premises, or shall constantly violate the landlord's rules and regulations governing said premises, in any such case the said landlord may pursue any of the remedies now provided by law for the removal or punishment of said tenant, this law to the contrary notwithstanding."

pany purchased this change by giving to the State one thousand shares of the capital stock, equal, at par, to fifty thousand dollars. Subsequently, but early in the year 1832, another thousand shares of stock were given to the State, who in consideration thereof, covenanted that it should not be lawful, during the charter, to construct any railroad for transportation between New York and Philadelphia without the consent of this company. This act however reserved a right to

The rights of woman were enlarged by another of New Jersey's laws at the last session. She was made by it eligible to be a commissioner of deeds for New Jersey resident in another State. And it has been stated that at least one woman has since been appointed.

The rock wears away under successive waves. But why cannot woman and the self-asserting friends of her rights see that to her nature has given an influence through which she wields a power far greater than any which can grow out of legal authority ?-an influence which diminishes just in proportion as the sex acquires legal power. And as to this particular case, what was the necessity for extending to her the sublime duty of taking the acknowledgment of a deed?

Perhaps a more praiseworthy effort to ameliorate the condition of the sex is another enactment to wit: That female employees in any manufacturing, mechanical or mercantile establishment in the State shall be provided with suitable seats and permitted to use them, when possible; this under a penalty of twentyfive dollars for any violation of the rule. There was rather a large proportion of unmarried gentlemen of the bar in New Jersey's last Legislature. But this is not a bad law. I wish though that somehow it might be unnecessary. It has always seemed to me deplorable that women should be employed in factories. Yet it is perhaps among the necessities of advanced civilization.

An act supplementary to that respecting idiots and lunatics seems to be taken from the Lunacy Regulation Act. 16 and 17 Vict., ch. 70, § 123 (which itself, I suppose, was mainly declaratory), making continuing lunacy a ground for a dissolution of partnership by decree in chancery.

The chief achievement of the last legislature of New Jersey was the change of the law regulating the taxation of corporations, and especially of railroad corporations. It is not perhaps generally known, that among the earliest railroads in the country were some of those in New Jersey. They were experiments, and their promoters entered upon their construction with fear and trembling. The citizens of the State were proportionably anxious for their success, and were yet desirous that they should properly contribute to the State support. The first of these corporations was the Camden and Amboy Railroad, and for the reasous given, its charter contained a provision that it should pay to the State an annual tax equal to ten cents upon each passenger, and fifteen cents upon each ton of freight which it carried, and that no other tax or impost should be levied upon the company. And the charter further provided that if the State should authorize any competing road between the two cities of New York and Philadelphia, beginning and terminating within three miles of the termini authorized for this railroad then this tax upon its business should This ten cent impost was afterward restricted to through passengers, instead of being payable for every one carried upon the road anywhere. The com

cease.

Raritan, and this the New Jersy Railroad Company was chartered to build, paying one-half of one per cent on its capital stock, originally $750,000, in lieu of all taxes and assessments. But it was provided that if any railroad was thereafter built intersecting this, so as to make a continuous line to Philadelphia, the company carrying through passengers by it should pay eight cents each passenger and twelve cents each ton of freight. Such a road was afterward built under the auspices of the Camden and Amboy. So one route paid ten cents each through passenger and fifteen cents each ton of freight, the other ten cents and twelve cents respectively. By a subsequent act these transit duties were equalized.

In 1869 these transit duties, as they were called, were abolished, and the companies thereafter paid one-half of one per cent upon the cost of all their works and property not otherwise taxed. This provision netted to the State a very considerable income. But the municipalities through which the railroad passed complained bitterly, because nothing was paid to them, apparently forgetful or careless of the fact that the payment, by increasing the revenue of the State diminished to them as well as to all the State, the quota due for State support; I stop here to say that the transit duties of ten cents a passenger, and twelve or fifteen cents a ton for freight cover all that was levied. It was a simple income tax, the fairest sort of tax ever imposed. It has been popularly believed that the State derived one dollar from each passenger, and I believe a proportional amount upon freight. But this is incorrect. No more was ever levied than is stated. This immunity from other taxation was especially distasteful to the municipalities whose territory comprised the termini of these roads. It was not confined to these corporations. Other great companies had their termini opposite New York. Some of them paid the same or a similar tax to the State, in lieu of all other taxation. Such corporations as had no such immunity soon complained that they suffered for the sin or the good fortune of their fellows, through unequal or undue taxation. The subject took strong hold of the popular mind. And in 1873 a law was passed, which it was intended should be embraced by all railroad companies, by which it was provided generally, that they should pay one-half of one per cent or any other tax already imposed on them by law upon the cost of the roads, their equipments and appendages, as a State tax, and one per cent upon the value of all other property they owned, excluding their right of way and not to exceed ten acres for terminal facilities, for the benefit of the township; this value not to be found by township officers, whose interest leaned to high valuations, and which were beyond that adopted for property generally, but by a commissioner to be appointed by and responsible to the State. This act was changed three years afterward (in 1876) by laying the tax not upon the cost, but upon the true value of the roads, their equipments and appendages, meaning by that word all real estate used in anywise as part of the plant; this true value to be found by commissioners, subject to an appeal to a judge of the Supreme Court; otherwise the act of 1873 remained.

Gradually the operation of this law renewed public

excitement. The taxes upon property in these municipalities held by citizens and the rate of taxation increased. One party laid this to extravagance, waste, corruption, and to the accumulation of tax arrears. The other attributed it to the abstraction of so much valuable property from municipal valuation and taxation. The political parties both made the increase of taxation upon corporations a part of their platforms, so when the Legislature met, every member was more or less desirous to comply with this popular outcry. Different plans were suggested. One proposed that the property of the railroad company, plant and all, should be assessed where it had its situs, by the municipal assessors, according to the valuations they should make, and the rate the municipal legislatures should establish. The companies and their advocates, on the other hand, dwelt upon the impossibility, the impolicy and the injustice of such a course. They urged that land taken for a railroad lost its value for agriculture or for building improvement, and that no township assessor could possibly make a proper valuation of the embankment or excavation as it might be, with its rails and ties, whose real worth consisted in its being part of a great whole adapted to one only purpose. They urged the temptation to partiality held out to assessors, and the impossibility of appeal, or of getting justice if appeal was taken. The whole subject of railroad taxation as practiced throughout the country was carefully discussed before legislative committees and afterward debated upon the floor. The result was an amendatory act, the language of which is scarcely clear enough to forbid doubt as to judicial construction, but which in principle adheres to the system of taxation heretofore followed. A board of State assessors values every railroad plant. A tax of half of one per cent is paid upon that to and for the State. Upon so much of the plant as lies within any municipality, exclusive of the railroad proper, one hundred feet wide, and of depot buildings used for passengers connected therewith, and upon any real estate not forming part of such plant, a tax is imposed according to the rate fixed by such municipality, but such tax shall not exceed one per cent upon the valuation made of such property constituting the plant. Outside property is taxed according to local rates and valuation.

The board of assessors consists of four members, not more than two to be members of the same political party (a description, by the way, which is hardly within the limit of what is legally determinable. For in what consists membership of a political party? And then suppose there are many political parties; a contingency not very impossible). The governor appoints with the consent of the Senate. None of them can be "interested in any railroad and canal company:" we quote the rather loose words of the act, during his term of office. Three must unite in any valuation or other official action. How this scheme will work is a question for the future. I have thought it worth description because of the general interest in railroad taxation. It is of the last importance that there should be an identity in the mode of such taxation everywhere. For the plant of a railroad is a unit, and yet some if not most of our great railroads pass through several States. Valuation of the plant necessarily includes a valuation of the franchise, and how are these States to apportion their rights in that? Again the equipment of a railroad is always very costly and valuable. Shall all of it pay a tax in every State through which the road runs? And what valuation is to be put upon the right of way, the occupation for which ruins every strip of land taken, for all ordinary purposes? Are the municipalities to assess, and worse, how are they to collect their taxes? Shall they break up a railroad line by sale of the iron,

the ties, or the right of way in a particular taxing district? Again what of the bonds, mortgages, and income, due by almost every railway company? Shall the plaut be taxed at its valuation, without regard to its incumbrarces? And if not, or whether or not,how are municipalities to guage their special rights in a gross sum realized by taxation?

The new board of assessors established by New Jersey are to apportion to each municipality through which its railroads run how much each is to receive. I do not think their task is an enviably easy

one.

I quote from an interesting and valuable report made to the Massachusetts Legislature in 1880 some observations upon this difficult and important subject:

"On examining the State systems in present use in this country, it will at once be observed that they are much more varied than would naturally be supposed, or perhaps than would have been thought possible. Generally it may be said, there is no one principle running through the various systems, and further, that there is no method of taxation possible to be devised which is not at this time applied to railroad property in some part of this country. So far as those now well recognized principles which should be at the basis of all systems of taxation are concerned, they would as a rule seem to have been utterly ignored. In two adjoining States, for instance, with roads belonging to one company, operative in both, will be found on one side of the line a system simple, direct, equitable, imposing a moderate and fixed burden from which there is no escape; while on the other side of the line will be met a system which can be said to be based on nothing more reliable than ordinary guess work. In certain States the railroads are apparently looked upon as a species of wind-fall from which every thing which can be exacted in the way of taxation is so much pure gain. In other States they escape with very slight and sadly disproportionate burdens. The franchise tax, the personal property tax, the realty tax are all met with indiscriminately; applied sometimes by local boards, sometimes by boards of State equalization, but almost invariably in utter disregard of any principle. A more striking and in some respects dis couraging example of general confusion as regards an important matter of fiscal legislation could hardly be imagined."

I cannot help expressing my individual preference for the method of railroad taxation recommended by this Massachusetts committee; a percentage upon gross receipts; the State to take to herself so much of the amount realized as is deemed right, and to divide the remainder among the municipalities upon the line according to the number of miles within their boundaries. Real estate, not part of the plant to be assessed locally. Real estate, forming part of the plant

not.

A little act, apparently premonitory, perhaps experimental, provides that "whenever any wire or cable used for any telegraph, telephone, electric light, or other wire or cable for electric purposes, is or shall be attached to or does or shall extend upon or over any building or land, no lapse of time whatsoever shall raise a presumption or justify a prescription of any perpetual right to such attachment or extension."

New Jersey has passed another act, richly worth notice, but of no great length. Improvident or unpaid workmen have been tempted to sell their claims for wages, sometimes even ahead of their being earned, and sharpers have been greedy to buy them, almost always at oppressive discount. This practice has become very rife; especially among employees of railroad companies, who are sometimes unhappily quite irregular in their payments. To protect this highly

deserving class, the act alluded to has become a law. It declares that it shall not be lawful for any person to purchase or have assigned to him any wages due or to become due for any price less than their amount, except upon discount at legal interest. And it punishes the breach of the law, on conviction, with a severe fine. This act tends to save the workman from himself.

An act authorizing one member of a dissolved firm to make a separate compromise with its creditors, without the release to him discharging his co-partner, seems to be a noteworthy change.

There is a statute among the new session laws of this State entitled, "An act to regulate the holding of aud to prevent fraud in the primary elections of the several political parties in cities of the State of New Jersey." It provides that officers of primary elections shall take an oath for faithful performance of their duties, in accordance with the laws of the State and of the United States, and in accordance with the rules and regulations of his party; and it makes disobedience to these rules, the rejection knowingly of the vote of any person entitled to vote under these rules, or the reception knowingly of the vote of any persou not qualified, and any willful fraud in the election, a misdemeanor, punishable by fine and imprisonment.

With great deference to the Honorable, the Legislature of my native State. I must think that they have opened a new field for legislation, and passed a law which the courts will hardly sustain. To send a man to prison for disobeying rules which certainly have not the force of law, and cannot have it, will be a new thing indeed. There are some entities which the law has never recognized, and which it seems impossible that they ever should recognize; and one, if not the chief of them, is party. If this act stands, why not make it a legal crime to break the rules of a religious denomination, or of the Masonic order, or the order of Odd Fellows, or the by-laws of any corporation or the like? In fact, such an act would be more reasonable, since if there be any thing which the law, as such, ignores, or concerning which it at least maintaius a state of unconsciousness, it is the political parties which control the republic.

New York, as we have seen, interdicts telegraph and other poles. New Jersey, by a special act subsequent to that already noticed, permits the use of highways for them, but requires that it be with the consent of owners of the soil. In the same act under-ground wires are permitted without requiring that consent. The owners of property contiguous, by New Jersey law,own to the middle of all highways. It would seem as if law makers had been slightly oblivious of individual right.

An act of New Jersey authorizes city councils by ordinance to establish the depth and mode of construction of foundation walls in order to the protection of adjacent owners. Again it would seem risking the invading private right; for must not every case differ where adjacency needs protection?

The statute of the United States for the enforcement of the civil right of people of color, and which in certain respects was declared void by the Supreme Court, because beyond the provision of the Federal Constitution, has been substantially reproduced in New Jersey, which has enacted that all persons within her jurisdiction shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land and water, theatres and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. The example thus set should be everywhere followed; such civil rights de

pend not upon Federal but State authority. It may be that this law is simply declaratory. But the declaration is good policy.

I do not know that it is to the credit of New JerseyI do not myself think it is-but it is the fact, that more "noteworthy" new laws have come from her than from any one of her sister States. It does not in my judgment afford an argument, either, against biennial legislative sessions.

But is not the groan of Solomon, "of the making of books there is no end," a mistranslation? Did he not really say, "of the making of laws there is no end?" There is one recommendation of the legislation of New Jersey; it covers little printed space, at least compared with former experience. State of railroads and corporations as it is, its session laws of 1873 made a book of 1600 pages; those of 1874, another of 1300; of 1875, over 1000. Then came into operation a constitutional amendment providing that "the Legislature shall pass no special act conferring corporate powers, but shall pass general laws under which corporations may be organized and corporate powers of every nature obtained;" since which their volumes rarely exceed 300 pages. But a more valuable effect is that "lobbyism" is greatly diminished, and so is corruption; diminished, I say, for unfortunately it is not dead. Nor as long as human nature remains what it is, can we, I suppose, look for its entire extirpation.

The first act I have marked as "noteworthy" in the recent statutes of Pennsylvania is identical in language with that noticed from New Jersey, forbidding lapse of time to raise any presumption of right in those who stretch telegraph or electric wires over other peoples' land; indication this, that this class of trespass exists everywhere.

Act No. 16 has at least a worthy object. It is entitled "An act to authorize the creation and to provide for the regulation of voluntary tribunals to adjust disputes between employers and employed in the iron, steel, glass, textile fabrics, and coal trades." Its preamble tells the story. It reads thus: "Whereas differences arise between persons engaged in the iron, steel, glass, textile fabrics, and coal trades in this State, and strikes and lock-outs result therefrom, which paralyze these important industries, bring great loss upon both employer and employed, and seem to find their only solution in force, which does not accord with the teachings of humanity and the true policy of our laws, and whereas voluntary tribunals, mutually chosen, with equality of representation and of rights, and a frank discussion therein by the persons interested of the business questions involved, are the plain paths to mutual concession and cessation of strife, and the choice of an umpire by the parties themselves, to whose arbitrament the matters in dispute are to be submitted for final decision, if they shall fail to agree, is in accord with the practice and policy of this Commonwealth." The statute then goes on to provide with the greatest care for the constitution of such tribunals, aud for their procedure. The bar is excluded. The umpire is sovereign, and the court enforces his judgment.

No one can help wishing this scheme every success. It may tend to mitigate, if it cannot be expected to destroy, that strife between labor and capital which is looming up as the great cloud upon our future. Our country presents to view on the one side, the most colossal and speedily acquired wealth-on the other, but too often, the most hideous and sickening poverty. Capital and labor should always be close friends. So they will be in proportion as they each eschew selfishness. But alas! Capital forgets that it is a trustee. And labor resorts to combination, and through it. resolves to have what it thinks its own.

What histories are written in the words "strikes and lock-outs;" what horrors may not be prepared for a future not so very far away! The Molly Maguires of Pennsylvania show to what combination may come. The excesses there are checked, and as long as trade is reasonably flourishing, they seem no longer possible. But as population-and especially foreign populationincreases, and the masses of ignorance in our great cities and in mining and manufacturing districts accumulate, what is to become of capital, of property in every and any form, when some panic prostrates trade, and starvation fires the passions of the legions of labor, educated by secret societies in communism, and extenuated, if no more, by the presence everywhere of voluptuous luxury! Oh! for the statesman to appear who shall solve the enigma presented by the almost natural and unavoidable hostility between these two great forces, capital and labor!

An act to enforce the provisions of the 17th article of the Constitution, relative to railroads and canals, interdicts all undue or unreasonable discrimination in charges or facilities for freight, directs that charges be uniform, and enacts that if directors or employers shall be directly or indirectly interested in railroad business, they shall be guilty of a misdemeanor and punished by fine and imprisonment.

Another act escheats to the Commonwealth the telegraph lines and property of telegraph corporations, associations and companies, which violate the provisions of the Constitution prohibiting the consolidation or the holding of a controlling interest in the stock or bonds of a competing line of telegraph, or the acquisition by purchase or otherwise of any other competing line of telegraph.

These acts, and the Constitution they are intended to enforce, tell the story of the sins of corporations in the State of William Penn, and show that a struggle against the oppression of corporate power is going on. An act of a different cast from the last which directed an escheat, enables filii nullius, born of the same mother, who leave neither mother nor issue capable of inheriting, surviving, to take and inherit from each other as next of kin and heirs in fee simple, in the same manner as children born in lawful wedlock.

Another act forbidding the consolidation of competing corporations refers to pipe lines es cheating them, also in case of consolidation to the State.

Another act (and most righteously) prohibits political parties, committees or members thereof, from assessing upon or demanding from public officials, contributions for political purposes.

Another takes pauper children away from poorhouses, and places them in families or in public houses.

Another requires all convict-made goods to be branded as "convict-made." This, I suppose, as a means of lessening their competition with ordinary manufactures.

Another enacts that in case of entailment express or implied, any claimant under the tenant in tail by conveyance in fee or by judicial sale may bar the entailment as fully as the tenant in tail could.

These are all the public acts of note in a book of 376

violence with dangerous weapons provalent; and alas! of a fatal readiness to regard most crimes as offenses so largely against the individual, that compromises of the offense are to be almost assisted.

They tell of embezzlements through falsification of entries, and destruction of books, and of shrewd writings and telegrams in others' names, leading to loss of reputation, position and standing. They give us a picture of Wall street and its neighborhood, with its forests of telegraphic poles, and its spider webs of telegraphic wires. They show the dangers to employees, and to travellers, of their railroad travel. They recognize the gravity of the complaint prevalent as to convict labor, while yet the State is not ready with the remedy.

New Jersey, home of railroads beyond almost any other, proportionable to territorial extent, a State too in manufactures equally eminent, gives up the time of her Legislature mainly to seeking to make these railroads pay fairly for the privileges they enjoy, and to comforting and protecting operatives.

Pennsylvania, specially the State of miners and manufacture, provides diligently against strikes, and being the home of many powerful corporations, contends by enactments against their abuse of power, and its extension by the fearful plan of consolidation. It seems deducible from the tenor of legislation, that in these middle States the struggles between capital and labor is more violent than in the eastern. It seems as if society was more turbulent, and its working classes more dangerous.

C. Bainbridge Smith, for plaintiff in error. Albert A. Abbott, for defendant in error. BRADLEY, J. In October, 1871, Henry Clews & Co. opened a line of credit on their Loudon house of Clews, Habicht & Co., for £6,000 in favor of Hennequin & Co., a firm doing business in New York and Paris, authorizing the latter to draw from time to time bills of exchange on the London house at ninety days from date, with the privilege of renewal, it being agreed that Hennequin & Co. should remit to Clews, Habicht & Co., a few days before the maturity of each bill, the necessary funds to meet and pay the same, so that Clews, Habicht & Co. should not have to advance any money to pay it. In consideration of such accommodation acceptances, Hennequin & Co. deposited with Clews & Co. certain collateral securities, for the purpose of securing them, in case Hennequin & Co. failed to remit the requisite funds to pay the said bills of exchange, amongst which collaterals were twentynine Toledo railroad mortgage bonds, for $1,000 each. Clews & Co. used the said bonds by depositing them *Affirming 77 N. Y. 427; S. C., 33 Am. Rep. 641, note.

with third parties as collateral security to raise money for their own purposes, although not called upon to make any advances to pay the bills of Hennequin & Co., all of which were protected and paid according to agreement. After the bills were all retired, Hennequin & Co. demanded a return of the collaterals; but Clews & Co. having failed in business, did not return them. Thereupon to recover the bonds, or their value, and damages, this suit was brought in the Superior Court of New York city by Hennequin & Co. against Clews & Co. and the parties with whom they had deposited the bonds. The suit was dismissed as to the latter parties, and Clews & Co., amongst other things, pleaded that on the 18th of November, 1874, they were adjudged bankrupts under the laws of the United States, and that a trustee was appointed, who succeeded to all their interest in said securities; and by a supplemental answer, filed afterward, they pleaded their discharge in bankruptcy. The following is a copy of the substantial part of this answer, namely: "The supplemental answer as amended of the defendants, Heury Clews and Theodore S. Fowler, to the complaint in this action, served by leave of the court first had and obtained, shows to the court that subsequent to the service of the original answer herein, in pursuance of the bankruptcy proceedings mentioned in said answer and the order of the court of bankruptcy, the District Court of the United States for the Southern District of New York, sitting as a court of bankruptcy, did make an order and grant to said defendants certificates of discharge under seal of said court on the 24th day of December, 1875, discharging the above-named defendants and each of them from all debts and claims which by the Revised Statutes, title Bankruptcy, are made provable against the estate of said defendants which existed on the 18th day of November, 1874, excepting such debts, if any, as are by said law excepted from the operation of a discharge in bankruptcy. * * * And the defendants further allege that the claim and indebtedness set forth in the plaintiff's complaint herein is one that was discharged by the operation of said bankruptcy discharge, and was provable in said bankruptcy proceedings, and was not one which was exempt from the operation of the bankruptcy statutes."

Copies of the certificates of discharge were annexed to the answer.

The parties thereupon went to trial, and the facts disclosed by the evidence were substantially in accordance with the above statement. The certificates of discharge of the defendants were given in evidence under objections; and the plaintiff asked to go to the jury on the question as to whether the debt was created by fraud, and also on the question whether it was a debt created by the defendants while acting in a fiduciary character; both of which requests were refused, and the court directed the jury to render a verdict for the defendants; to all which rulings and directions plaintiffs duly excepted. Judgment being entered for the defendant, the plaintiffs appealed to the Court of Appeals of New York, which affirmed the judgment, and remitted the record to the Superior Court. The case is brought here by a writ of error; and we have to decide the question, whether a discharge in bankruptcy under the act of 1867 operates to discharge the bankrupt from a debt or obligation which arises from his appropriating to his own use collateral securities deposited with him as security for the payment of money or the performance of a duty, and his failure or refusal to return the same after the money has been paid or the duty performed? or whether a debt or obligation thus incurred is within the meaning of the 33d section of said act (§ 5117 of the Rev. Stat.), which declares 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"? The New York courts decided that the effect of the discharge in bankruptcy was to discharge the debt, holding that the debt was not created by fraud, nor by embezzlement, nor whilst the bankrupt was acting in a fiduciary character.

The question first came up for discussion in the case upon an order for arresting the defendants, on a charge that the debt was fraudulently contracted. After obtaining their discharge in bankruptcy, the defendants moved to vacate the order of arrest, which motion the Superior Court denied; but the Court of Appeals reversed this judgment, and granted the motion. The opinion of the court on this occasion is reported in 77 N. Y. 427, and was referred to as the ground of judgment when the case finally came up on its merits.

The question, so far as relates to the principle involved, is not a new one. It came up for consideraation under the Bankrupt Act of 1841, which withheld the benefits of the act from all debts "created by the bankrupt in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity" (5 Stat. 441, § 1); and which further declared (amongst other things) that no person should be entitled to a discharge who should "apply trust funds to his own use." Id., § 4.

In the case of Chapman v. Forsyth, 2 How. 202, these clauses were brought before this court for examination. The case was an action of assumpsit for the proceeds of 150 bales of cotton shipped to and sold by the defendants as brokers or factors of the plaintiff. One of the defendants pleaded a discharge in bankruptcy and the judges of the Circuit Court were divided in opinion on the question whether a commission merchant or factor, who sells for others, is indebted in a fiduciary capacity within the act, if he withholds the money received for property sold by him, and if the property is sold, and the money received on the owner's account. The opinion of this court was delivered by Mr. Justice McLean, and the above question was answered in the following terms: "If the act embrace such a debt, it will be difficult to limit its application. It must include all debts arising from agencies; 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, 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 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, and not those which the law implies from the contract. A factor is not therefore within the act. This view is strengthened, and indeed made conclusive by the provision of the fourth section, which declares that no 'merchant, banker, factor, broker, underwriter, 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."

This decision was of course authoritative; it was not only followed, but approved by the highest courts of several of the States. In Hayman v. Pond, 7 Metc. (Mass.) 328, the Supreme Court of Massachusetts,