchel,*4 Washington C. C. Rep. 105; *Jackson*v. v. *Perkins,*3 Mason’s Rep. 232; *Scott*v. *Surman,*Willes’ Rep. 400 ; *Whitecomb*v. *Jacot,*1 Salk Rep. 166; *Jackson*v. *Clark,*1 Young and Jer. 216.” The above extract is from the case of *Overseers of the Poor of Norfolk*v. *The Bank of Virginia,*2 Grat. Rep. 544, in which it was held that the plaintiffs were entitled *to*money deposited to his own credit by their agent, he having soon after died insolvent. The same principle, which is that of following a fund in equity, is clearly settled by several decisions in our State. See *Black*v. *37
      *Ray,*1 Dev. and Bat. Eq. 433; *Bateman*v. *Latham,*3 Jones Eq. 35, and *Wood*v. *Reeves,*5 Jones Eq. 271.

The plaintiffs are entitled to a decree for the amount claimed.

Pee CueiaM, Decree accordingly.