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Bissell o. Couchaine

of the estate of said firm, acquired in whole or in part by means in BANK. of this $100, passed to, and vested in the assignee in bank- Dec. Term,

1846. ruptcy, by operation of law. U. S. Bankrupt Law, sec. 3, passed Aug. 19th, 1841. .

Such would be the case with money in the hands of a bankrupt executor or administrator, if it could not be “specifically • distinguished and ascertained to belong to a testator or intes· tate, and not to the bankrupt.” 3 Burr, 1369; Owen on Bankruptcy, 125, 126.

And where a bankrupt, who is factor for another, has sold the property of his principal, and received the price, before any notice to the vendee not to pay him, the principal has no other remedy but to prove for the amount upon the estate, unless the price remain in the hands of the factor, specifically distinguishable from the factor's own property. Owen on Bankruptcy, 126.

It was for the defendant in error to show that this money, or some part of it, did remain in the hands of the plaintiff in error, specifically distinguishable from the plaintiff's own property, and, not having shown it, the certificate and discharge in bankruptcy should have been held a bar.

The principle which we are contending for, is again declared in Waller v. Edwards, 6 Little's (Ky.) Reports, 384; where it is held, that a certificate and discharge in bankruptcy is no bar to the recovery of specific property held by the bankrupt as executor. Aliter, as to a recovery by distributees of money received by him in his fiduciary capacity, and for which he was liable before bankruptcy.

But we suppose it will be contended on the other side, that Bissell had assumed a trust in favor of the owner of the first mentioned note; and although the trust was purely voluntary, and without any consideration, yet, as the beneficiary is not shown to have become a party to it, it was revocable, and being revoked, an implied trust results in favor of the party who originally created it, and that the nonpayment of the money establishes the fact of indebtedness in a fiduciary capacity.

Bissell v. Couchaine.

In Bank. Before this position can be made available to the defendant Dec. Term, in error, some proof would seem to be required that the trust 1846.

was revoked before suit was brought; but there is no proof whatever on that subject.

Again, — the construction of that clause in the bankrupt law, which is involved in this suit, has been authoritively settled by the Supreme Court of the United States, in the case of Chapman v. Forsyth et al., 3 Howard's Rep. 202, showing that the indebtedness proven in this case, is not a fiduciary debt within the meaning of the act. We extract so much of the opinion of the Court as bears directly on the point under consideration : :

“ The second point is, whether a factor, who retains the money of his principal, is a fiduciary debtor within the meaning of the act ?

"If the act embraced such a debt, it will be difficult to limit its application. It must include all debts arising from agen

cies; and, indeed, all cases where the law implies an obliga«tion from the trust reposed in the debtor. Such a construc- tion would have left but few debts on which the law could

operate. In almost all the commercial transactions of the
country, confidence is reposed in the punctuality and integrity
of the debtor, and a violation of these is, in a commercial
sense, a disregard of a trust. But this is not the relation
spoken of in the first section of the act.
: “ The cases enumerated — the defalcation of a public offi-

cer,' « executor, administrator,' «guardian,' or “trustee'- are
(not cases of implied, but special trusts; and the other fidu-

ciary capacity,' mentioned, must mean the same class of trusts. · The act speaks of technical trusts. A factor is not, therefore, « within the act.

' “This view is strengthened, and indeed made conclusive, by the provisions of the fourth section, which declares that no "merchant, banker, factor, broker, under-writer, or marine insurer,' shall be entitled to a discharge who has not kept proper books of accounts.' In answer to the second question, then, we say, that a factor, who owes his principal money,

Bissell v. Couchaine.

' received on the sale of his goods, is not a fiduciary debtor In Bank. · within the meaning of the act.”

Dec. Term,

1846. Upon the strength of these authorities, we feel warranted in saying, that the case at bar does not present a fiduciary debt within the meaning of the act of Congress, as found by the Common Pleas, and that its judgment ought to be reversed.

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'Wood, C. J. It is insisted by the counsel for the defendant in error, that, as this case was submitted to the Court instead of a jury to determine the issues of fact, if the judgment is reversed it must be because the Court of Common Pleas gave too much or too little credit to the testimony introduced, and, in the opinion of this Court, did not give the evidence its proper and legitimate influence, or weight, in its application to the facts of the case. If it be sought to disturb this judgment on this ground, the position assumed cannot for a moment be entertained. The reason why not, is given in several reported cases, and need not, in this, be again repeated from the bench. Utter v. Walker's Adm'r, Wright's Rep. 46; l'rice v. Orange, Ibid. 568; Reynolds y. Rogers, 5 Ohio Rep. 169; Bank of Cincinnati v. Buckingham, 12 Ohio Rep. 482.

The record, however, shows no such case as belongs properly to that class of cases, in which the principle alluded to has been maintained. The record presents all the testimony adduced upon the trial. There does not appear to have been any disagreement with Court or counsel as to the proof; and, from the facts adduced, the Court held, that the money received by the plaintiff in error, in truth, in discharge of his own note of indemnity, and which he agreed to apply on the note of the defendant in error to Knapp, was received in a fiduciary capacity, and therefore not embraced within the terms, and could not be discharged under, the bankrupt law. Not for the erroneous finding of a fact, but for deducing the legal result from

Bissell v. Couchaine.

Dec.

1846.

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In Bank. the fact, that the debt was created in a fiduciary capacity, the

", error is assigned, and this Court is called upon to revise the

judgment of the Court below. What is a fiduciary capacity, is a question of law; and if the Common Pleas erred in applying the law to the facts, the judgment is erroneous. It is, perhaps, only necessary to refer to the case of Chapman v. Forsyth et al., 2 Howard's Rep. 202. The Supreme Court of the U. States holds this language:

"The second point is, whether a factor, who retains the money of his principal, is a fiduciary debtor within the mean. ing of the act ?

“If the act embraced such a debt, it will be difficult to limit • its application. It must include all debts arising from agen

cies; and, indeed, all cases where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left but few debts on which the law could operate. • In almost all the commercial transactions of the country, con

fidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a • disregard of a trust. But this is not the relation spoken of in • the first section of the act.

“ The cases enumerated the defalcation of a public officer,' executor,' administrator,' guardian,' or trustee'are not cases of implied, but special trusts; and the other • fiduciary capacity,' mentioned, must mean the same class of • trusts. The act speaks of technical trusts. A factor is not, • therefore, within the act.

“ This view is strengthened, and indeed made conclusive, • by the provisions of the 4th section, which declares that no "merchant, banker, factor, broker, under-writer, or marine • insurer,' shall be entitled to a discharge who has not kept · proper books of accounts. In answer to the second question, • then, we say, that a factor, who owes his principal money,

received on the sale of his goods, is not a fiduciary debtor within the meaning of the act.”

Darling and others v. Peck and others.

1916.

If a factor is not within the act, when he refuses to pay to In Bank. the principal the money in his hands for the sale of goods, why Dec. Term, is the plaintiff in error, who received $100 on his own note of indemnity, but which he promised to pay in discharge of the obligation for which his was taken ? It was a debt created ; but not a special, technical, or express trust. If a trust, legally speaking, was created, a bill in equity, to compel an account and a decree for its execution, would be an appropriate remedy; but we think the most careless and unskillful solicitor would hardly dream of that form of remedy in the case at bar.

Judgment Reversed.

Cyrus Darling and others vs. Erasmus D. PECK

and others.

Debt may be maintained upon a bond for the redelivery of property under the act

authorizing the appraisal of personal property levied on execution. A bond duly executed during the existence of that statute, is valid, and suit may

be brought for the breach of the same, notwithstanding the expiration of the act. The common law remedy remains, though the statutory reinedy is gone. Parol proof of the demand of other property than that named in the writ, is com

petent; it being proof of an extrinsic fact not required to be made a part of the return of the officer, and not an attempt to alter or enlarge the return by parol.

This is a WRIT OF ERROR to the Court of Common Pleas of Wood County.

The record shows that on the 28th June, 1842, the defendants in error recovered a judgment against Darling for one hundred dollars debt, besides costs; that on the 19th October, 1843, execution was issued on that judgment, and levied on property which was not sold for want of bidders; that on the 220 November, 1843, a vendi. issued, but the constable, being still unable to sell the property, took from the defendant in the

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