New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-04-04

oct Of 1867 provides that no debt created
az The traud or embezzlement of the bank
mi or by his defalcation as pubic on
cor or while acting IN any tduclary chaT-
acter. shall be discharged under TINS ac..
In the present case there Is evidence that
Weed l. Co got the whole OF the III bales
of cotton from the plaintiff through Iodd,
Ubo acted for said Weed Il Co. IL the ca
nacity Of agent; that the cotton was worth
fhe price herein claimed for il; that Weed
& Co. converted the cotton 10 their own
use and have never accounted toT the same
TO Edwards. In the permit gwen 10 Weed
& Co.. to bring the cotton IN dispute from
Hog Point anC tie mouth OF ReG river,
then within the Confederate lines. 20 New
Orleans, the names OF j. TODD, SamueI
Armitage and oEe Parker, are inserted IN
der the designation OF ''employes. ms
fact is strong collateral evidence 20 dlssl-
pate the theory o: defendants that Todd
was not an agent or emplOye OF weed q
Co., but had bought the cotton on his own
account and sold It 70 them.
regard il as fully proven that ~ eed
Co. received The cotton OF plalntd en-
trusted 10 them for SAFE 10Y the purpose OF
rendering him az account OF and paying
over the proceeds OF sucl sale, ana that his
failure 10 10 so was breach Of trust. The
debt due by Weed 81 Co. 10 plaintiff for
out of a tiducIary transaction. because OF
the aforesaid relation OF the parties TO each
other. If the defendants, as factors, alter
selling the plaintiffs cotton, had informed
him of the fact and had offered to pay the
proceeds. and plaintiff had allowed MN the
use of the money. the Iduclary character OF
the transaction would have ceased and the
defendants would owe but an Ordinary
debt. In this case there had been 70 other
. Ia WIN M re p
of other accounts by the factors, Weed &
Co no permission was given 10 them to re-
tain the funds in their hands, or 70 mlngle
the same with their own moneys or assets.
Under those circumstances It can not be
said that the fduciary debt was merged
into an ordinary obligation.
Defendants contend that ever II they
were indebted to the plaintiff for the pro-
ceeds of said cotton. the debt under the
statute of 1867 was not a rdUciary debt.
In support Of this proposition, they rely on
the decision 81 the Supreme Court OF the
United States in the case o. Chapman vs..
Forsyth, , Howard p. 2US, in which II was
held that the deb due from the factor Tor
the proceeds of goods sold for his principal
is not a fiduclary debt. That case arose
under the bankrupt law OF 1871, which was
intended to be only temporary and to afford
relief for the financial prostration OF the
or three years thereafter. That law was
repealed in 1913. The act Of 1871 saws:
All persons whatsoever residing IL any
State, district or Territory Of the United
States, owing debts which shall not have
been created in consequence OF Getelca-
ton as public officer, or as executor, ad
ministratOr. guardian or trustee, or While
acting IN any other tiduciary capacity, who
shall" etc ) Stat. at Large PIP. $40, I'll.
=, =, a.,tf la 60 70 1t q
second of March, 1867, provides: That
no debt created ty the fraud or EN-
bezzlement of the bankrupt. or hy
his defalcatiOn as public officer, Or
while acting in any 1iduciary capacity
shall be dischal ge0 under this act. 1t IS
argued that the provisions OF the two acts
are identical; hat they mean the same
thing; that the word tduclary Is used N the
same sense in each. Ia the one, debts con-
tracted by defalcation while acting as eX-
ecutor. guardian, or trustee, or in any other
tduciarv CAPACITY. are excluded from dis
charge granted under the act: in the Other,
debts contracted by Getalcation While acting
in any tiduciarv capacity are excluded.
The judiciary gave the act OF 1871 liberal
construction in favor Of the Debtor. he
law of 1867 was elaborated. and beng H.
tended to be permanent, has been carefully
amended as its working indicated changes
to be necessary. Congress, IN the act OF
1867, changed the entire text of the bank
rupt law OF 1871. do not regard the legal
meaning of the word fdUciary to be the
same under the present bankrupt law as Il
was under the law Of 1871. According 70 It's
exposition in the case OF Chapman vs.. For
syth. the tiduclary capacity. under the act
OF 1871. was eXempIltled by the use O. the
words executor. administrator. guardian
and trustee. and persons IN any other tdu-
rly in q '