or discharge by the law of his own country, which he may despair of establishing according to the rules of evidence used in a foreign jurisdiction; or a bar by way of prescription, which, as being matter of procedure, will be inadmissible there. The place where he is sued may thus be all-important; and shall it depend upon the will of his debtor, who is in default, to elect for him a jurisdiction? That would be to affect A. by the unauthorized act of B., over whom he has no control; and, therefore, it is not merely different from law, which a valid custom may be, but contrary to a principle of justice, which no valid custom can be."

It is submitted that the French method of dealing with the problem is far preferable to our own. This process begins with an injunction (saisie-arrêt) against the garnishee paying the debt to the principal defendant; this process is, of course, in the garnishee's court. A suit between the principal parties follows, to determine the validity of the principal claim; and that suit is brought in the court which has jurisdiction of that particular claim, that is, the court of the principal debtor. If judgment issues against the defendant in that suit, it may be enforced by payment of the garnished debt into court to discharge it. The process is clearly illustrated in a judgment of the Civil Tribunal of the Seine, 52 which has been translated as follows:

"THE COURT. Todesco, an Austrian subject domiciled at Vienna, alleges that Dumont, a German without known domicil at Paris, residing in London, should be ordered to pay him 44,700.95 francs, the amount of a note made by Dumont to Todesco, dated Augsburg, March 9, 1876, registered at Paris, Aug. 16, 1889. Todesco further prays the court to validate the garnishment made by him upon this note, on Betzold, a banker of Paris, Aug. 16, 1889. Incidentally Todesco moves that the question of validation be continued until a competent court has passed on the validity of the principal obligation. Dumont pleads to the jurisdiction of this court, on the ground that the parties are foreigners, and the obligation was contracted in another country.

"Though the court is incompetent in such a case to determine, as between strangers, the existence of the obligation, it is on the contrary competent to pass upon the legality of an attachment or of a

52 Todesco v. Dumont, 18 Clunet 559; translated, 1 Beale, Cases on Conflict of Laws, 434.

levy of execution resulting from a garnishment made within its jurisdiction. It ought always to grant a continuance to the attaching creditor to enable him to prove his claim before a competent court, on penalty, in case of failure to do so, of nullity of the whole process.

"On these grounds the court has jurisdiction only of the question of the validity of the garnishment. A continuance is granted for six months from this date, within which time, on penalty of nullity, Todesco shall sue said Dumont, on the principal obligation, before a court of competent jurisdiction."

HARVARD LAW SCHOOL.

Joseph Henry Beale.

THE RIGHT TO FOLLOW MONEY WRONGFULLY MINGLED WITH OTHER MONEY.

IF money to which one person is legally or equitably entitled is

wrongfully mingled by another with money of his own, so that the whole forms one indistinguishable mass, it was at one time held that all right to follow it is lost because it can no longer be identified; for, as it was said, "money has no earmark." This is, of course, a good reason why the person wronged cannot insist that any particular coins are his; but it is no reason why he should be denied an interest in the product, no reason why he should be relegated to a merely personal claim against the wrongdoer. This early doctrine is accordingly no longer law.2

Where money is thus wrongfully confused, the person wronged has two possible equitable remedies whereby he may proceed against the commingled fund or against any property for which it is exchanged by the wrongdoer. First, he may claim an equitable lien or charge on the whole mass for the amount contributed by him. Second, he may claim that the mass in equity belongs in part to him, his interest being proportional to the amount contributed by him, and may charge the wrongdoer as constructive trustee for

1 Ex parte Dale & Co., 11 Ch. D. 772 (1879). At one time it was even thought that if a factor sells goods for his principal, the principal is not entitled to the specific proceeds although kept separate, because money has no earmark. See Whitecomb v. Jacob, 1 Salk. 160 (1710); Scott v. Surman, Willes 400 (1742), in which cases, however, it was held that if the money is kept separate and invested in other property, that property can be reached by the principal. Later the doctrine that money cannot be followed because it has no earmark was limited to cases where the money is mingled with other money in one fund so that it can no longer be distinguished from the other money in the fund. Ex parte Dale & Co., supra. Lord Mansfield said that the doctrine means merely that where money has been transferred to a bonâ fide holder for value, he may keep it. Miller v. Race, 1 Burr. 452 (1758), p. 457.

2 Pennell v. Deffell, 4 DeG. M. & G. 372 (1853); Frith v. Cartland, 2 H. & M. 417 (1865); Knatchbull v. Hallett, 13 Ch. D. 696 (1879); Nat. Bk. v. Ins. Co., 104 U. S. 54 (1881). The dictum in Randolph v. Allen, 73 Fed. 23 (1896), p. 39, that the claimant has no interest in the mingled fund (though perhaps justified by the language, but not by the decision, in Litchfield v. Ballou 114 U. S. 190 (1884)), is not law. See In re Mulligan, 116 Fed. 715 (1902), p. 717; Primeau v. Granfield, 184 Fed. 480 (1911), p. 483.

him to that extent. The former may be called for convenience the lien remedy; the latter, the constructive trust remedy.

The lien remedy seems clearly justifiable. The wrongdoer owes a duty to the claimant to restore to him what was wrongfully taken from him. It is the wrongdoer's own fault that he cannot identify his own contribution. Therefore, to make reparation, he should use, and a court of equity will compel him to use, so far as necessary, the fund which is made up in part of the money of the claimant. In other words, the claimant has an equitable lien on the whole fund. The creditors of the wrongdoer cannot object. Since they are not purchasers for value, they stand no better than their debtor. They have no direct legal or equitable interest in their debtor's property, and take subject to any equitable interest which another may have in the property. The claimant's lien is therefore available against the general creditors of the wrongdoer.3

The constructive trust remedy, although not so often resorted to in cases where there has been mingling as in cases where there has been no mingling, seems also justifiable on principle. Where there has been no mingling, it has long been settled law that the claimant's money, or, if it is converted into other property, its product, can be recovered by him in specie and that he is not confined to a lien upon the money or its product. It makes no differ

3 3 Taylor v. Plumer, 3 M. & S. 562 (1815); Frith v. Cartland, 2 H. & M. 417 (1865); Harris v. Truman, 7 Q. B. D. 340 (1881); Gorman v. Littlefield, 229 U. S. 19 (1913); Amer. Sugar Refining Co. v. Fancher, 145 N. Y. 552 (1895). In Taylor v. Plumer, supra, Lord Ellenborough said (p. 574): "An abuse of trust can confer no rights on the party abusing it, nor on those who claim in privity with him." In Amer. Sugar Refining Co. v. Fancher, supra, it was said (p. 560): “It is claimed that the general creditors of the [wrongdoer] will be prejudiced if the plaintiff is allowed to prevail, and that he will thereby acquire a preference over the other creditors of the insolvent [wrongdoer]. But general creditors have no equity or right to have appropriated to the payment of their debts the property of the plaintiff, or property to which it is equitably entitled as between it and [the wrongdoer]."

The same result is reached whether the claimant's right is regarded as a right in rem (POMEROY, EQUITY JURISPRUDENCE, 3 ed., sec. 105) or a right in personam (MAITLAND, LECTURES ON EQUITY AND THE FORMS of Action, p. 142).

In nearly all of the cases cited below in which the claimant was given a lien, the question arose between him and the general creditors or trustee in bankruptcy of the wrongdoer.

PERRY, TRUSTS, 6 ed., secs. 127, 128; POMEROY, EQUITY JURISPRUDENCE, 3 ed., secs. 1049, 1051. Although undoubtedly the claimant may hold the wrongdoer as constructive trustee when he is a misappropriating trustee or other fiduciary, and although the lien remedy is available even where the wrongdoer is not a fiduciary (Humphreys

ence whether or not the wrongdoer intends to give the claimant an interest in the product.5 Where the product is more valuable than the money, he will come out more than whole. But, since it is his money that earned the profit, and since he ran the risk of losing his money (although it is true that even if his money had been lost he would still have had a personal claim against the wrongdoer), it seems just to give him the profit. Moreover, it is a wise policy not to allow the wrongdoer to keep the profit of his own wrong, although the profit is not strictly at the expense of the claimant.

The same principle should apply where the claimant's money is mingled with that of the wrongdoer, and is therefore only partly instrumental in earning the profit. The claimant should be entitled to a share of the profit, in so far as his property contributed to earning the profit. It has been said that in such case he should

v. Butler, 51 Ark. 351 (1888); Harrison v. Tierney, 254 Ill. 271 (1912); Edwards v. Culberson, 111 N. C. 342 (1892); and see the numerous cases where, as in Brennan v. Tillinghast, 201 Fed. 609, 615 (1913), a bank obtains deposits by fraudulently concealing its insolvent condition), it has been held in a few cases that the constructive trust remedy is not available against others than fiduciaries. Campbell v. Drake, 4 Ired. Eq. 94 (1845); Hart v. Dogge, 27 Neb. 256 (1889); and cases cited by Professor Ames in 19 HARV. L. REV. 513, note 5. The distinction seems arbitrary and the weight of authority is properly the other way. O'Neill v. O'Neill, 227 Pa. 334 (1910); and see cases cited in 19 HARV. L. Rev. 513, note 6, and in POMEROY, EQUITY JURISPRUDENCE, 3 ed., sec. 1051. The courts holding the minority view seem to have been misled by the term "trust." Perhaps almost as much confusion with regard to equitable rights and remedies has been caused by the use of the term "trust" as has been caused with regard to legal rights and remedies by the term "contract." It is not always seen that a constructive trust is not a right but a remedy. It is, of course, very different from a true trust which is a fiduciary relationship and one created in pursuance of the intent of the parties. If equity creates and specifically enforces an obligation to convey certain definite property and if that obligation is imposed on equitable grounds independent of the intent of the parties, as on grounds of redressing a tort or preventing unjust enrichment, then the property is said to be held in constructive trust. The constructive trust is the result of the right of specific enforcement of the obligation. It is the name given to the remedy, not the right for which the remedy is given. There is as good reason in the case of a non-fiduciary as in the case of a fiduciary for imposing a duty to surrender property acquired by a wrongful act; it should make no difference whether it is acquired by breach of trust or other fiduciary obligation, or by fraud or theft.

In Taylor v. Plumer, 3 M. & S. 562 (1815), the defendant unsuccessfully contended that where the money is converted into other property, no trust attaches to that property unless the wrongdoer intended to subject the property to the trust. In several earlier cases the court had laid unnecessary stress on the fact that the wrongdoer did so intend. Waite v. Whorwood, 2 Atk. 150 (1741); Deg v. Deg, 2 P. Wms. 412 (1727), p. 414; Wilson v. Foreman, 2 Dick. 593 (1782) (as explained ir Lench v Lench, 10 Ves. 511 (1805), p. 519).