We will first consider the question of the jurisdiction of a court of equity to impress a trust upon property or the proceeds of property, where the original property was not a trust estate, and no fiduciary relation existed between the owner and the person converting or appropriating the same. In this case the complaint does not show the defendant to have been in a position of trust or confidence; in other words, he was not the custodian, trustee, nor bailee of the amalgam, gold dust, and nuggets contained in the sluice boxes of plaintiff.

The great weight of authority seems to be that, unless some such relation exists, no trust arises by implication of the law, either ex maleficio or in invitum. The following are a few of the many definitions of a trust given by the courts:

“A trust in common parlance may be said to be a confidence reposed by some one in some one, and for some public or private purpose.” Ex parte Faulkner, 1 W. Va. 269, 298.

“A trust signifies a holding of property, subject to a duty of employing it or applying its proceeds according to the directions given by the person from whom it was derived.” Munroe v. Crouse, 59 Hun, 248, 12 N. Y. Supp. 815.

“A trust, in its simplest elements, is a confidence reposed in one person, who is termed the ‘trustee,’ for the benefit of another, who is called the ‘cestui que trust’; and it is a confidence respecting property which is thus held by the former for the benefit of the latter.” Carter v. Gibson, 29 Neb. 324, 45 N. W. 634, 26 Am. St. Rep. 381.

“A trust is an equitable obligation, either expressed or implied, resting upon a person by reason of a confidence reposed in him, to apply or deal with property for the benefit of some other person, or for the benefit of himself and another or others, according to such confidence.” McCreary v. Gewinner, 103 Ga. 528, 29 S. E. 960.

A trustee, in the widest meaning of the term, is defined to be a person in whom some estate, interest, or power in or affecting property of any description is vested for the benefit of another. Taylor v. Davis, 110 U. S. 330, 4 Sup. Ct. 147, *67528 L. Ed. 163; Truedale v. Philadelphia Trust Safe Deposit & Ins. Co., 63 Minn. 49, 65 N. W. 133; Robertson v. Bullions, 9 Barb. (N. Y.) 64, 101.

In Henninger v. Heald (N. J. Ch.) 30 Atl. 809, the court says:

“The wrongdoer who becomes possessed of property under such circumstances has been styled ‘a trustee,’ but this is for want of a better term, and because he has no title to property and really holds it for the true owner. It might as well be said that, where two persons conspire to possess themselves of the personal property of another when he brings trover for its recovery, they should be styled ‘trustees’ instead of ‘tort-feasors,’ and should he permitted to claim the benefit of a lien for care or for provender.”

All instances of constructive trusts may be referred to what equity denominates fraud, either actual or constructive, in violation of fiduciary obligation. Perry, in his work on Trusts, defines constructive trusts as “those which arise when a person clothed with some fiduciary character, by fraud or otherwise, gains some advantage to himself.” Again, in section 128, “if one who stands in no fiduciary relation appropriates another’s money and invests it in property, no trust results to the owner of the money.”

The complaint does not show that the defendant appropriated a trust fund. He was employed as night foreman in mining, but his relation to the amalgam appears no different from that of any other laborer. Under such a state of facts and the foregoing authorities, it appears clear that equity would have no jurisdiction to impress a trust upon the fund in question.

Upon the other question, it appears from the complaint that the fund in question was taken from the person of the defendant Tiberg after his arrest on a criminal charge. Article 4, amendments to the Constitution, protects a person, his house, papers, and effects, against unreasonable search and seizure. A person arrested on a criminal warrant may be searched, and anything which is evidence ,of the commission of the crime with which he is charged, or with which he may do personal violence to himself or others, or by means of *676which he may effect an escape, may be taken from his person and held by the officer having the prisoner in charge. This is permitted on the grounds of public policy, but no individual citizen should be permitted to take advantage of this necessary violation of the person of the prisoner. The case of Dahms v. Sears, reported in 13 Or. 47, 56, 11 Pac. 895, 896, very clearly states what appears to be the true rule:

“I am of the opinion that property taken from a prisoner under such circumstances is not the subject of attachment or levy by virtue of an execution. The security of the public may justify the .searching of a prisoner confined in prison upon criminal or even civil process, and the taking from him of any property in his possession that would aid him to make an escape. It would probably be regarded, under such circumstances, as a reasonable search and seizure; but to allow private parties to take' advantage of the circumstances in order that they may secure a personal benefit would be a violation of that faith which the commonwealth owes to persons held in custody under its authority and laws. It would lead to oppression and abuse. The object and purpose of an arrest under civil and criminal process would be perverted, and schemes and devices be resorted to by importunate creditors to enforce a payment of their demands that would outrage justice and the right to personal security. The case under consideration is not free from suspicion that unscrupulous measures were employed for the purpose indicated. The attachment of the money taken from the person of Keltener followed in very quick succession its seizure, and gives rise to the inference that collusion existed between the officers of the prison and the representatives of the creditors. One of the attachments was levied upon the money the same day it was taken from Keltener.”

See, also, Cooley’s Constitutional Limitations (5th Ed.) pp. 365-373, and notes.

The case of State of Iowa v. Williams, 61 Iowa, 517, 16 N. W. 586, is one very similar to the one at bar, and holds that, before any third party can proceed against property taken from a prisoner, the statu quo must be restored, especially so after a trial and an acquittal. It may be suggested that the complaint does not show a trial and an acquittal in the case in which Tiberg was arrested and the fund in question taken from his person. Neither does the complaint show a conviction in that case, and, under our law, the presumption of innocence must be indulged until a conviction is shown. *677What plaintiff’s remedy is under our statute is not necessary for the consideration of the court at this time.

The principal case relied upon by plaintiff is AEtna Indemnity Co. of Hartford, Conn., v. Malone et al., 89 Neb. 260, 131 N. W. 200. It will be observed in that case that the defendants had been convicted, and the controversy was between other parties, and no question of constitutional right seems to have been raised or involved, and the only authority cited in the opinion is Newton v. Porter, 5 Lans. (N. Y.) 416.

Had the defendant Tiberg been convicted in the criminal case, the plaintiff would undoubtedly have received the fund in controversy, under section 266, c. 30, of the Code of Alaska, but, the defendant not having been convicted, it would seem, as said in the Iowa case, he was entitled to go out of court and be placed in the same situation in which he was before the money was taken. This rule will undoubtedly do injustice in some instances, but it is better that injustice be done some times to an individual than that the personal liberties, private documents, and personal effects of the masses be placed at the mercy of unscrupulous litigants.

Paragraph 10 of the complaint shows that the defendant Tiberg claims to be the owner of the fund in controversy, and denies that plaintiff has any interest in the fund. Therefore the main question to be passed upon is the question of title to the personal property held by the clerk of the court, and, if it is not a trust fund, parties have a constitutional right to have the question of title passed upon by a jury.

The bill does not state a cause of suit in equity, and plaintiff’s attorneys admit that it does not state a cause of action at law; therefore the demurrer should be sustained; and it is so ordered.