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DIGEST OF ENGLISH LAW REPORTS FOR

SEPTEMBER.

ATTORNEY.

1. Agreement with client as to costs. — An agreement by an attorney with a client "to charge him nothing if he lost the action, and to take nothing for costs out of any money that might be awarded to him in such action," need not be in writing. Jennings v. Johnson, L. R., 8 C. P. 425.

2. Practice: action brought without authority: staying proceedings. Where an attorney brings an action without the authority of the plaintiff, the plaintiff is entitled to have the proceedings stayed without payment of costs. Reynolds v. Howell, L. R., 8 Q. B. 398.

AGENT.

1. Company: director: warranty of authority: misrepresentation of fact. The directors of a railway company which had fully exercised the borrowing powers conferred upon it by its special act, in August, 1864, advertised that they were "prepared to receive proposals for loans on mortgage-debentures," to "replace loans falling due." W. W. (the plaintiff's testator), offered a loan of 500l.; and, his offer being accepted, he in the same month sent his check for 500l. to the directors, for which he requested that a debenture should be issued to him. In pursuance of a resolution of the directors to that effect, the check was handed to H., the contractor for the works, who had been (but had then ceased to be) the holder of seven debenturebonds for 500l. each; and H. was requested to transfer one of them to W. W.; and it was, by the same resolution, directed "that such bond be on the 1st of October exchanged for a new one." H. kept the check (which was duly honored), but was unable to transfer the debenture; and in pursuance of a resolution of the directors of the 5th of October, a new debenture-bond for 500l. was sealed and sent to the plaintiff, as executor of W. W. The defendant, a director of the company, was a party to each of the above transactions. By a decree of the court of chancery of the 14th of February, 1868, the above-mentioned debenture was declared void, as being for a sum in excess of the borrowing powers of the company. Upon a case stated for the opinion of the court, without pleadings, and upon the argument of which it was agreed that no question of non-joinder was to be raised. Held, that the defendant was liable as for a breach of warranty; that the directors had power under the circumstances to issue a debenture, which would be valid and binding upon the company; and that the plaintiff was entitled to recover as against him the 500l., together with interest by way of damages. Weeks v. Propert, L. R., 8 C. P. 427.

2. Indemnity of agents: stock exchange usage: defaulting broker. The plaintiffs, brokers on the London Stock Exchange, bought for the defendant (who was not a member of the Stock Exchange), certain shares for the account of the 15th of July, 1870, and on that day, by his instructions, carried them over to the account of the 29th of July, and paid differences amounting to 1688 pounds. The defendant, and various others, principals of the plaintiffs, not having paid the amount due from them in respect of contracts for the 15th of July, the plaintiffs became defaulters, and on the 18th, in conformity with the rules of the stock exchange, they were declared defaulters, and their transactions were closed, and accounts were made up at the prices current on that day. On the closing of the accounts,

a further sum became due from them, in respect of differences upon the contracts carried over by them for the defendant. In an action to recover this sum and the 1688 pounds

Held (reversing the decision of the court below), that the defendant was not liable for any thing beyond the 1688 pounds, there being no implied promise by a principal to his agent to indemnify him for loss, caused, not by reason of his having entered into the contracts which he was authorized to enter into by the principal, but by reason of his own insolvency. Duncan v. Hill, L. R., Exch. 242.

FOREIGN SOVEREIGN.

Jurisdiction of the court to entertain a suit of damage instituted against a vessel belonging to the Khedive of Egypt: sovereign prince: maritime lien: proceedings in rem: waiver of privilege.—In a cause of damage instituted by the owners, master, and crew of the Batavier against the vessel Charkieh and her freight, an appearance under protest was entered on behalf of his highness the Khedive of Egypt and his minister of marine. A petition on protest was filed on their behalf, stating that the Charkieh was the property of the Khedive as reigning sovereign of the State of Egypt, and a public vessel of the government and semi-sovereign State of Egypt, and concluding with a prayer to the court to declare that the vessel was not liable to arrest. It appeared from the answer filed on behalf of the plaintiffs, and from evidence which was adduced at the hearing of the petition on protest, that the Charkieh, though carrying the flag of the Ottoman navy, had come with cargo to England and had been entered at the customs like an ordinary merchant ship, and that, at the time of the collision, which happened in the Thames, she was under charter to a British subject and was advertised to carry cargo to Alexandria. The court held that the Khedive was not entitled to the privilege of a sovereign prince, and pronounced against the protest. Semble, that a suit in rem to enforce a damage lien may be entertained without any violation of international law, though the owner of the res be the sovereign of a foreign State, and that such a suit may possibly be entertained even against property connected with the jus coronæ. Semble, that if a sovereign assumes the character of a trader, and sends a vessel belonging to him to this country to trade here, he must be considered to have waived any privilege which might otherwise attach to the vessel as the property of a sovereign. The "Charkieh," L. R., 4 Adm. 59.

NEGOTIABLE INSTRUMENT.

Debenture payable to bearer: promissory note: custom. -In May, 1869, the defendants, a limited company registered under the act of 1862, sold to M. a document under the seal of the company and signed by two directors and the secretary. It was numbered and headed with the name of the company, and called "Debenture," and proceeded, "The company hereby promise, subject to the conditions indorsed on this debenture, to pay to the bearer 100l. on the 1st of May, 1872, or upon any earlier day upon which this bond shall be entitled to be paid off according to the conditions, and interest at eight per cent on the 1st of November and the 1st of May in each year; and also a further sum of 101. by way of, interest or bonus at the same time as the principal sum is paid off. In witness whereof the common seal of the company has been affixed this 9th of May, 1869." By the conditions indorsed, a certain numer of the bonds were to be drawn for twenty-one days before

the days for the payment of the half-yearly interest, and any bond drawn was to be advertised and paid off with the interest and bonus due, the bond being given up and no further interest being payable. In July, 1869, the bond was stolen from M. In October, 1871, the number of the bond was drawn. At the end of 1871, the plaintiff purchased the debenture from S., who had since absconded. The defendants, having notice of the robbery, refused to pay the debenture to the plaintiff, and he brought an action in his own name, alleging that he was lawful bearer of the debenture. At the trial it was admitted that similar documents had been treated as negotiable; it was also admitted that the plaintiff derived title from the thief; but the jury found that the plaintiff had given value for the debenture without notice. Held, first, that the contract contained in the conditions prevented the debenture from being a promissory note, even if it had been under hand only; secondly, that it was not competent to the defendants to attach the incident of negotiability to such instruments, contrary to the general law; and that the custom to treat them as negotiable, being of recent origin, and not the law merchant, made no difference, as such a custom, though general, could not attach an incident to a contract contrary to the general law. And the plaintiff, therefore, could not recover. Quare, whether an instrument under the seal of a corporation can be a promissory note? Crouch v. The Credit Foncier of England, Limited, L. R., 8 Q. B. 374.

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NUISANCE.

Insecure coal-plate in a public footway: liability to repair. The defendant let premises to a tenant under a lease by which the latter covenanted to keep them in repair. Attached to the house was a coal cellar under the footway, with an aperture covered by an iron plate which was, at the time of the demise, out of repair and dangerous. A passer by, in consequence, fell into the aperture and was injured. Held, that the obligation to repair being by the lease cast upon the tenant, the landlord was not liable for this accident. Pretty v. Bickmore, L. R., 8 C. P. 401.

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SHIP.

Construction of charter party: warranty as to time of ship's arrival at the port of loading: pleading: contemporaneous agreement. - By a charter party it was agreed that the ship Ceres, of the measurement, etc., 'expected to be at Alexandria about the 15th of December," being tight, etc., should, "with all convenient speed," sail and proceed to that port, and there receive from the charterers a cargo of cotton seed. In an action against the owner, the breach alleged in the declaration was, that the said ship was not expected to be at Alexandria about the 15th of December, 1871, but was then in such part of the world and under such engagements that she could not perform those engagements and arrive at Alexandria about the said day. Held, a good breach—the descriptive statement amounting to a warranty that the ship was in such a position that she might reasonably be expected to arrive at Alexandria by the day named. Plea, that, at the time of making the charter party, the ship was, to the plaintiff's knowledge, engaged for a certain voyage, and that the charter party was made subject to a condition that she should, with all convenient speed, fulfill her engagement and then proceed to the port of loading, and that she did so. Held, upon the authority of Young v. Austen, L. R., 4 C. P. 553, a good plea. Corkling v. Massey, L. R., 8 C. P. 395.

REVIVOR AND ABATEMENT. We give below the opinion of Mr. Justice Barrett at the special term, supreme court, first department, In re Alker, public adm'r., etc. His views are sustained by the general term in same case, see 8 Alb. L. J. Barrett, J. The referee non-suited the plaintiff, judgment was entered thereon, and subsequently, upon the plaintiff's motion, the court, at special term, vacated the judgment, set aside the report, declared the reference ended, and ordered the cause back upon the circuit calendar for trial. From this order the defendants appealed, and intermediate the perfecting of such appeal and the hearing at general term, the plaintiff died. Nothing was done to continue the action, and the appeal was heard and decided as though the plaintiff upon the record were alive. The question is, whether this was regular, and whether the order having been reversed except as to the racatur of the judgment, the defendants could, without the presence of the plaintiff's legal representatives, lawfully re-enter judgment. If the appeal had been from the judgment, there would have been no question about it, this court, at the general term, having decided that in such a case, the only proper course to obtain an affirmance is to have an administrator appointed and the action revived in the name of such administrator. (Warren v. Eddy, 13 Abb. Pr. 28.) The claim is of an analogy between the case at bar and that of the death of a party between verdict and judgment. In the latter case, the statute expressly confers the power within two terms after such verdict, of entering judgment as was done here, in the names of the original parties. (2 R. S. 387, § 4.) It has been held, however, that the statute only applied to a verdict or plea of confession, and that a nonsuit was not included. (Spaulding v. Congdon, 18 Wend. 543.) The same rule has been laid down in England under a similar statute. (Doubiggin v. Harrison, 10 Barn. & Cres. 480.) It is true that a report of a referee comes within the spirit of the act. (Burham v. Burham, 10 Wend. 601.) But it must be final in its character. This distinction is recognized in all the cases, and it is the test of the right to enter judgment, under the statute, in the names of the original parties. (North v. Pepper, 20 Wend. 677, and see Scranton v. Baxter, 3 Sandf. S. C. R. 660, in which Seymour v. Deyo, 5 Cow. 289, is cited and distinguished in this particular of finality.)

Here the referee merely dismissed the complaint. The statute was, therefore, inapplicable, and even the original judgment would have been irregular if the plaintiff's death had occurred prior to its entry, though subsequent to the report. Apart from the statute, the court has no inherent power to enter judgment directly against a party deceased, and the provisions of the act in question cannot be extended. (Lewis v. Rapelyea, 1 Barb. 29, and cases above cited.) The only power which the court exercises independent of the statute is, where a party dies after verdict and before the decision, on a motion, for a new trial to direct the entry of judgment as of a date preceding such death. (Ryghtmyre v. Durham, 12 Wend. 245.)

But here no application has been made to enter either the order of affirmance or the new judgment nunc pro tunc, as of a date preceding the plaintiff's decease; on the contrary the defendants have entered their judgment directly against the plaintiff, as of course, and as of a date when he was not in existence. This as we have seen can only be done under the statute, and then only in the cases specified or contem

plated, of which a nonsuit whether granted by a court or referee is not one. In any case it can be affected after the lapse of the two terms only through the fiction of an entry by special leave of the court, as of a date when the party was yet alive.

But, further, leave to enter such judgment nunc pro tunc, even if properly applied for, would not have been granted. The reason of the rule is, that the party shall not be prejudiced by the delay of the court in giving judgment if it can be avoided. (2 Tidd, 965.) The delay, however, always had reference in some manner to the merits of the controversy, as motions for new trial, or in arrest of judgments, bills of exception or verdicts with leave reserved to move to enter nonsuit. There, as was said by Cockburn, C. J., in Moor v. Roberts, 3 Com. Bench, N. S. 845, "it is to be treated as though the appellate action had taken place at the trial." "Such a proceeding," he remarks, "is not under the statute, but under the ordinary inherent jurisdiction of the court. The whole is to be taken to have been done at the trial." In the case cited, the question of nonsuit also came up and the court in banco, having granted a rule absolute to enter a nonsuit, that further objection was taken and recognized, and to insure regularity of action, leave given if the defendant desired it to set aside the rule for the nonsuit, and to direct instead a verdict for the defendants. In the present case, the delay did not result from the act of the court in any such sense. The party was not delayed in entering his judgment. He, in fact, did enter it without interference, and there his rights under the statute, even upon a final report, would have ended. The vacating of that judgment, report and reference was upon collateral grounds, quite independent of the merits of the controversy. In every case where such leave has been granted to enter judgment nunc pro tunc, the verdict was, at least, in existence at the time of the parties' death. Here there was no report in existence at the time of the plaintiff's decease.

This case is more analogous to that of a verdict set aside by order of special term, for alleged misconduct of the jury and the death of the party intermediate the appeal from that order and the hearing at general term. The court is of opinion, that in such a case the action would have to be continued before the appeal from the order setting aside the verdict could be regularly heard. In every view of the matter, the judg

ment last entered herein should be set aside with ten dollars costs.

THE OCTOBER QUARTERLIES.

The American Law Review (Little, Brown & Co., Boston) has an unusually good table of contents. The opening article on “An Elective Judiciary," which we copy elsewhere, is the best discussion of the subject we have seen, not excepting Mr. Dorman B. Eaton's essay. The second article is an able discussion of "The Distribution of the Geneva Awards," and a very thorough exposure of the fallacy (to call it by no harsher term), of the conclusions of the Congressional Committee, that the money awarded "is the money of the United States, to be disposed of at its pleasure, subject to no trust, and especially to no legal rights in any individual or corporation by whom a legal or equitable claim can be set up or maintained, to any part of the sum awarded as against the United States." The Review shows that the bulk of the money awarded was upon claims of private individuals, that so far as private

claims were concerned, the United States stands solely in the place of an agent or trustee, and that with regard to insured ships, the underwriters are subrogated to the rights of the owners to the fund. In an article on "The Law of Homicide," there is a very exhaustive examination of the question whether malice may be presumed or must be proved. This was the turning point in the Stokes case before the court of appeals. The writer reaches the conclusion that "the presumption of malice from the fact of killing and a fortiori from the fact of intentional killing, has beeu firmly established in the common law from the earliest period," and "that it has only been questioned in two or three modern instances." An article on "The Reporters and Text-writers," made up of opinions expressed from the bench, or in treaties, upon the merits of the old reporters and text-writers - the usual digests, book notices, etc., constitute the remainder of the contents. The Law Review is worthy of a most generous support.

The United States Jurist (W. H. & O. H. Morrison, Washington) contains, besides its usual excellent English and American digests, book notices, legal intelligence, etc., an article on "Foreign Intervention,"

translated from Mr. William Beach Lawrence's "Commentaire Sur le Droit International." We regret to learn that Mr. James Schouler, who has conducted the Jurist from its commencement, has withdrawn from the editorial management with the present number. Mr. Schouler is an able lawyer and writer, and the Jurist can ill afford to spare him.

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DEAR SIR-Mr. Curtis, in his recent letter (8 A. L. J., p. 163), refers to the "chief justice" of the court of appeals. He is "chief judge." A recent law work is dedicated to an ex-chief judge of the the same court, as if the dignity were a permanent one in the same individual. A dedication distinguishing the object of it as chief or ex-chief judge of that court, would convey an erroneous idea to the profession abroad, unless it should particularize him as the member of the court having for the present, or during some previous term or terms, the shortest time to serve, and, therefore, chief judge by operation of law.

*

345 BROADWAY, N. Y., October 3, 1873. DEAR SIR-In (8 A. L. J., p. 174), an article from the Solicitors' Journal, on another topic than the present, occurs the following: "The difficulty is, however, that all general rules of law aiming at consequences generally beneficial, are constantly producing results

which, in the particular instance, amount to great injustice." This is an objection to the codifying of the law which has often occurred to me, and I hope will be well considered and answered before any change of the common law into statute law as a Code implies, shall become fastened upon us. Common law is the product of the enlightenment of common reason by common necessity. It varies to suit new exigencies, but without departure from the principles which are its foundation. Statute law relates to particular mischiefs which require special preventives and remedies. To codify the common law, is the confusion of these two, and limits courts to the words of the statute, or else illustrates its own uselessness by leaving them to the reason of the law as it was before the Code, which, in the case of the common law, is common reason. B. W. H.

COURT OF APPEALS DECISIONS.

The following decisions were announced on the tenth inst:

Judgments affirmed with costs-Sullivan v. The Mayor, Aldermen and Commonalty of the city of New York: Leverich v. The same; Hammersley v. The same; Douglas v. The same.Judgment reversed and new trials granted, costs to abide event - Turner v. Treadway; Maguin v. Dinsmore, Pres., etc.—Judgment reversed and judgment ordered declaring that the beneficiaries named in the codicil are not entitled to any thing from the residuary estate until it shall be ascertained by a sale of the land, that the proceeds do not amount to $30,000, with costs to all the parties to be paid from the estate - Fincke v. Fincke.- -Order of general term reversed, and order of special term affirmed with costs- Bennett v. Stevenson.- -Appeal dismissed without costs-The People ex rel. Ebenezer M. Davis v. Hill.-Appeals dismissed with costsThe Dry Dock, East Broadway and Battery Railroad Company v. Cunningham; Barry v. The Mutual Life Insurance Company; Brune v. Whitredge.

NOTES.

At the forthcoming meeting of the Association for the Promotion of Social Science at Norwich, England, a question for discussion in the jurisprudence department is this: Is it desirable and practicable to effect an assimilation of English and Foreign Commercial Law? and if so to what extent, and what steps should be taken to effect such assimilation? In connection with this it may be mentioned, that a meeting of foreign jurists has been held at Ghent and another is shortly to be held at Brussels, with the object of framing a code of international law.

THE LORD CHANCELLOR'S SALARY.- The papers laid before the house of commons' select committee of last session on the civil service expenditure, show that within living memory the official income of the chief legal functionary of this kingdom was much higher than it is at present. A communication from Lord Hatherley stated that in Lord Eldon's time, the salary of the lord chancellor, including bankruptcy fees, exceeded £20,000 a year. At a much more recent date it was as high as £14,000. Lord Hatherley says: "The last reduction was made by Lord Truro, and I had the pleasure, as solicitor-general, of introducing the bill which reduced the salary from £14,000 to its present amount of £10,000- namely, £6,000 as lord chancellor and £4,000 as speaker of the house of lords."

The examination of witnesses for the defense in the Tichborne case, says the Daily News, has already occupied twenty-three entire days, during which 129 persons have given their testimony. The average rate, therefore, is little more than five witnesses a day. The total of witnesses for the prosecution was 212, and forty days having been consumed in taking their evidence, it will be found that the average rate of progress comes curiously near to that of the pace at which Dr. Kenealy's witnesses are disposed of. Thus, since the commencement of this trial, on the 23d of April last, there have been examined altogether just 341 witnesses, occupying sixty-four days. The remainder of the 101 days on which the court has sat has been thus consumed: Mr. Hawkins' speech occupied five days; reading the claimant's examinations and affidavits on which the present indictment is based twelve days; speech of Dr. Kenealy, twenty-one days. The prosecution have notice of nearly 110 witnesses yet to come.

LEGAL NEWS.

The faculty of the law school of Kentucky University positively refuse to lecture to a class of only five students.

The fall term of the Union law school of the Chicago and Northwestern universities commenced on the 6th inst.

An ineffectual effort has been made in the Pennsylvania Constitutional Convention to increase the salaries of the judges of that State.

The attorney-general has accepted the resignation of C. R. Mobley, United States attorney for the southern district of Florida.

The late Hon. William M. Meridith, of Philadelphia, after a life of successful practice at the bar, left an estate valued at $100,000.

Hon. Jesse Gay has received the democratic nomination for judge of the supreme court for the fourth judicial district of this State.

Hon. P. Emory Aldrich, of Worcester, has been appointed judge of the superior court of Massachusetts, vice Devens promoted to the supreme court.

Chief Justice Ripley, of Minnesota, who was recently stricken with paralysis, is slowly improving in health, and his attendants entertain hopes of his recovery.

The Washington Chronicle says of Justice Miller, who has just returned from Europe:

He has reason to feel gratified with the complimentary manner in which his name has been mentioned by the bar and the press throughout the country during his absence, for the vacant chief justiceship of the court where he has already acquired fame as a jurist. Although known to be a decided republican, this commendation has come from every section without regard to political parties.

The United States District Court for the Western District of Wisconsin, in the matter of the proposed bridge across the Mississippi river, has rendered an opinion sustaining the views of Attorney-General Williams as to the authority of congress to pass laws upon the subject of bridges over the Mississippi river, and the conferring upon the secretary of war exclusive jurisdiction to approve or disapprove of the location of such bridges, and as to the conclusiveness of his action.

The Albany Law Journal.

ALBANY, OCTOBER 25, 1873.

"FIDUCIARY CHARACTER" UNDER THE BANKRUPT LAW.

One of the most important questions that have arisen under the Bankrupt Act, is as to the meaning of the term "fiduciary character," as used in the thirtythird section. This section provides "that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act." Does this section include factors and commission merchants? The decisions upon this point, though not numerous, are conflicting.

while acting in any fiduciary capacity will be discharged."

This opinion was repeated in Re Kimball, 2 B. R. 74, 114; 2 Blatchf. 554, and received the qualified approval of Mr. Justice Nelson. It was followed in Whitaker v. Chapman, 3 Lans. 155, which was an action to recover from the defendants, who were factors, or commission merchants, the proceeds, less commissions, of cheese which plaintiff had consigned to them to be sold. The defendants, severally, set up a discharge in bankruptcy, after the alleged conversion, which they claimed released them from the debt. The court held that "the debt was clearly contracted while the defendants were acting in a fiduciary character, within the meaning of our Code, and according to numerous decisions under it in our own State." Then after citing and approving Re Seymour, the court said: "The language of the act (the bankruptcy act) is general, and there is nothing in its provisions which can be construed to confine such debts to any particular class or kind of trusts." Seymour's case was also followed by the Supreme Court of Missouri, in Lemcke v. Booth, 47 Mo. 385; 4 Am. Rep. 326, the facts of which were, in effect, identical with those in Whitaker v. Chapman. The decision was based entirely upon the reasoning of Judge Blatch

The corresponding provision in the bankrupt act of 1841, excluded from its benefits "all persons owing debts created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any fiduciary capacity." Under this provision the Supreme Court of the United States decided in Chapman v. Forsyth, 2 How. 202, 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." This concluford, and the case does not therefore add strength to sion was reached largely by the doctrine of noscitur a sociis, but it none the less gave a legal significance to the language involved.

The first case under the act of 1867, involving this question, was that of In re Seymour, 1 Bened. 348; B. R. Sup. 7, wherein Judge Blatchford held that the term "fiduciary character" included commission merchants, and that their failure to return the property committed to them for sale, or to remit the proceeds to their principals, was a defalcation, while acting in a "fiduciary character." In commenting upon Chapman v. Forsyth, the learned judge said: "The Supreme Court held that a discharge under the act of 1841 did not release the bankrupt from any such debts (as were mentioned in the clause of the act of 1841, above quoted), and that no debt fell within the description of a debt created by a defalcation while acting in any other fiduciary capacity, unless it was a debt created by a defalcation while acting in a capacity of the same class and character, as the capacity of executor, administrator, guardian and trustee. The court held that the language of the act of 1841 was not broad enough to include every fiduciary capacity, but was limited to fiduciary capacities of a specified standard and character. That was clearly so under that act. But in the act of 1867, the language seems to have been intentionally made so broad as to extend to a debt created by a defalcation of the bankrupt while acting in any fiduciary capacity, and not to be limited to any special fiduciary capacity. "Therefore under the act of 1867," says the judge, "No debt created by the defalcation of a bankrupt

this view of the question.

Against this current of authority is the decision of the Supreme Court of Massachusetts, in Cronin v. Cotting, 104 Mass. 245; 6 Am. Rep. 232. This was an action of contract to recover the balance of proceeds of accepted bills of exchange, delivered by the plaintiff to defendant for collection, with directions to apply the proceeds, so far as required, to the payment of a debt due from plaintiff to the estate of defendant's husband, of which she was administratrix, and to return balance to plaintiff. The defendant interposed a discharge in bankruptcy. It was argued that this transaction constituted a fiduciary relation between the parties within the contemplation of the bankrupt act. The court said in answer: "This would require an interpretation so broad that almost all pecuniary obligations, especially those implied by law, would be included in the exemption.

"We are inclined to the opinion that the phrase implies a fiduciary relation existing previously to, or independently of, the particular transaction from which the debt arises. The collocation tends to favor this interpretation. If the phrase, "while acting," etc., be referred to that which immediately precedes, it implies something in the nature of defalcation. If it be referred to the first branch of the provision, its association with fraud and embezzlement, carries the implication of a debt growing out of some fraudulent misappropriation, or at least breach of trust.

"The debt in this case arose exclusively out of a single transaction between the parties. Its creation involved no element other than that of contract.

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