The question of practice raised by the record, was decided when the case was first before the Court, 70 N.C. 34.
And the main question has been repeatedly decided by this Court, adversely to the views which are now passed upon the argument in behalf of the defendants. Cummings v. Mebane, 63 N.C. 315. Shipp v. Hettrick, Id. 329.
The defendant Roseman, sold nine slaves on the 11th of August, 1863, for Confederate money. If we admit that Confederate money was as good an investment as the slaves, which, however, is denied, as the hires of the slaves would have amounted to something, yet the defendant, after the disbursement of a small portion of said money, "keep the balance in a tin box promiscuously with his own private money of the same character, without package or label to distinguish it as a trust fund, and bonded it in the same indiscriminate manner, taking certificates in his own name, and kept no account of the respective amounts of the trust fund, and his own private money thus bonded," and when testifying in his own behalf could not state whether he had invested in four per cent certificates, four or six thousand dollars of the money belonging to the Kelner estate.
There was no mark about this money to distinguish it from this other money, and, as is said in Shipp v. Hettrick, there never was such a separation of it from all other monies in his hands, as to make it cease to be his, and become a part of the estate of his intestate.
How can the defendant claim to be in a better position than if he had made a general deposit of this money in bank, in his own name? *Page 429
We have held that in such case the defendant would not have been discharged from liability.
But we do not feel called upon to repeat the reasons upon which Shipp v.Hettrick was decided. They are however, conclusive of this case.
The judgment of the Superior Court is affirmed.
PER CURIAM. Judgment accordingly.