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 Railroad Co. v. Boss, 41 Fed. Rep. 917; there was no evidence whatever showing that the engineer was a competent man, or that he operated the engine in a skillful manner. In this case the sparks were not only carried 100 feet from the track, but were thrown fifty feet into the air above the smoke stack, and there was evidence in the case, coming from the lips of the defendant's own skilled employe, tending to show that such a fact indicated that the engine was not in good condition. We are of opinion that the court should have granted the defendant's motion to direct a verdict in its behalf, and the judgment and order are therefore reversed, and a new trial ordered.

Wallin, J., concurs.

Bartholomew, J., having been of counsel, did not sit on the hearing of the above case, nor take any part in the decision.

(53 N. W. Rep 173.)

Northern Dakota Elevator Company vs. Clark & Smart, and McDermott, Assignee.

Opinion filed June 20th, 1892.

Confusion of Goods—Preferances—Right to Pursue in Hands of Third Party.

Where the property of one is received by another, this, of itself, does not entitle the owner to priority of payment out of the general assets of the one receiving the property. To recover his property, the owner must be able to trace and identify it in some form. When it is mingled indistinguishably with the mass of property of the one receiving it, or when, as in the case of money, it is paid out by him, the right to pursue it is lost, because identification is impospossible, Mere enrichment of the estate or extinguishment of debts with the property received will not make the owner thereof a preferred creditor.

Appeal from the District Court, Griggs County; Rose, J.

Action ‘by the Northern Dakota Elevator Company against George Clark and others to recover certain money claimed to be