
    No. 7214.
    Louis Desobry vs. Henry Tête.
    Where a sum of money is received by a factor and commission merchant, under a written stipulation of the factor that he received the money to be invested by him for the owner’s account, the debt thus incurred by the factor is a fiduciary one, and under the United States Bankrupt Act of 1867, is not affected by the factor’s discharge in bankruptcy.
    The balance due by a factor to his client whether liquidated by the promissory note . of the factor, or not, is not, in the hands of a transferree of the client, a fiduciary debt, and therefore is extinguished by the factor’s discharge in bankruptcy.
    ^ PPEAL from the Fifth District Court. Bogers, J.
    
      Barrow & Pope and Harry L. Edwards for plaintiff and appellee.
    
      Singleton & Browne and E. W. Huntington for defendant and appellant.
    The opinion of the court on the original hearing was delivered by Marr, J., and on the rehearing by Manning, C. J.
   Marr, J.

In February, 1870, Louis Desobry, who resided in the Parish of Iberville, deposited with Henry Tete, a commission merchant of New Orleans, $22, 000, for which Tete gave him a receipt as follows : “$22,000. Received, New Orleans, February 3d, 1870, from Mr. Louis Desobry, the sum of twenty-two thousand dollars, to be invested for his account, interest on said amount to be paid every six months.”

On the eighteenth February Desobry placed with Téte the additional sum of $3000, of which. $2000 were withdrawn on the sixth February, 1871, leaving balance, $23,000, in the hands of Téte.

Téte was the factor and commission merchant of Dardenne and wife, and on February 10,1872, there was a balance due them of $2000, which Dardenne left with Téte, taking Téte’s note for the amount, at one year, to his order. On the eleventh August, 1873, Dardenne and wife transferred this note to plaintiff.

Téte was also the commission merchant of Edward Desobry; and, on the twenty-fourth January, 1873, there was a balance in his favor of $1068 48. On the fourteenth August, 1873, Edward Desobry transferred this account to plaintiff.

Tete suspended about January, 1873. On the twenty-sixth July he was adjudicated a bankrupt, on his own petition; and, in due course, he was finally discharged.

In November, 1873, this suit was brought by Louis Desobry to recover the aggregate of the several claims just mentioned, amounting to $26,065 48. Téte pleaded and relied solely upon his discharge in bankruptcy. The District Judge, on the authority of the decision in Banning vs. Blakely, 27 A. 257, that commission merchants when exercising their functions as such are acting in a fiduciary capacity, and are not relieved from their obligations, contracted in that capacity, by a discharge in bankruptcy, rendered judgment in favor of plaintiff for the full amount demanded. The question is was this a correct interpretation of section 33 of the Bankrupt Act, which is as follows:

“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 allegation of the petition with respect to the d.ebt represented by the note of February 10, 1872, is:. “ That said sum of $2000 remained a trust fund in the hands of Tete; and he is bound to account for the same as such.”

Tete says, after selling the crop, there remained a balance to the credit of Dardenne of something over $2000 ; that Dardenne took the excess and asked Téte to give his note for the $2000; and that he Téte, did not propose this mode of settlement.

Dardenne being asked why the note was given, why he took the note, answered: “ I stated to Mr. Téte that I did not wish any amount to show, or any balance to show upon his books to my credit: That I was afraid my creditors would garnishee it in his hands, therefore I wished-to protect myself as a precautionary measure on my part. I said the money shall remain here, and to show that the money is here I will take your note for the sum ; and he gave me his simple note without interest. I told him I did not want it to show on the books ; and that still left the money in his hands.” He also states that while he held this note he drew sight drafts on Tete which were paid.

Whatever the relations between Dardenne and Téte may have been originally, their relation with respect to the $2000 after the giving of the note, February 10, 1872, was simply that of debtor and creditor; and that relation did not result from any suggestion on the part of Téte, but from Dardenne’s dishonest purpose to secure the money against the pursuit of his creditors, according to his own testimony. His statement indicates that he used part of the money, at least, for plantation purposes, by sight drafts on Téte. This part of the demand of plaintiff deserves no further notice or comment; and it may be eliminated at once.

The allegation of the petition with respect to the account transferred by Edward Desobry to Louis Desobry is that the balance shown by that account “ is a trust fund in his (Téte’s) hands.”.

This account begins January 17,1872, with a balance of $2583 60, in favor of Desobry, from the last account rendered. Desobry shipped his crops to Téte, which Tete sold for his account, and carried proceeds to his credit, the whole amounting to $8266 20. He ordered goods and supplies, which Téte bought and shipped to him, from time to time during the year; and he drew sight drafts on Téte as his convenience required, amounting to $7200 72, to his debit, leaving balance due him at the close of the account, January 24,1873, $1065 48.

In Chapman vs. Forsyth, 2 Howard 208, suit was brought in the Circuit Court of the United States, to recover the proceeds of 150 bales of cotton, shipped to and sold by Forsyth, a factor and commission merchant, for account of the owner. Forsyth pleaded his discharge under the Bankrupt Act of 1841; and plaintiff demurred. The judges were divided in opinion; and one of the questions certified to the Supreme Court of the United States was:

“Is a commission merchant and factor, who sells for others, indebted in a fiduciary capacity, within the act. provided he withholds the money received for property sold by him, and which property was sold on account of the owner, and the money received on the owner’s account ?”

The first section of the bankrupt act under which this question arose excluded from the operation of the discharge “ debts created in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity.”

The court decided, without dissent, after full argument, that the factor was not acting in a fiduciary capacity, within the meaning of the act, in the case stated.

It is obvious that the words used in section 33, of the act of 1867, “ While acting in any fiduciary character,” mean nothing more, nothing less, than the corresponding words in the first section of the act of 1841, “ while acting in any other fiduciary capacity.” The words “ character ” and capacity,” as used, are synonymous ; and the other slight difference in the phraseology is the necessary consequence of the omission, in the act of 1867, of the words, “ executor, administrator, guardian, or trustee,” used in the act of 1841. As these several fiduciaries are specially'mentioned in the act of 1841, it was necessary, in order that all fiduciaries should be included, to use the word “ other ” between the words “any” and “fiduciary;” but as the act of 1867 does not designate any fiduciaries specially, it was necessary, to suppress the word “ other” and to use only the word “any,” in order to include all fiduciaries, as the intention of both acts was.

In Owsley vs. Cobin, Nat. Bankrupt Register, 15, p. 489, the plaintiff shipped to defendants certain goods for sale on commission, which defendants sold; and they rendered account sales, showing net proceeds, which they failed to pay. The question was whether this was a debt contracted in a fiduciary capacity, within the intendment of section 33 of the act of 1867. The case was tried in the Circuit Court of the United States in South Carolina, in June, 1877, before the Circuit Judge and the District Judge. Under instructions by the court the jury found a verdict for the defendants. There was a motion for new trial, which was heard by Chief Justice Waite. His opinion was “that the debt due by the defendants in this case, as factors or commission merchants, is not such a debt, contracted in a fiduciary capacity, as is contemplated by the act of Congress to be excepted from the operation of a discharge, in bankruptcy.” And the new trial was refused. It will be observed that these two cases differ essentially from the case under consideration. It does not appear in Forsyth’s case, nor in Cobin’s case, that there was any account current between the factors and the owners of the goods; and the relation between them, on the facts stated, was apparently that of principal and agent, purely and simply.

In the present case the account sued on begins with a balance, showing previous dealing. It was an account current running through an entire year. Every one doing business with a factor and leaving balances in his hands, against which he draws at sight, at his pleasure, understands that the factor does not keep the money in his safe or about his person ; and that, in the nature of things, he could not open a separate bank account, or make special deposits, for each one of the numerous persons whose property he has received and sold on commission. By common consent, and necessarily, in all such cases, the money received by the factor is deposited in bank to the credit of-the factor; and when the owner demands his, in whole or in part, by draft or otherwise, the factor draws his own check, against his own bank account, for the amount.

In many cases the relation between the factor and those whose property he receives and sells on commission would seem to be merely that of principal and agent. But where the one is receiving and selling, from time to time, and the other draws at his convenience, and there are numerous debits and credits in account current, resulting in a balance in favor of the one or the other, the relation between them -is no longer merely that of agency. So well is this understood, that factors, in such cases, in the absence of an agreement to the contrary, usu.ally keep an interest account, which a mere agent would not think of doing. By the consent of both parties, by their course of dealing, the relation is that of debtor and creditor ; and the balance with which the account may close, against the factor, is not a debt created by him while acting in a fiduciary character, within the meaning and intendment of the bankrupt act of 1867. We accept the decision of the Supreme Court of the United States in Forsyth’s case, and that of Chief Justice Waite in Cobin’s case, as authoritative interpretations of statutes of the United States; and we can not assent to the contrary doctrine, maintained by our predecessors in Banning vs. Bleakly, 27 A.

It is not charged in the petition that any part of the demand of plaintiff is “ a debt created by the fraud or embezzlement of the bankrupt ; ” nor are the words “ fiduciary character ” or “ fiduciary capacity ” used in the petition. With respect to the balance of account sued for, as in reference to the Dardenne note, the distinct and only charge implying a fiduciary relation is that the amount is a trust fund in the hands of Tete. We do not find the words “trust fund” in section 33 of the bankrupt act; and we can not conceive of any such thing as a trust fund, in any legal acceptation of the term, except such fund as may be in the hands of some public officer, or of an executor, or an administrator, or a guardian, or a trustee, technically so called, and held for the special purposes designated by law, or resulting from the nature of the appointment. We presume that the words are used in the petition to express the idea that these two debts were created by Téte while acting in a fiduciary character. It is clear from the decisions in the cases of Forsyth and Cobin, and in Buckner’s case, 2 A. 1023, that they are not trust funds; and that they are not debts created in a fiduciary capacity.

As to the money placed by Desobry with Téte for investment, the allegations of the petition are, that Desobry instructed Téte so to invest as that the interest should be collectible every six months * * “That from time to time Téte rendered to petitioner accounts showing the collection of said interest, and petitioner believed he had said funds invested in good securities. But lately, to wit, about the eighteenth January, or shortly afterward, said Téte represented to petitioner that he had never performed the trust confided to him, but had, in violation thereof, unknown to petitioner, retained said funds in his own possession.”

The receipt given by Tete is silent as to the manner in which the money was to be invested, and as to the rate of interest. Téte was doing a very large commission business. His credit was very good, and he was reputed to be worth $200,000; and, upon the mere showing of the receipt itself, if he retained Desobry’s money, believing, as no doubt he and Desobry both believed at the time, that it was safe in his hands, his use of it in his business would not have involved either actual fraud or moral turpitude, or intentional wrong.

In Neal vs. Clark, 5 Otto, 704, on error to the Supreme Court of Appeals of Virginia, that court had decided that a bankrupt not chargeable with actual fraud, but who had committed constructive fraud under the State law, was not entitled to the benefits of his discharge in bankruptcy. The Supreme Court of the United States reversed the decision of the Virginia court; and held that the “fraud” referred to in section 33 of the act of 1867 “ means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong ; and not implied fraud, or fraud in law, which may exist without the imputation of bad faith.” The constructive fraud committed by the Bankrupt is not within the meaning of the act; and “ his discharge in bankruptcy affords him complete protection.” P. 709.

It is not charged in the petition, in distinct terms, that there was fraud or embezzlement on the part of Tete. These are grave charges. Either, if proven, would suffice to deprive the bankrupt of the benefits of his discharge; and one of them is a crime, punishable, under the State law, by imprisonment in the penitentiary. They must be set forth and charged in distinct terms before they can be the subject of judicial inquiry: and they are not to be deduced, inferentially, from statements in the pleadings which may be susceptible of a different interpretation. There is nothing in the allegations of the petition from which it can be-inferred that Téte intended, at the time he used Desobry’s money, to deprive Desobry either of the principal or the interest; or that he did not intend to account faithfully for the interest, at the end of every six months, and to return the principal whenever it should be demanded.

The proof shows that Téte rendered accounts to Desobry every six months ; and Desobry admits that they were received by him from time to time. These accounts include dealings to a large amount; and each of them closes with a balance in favor of Desobry. The form of the entry of the semi-annual interest is the same in all these accounts ; and that in the first account will serve as an example: “By six months interest on $22,000, from February 5,1870, to August 5,1870, at ten per cent, $1100. By six months interest on $3000, from February 18,1870, to August 18,1870, at ten per cent, $150.”

There was nothing in these accounts to mislead Desobry, or to indicate that the money had been invested in securities of any kind; and there was no charge, in any of them, for commissions for investing, or for collecting the interest. No one would suppose that a merchant, doing only a factorage and commission business, could afford to look around and find safe securities in which to invest so large an amount, at so high a rate of interest, payable every six months, without some pecuniary compensation; and if any conclusion, as to the manner of the investment, could be deduced from the accounts, it would be that Téte had invested the money in his own business, and charged himself with the interest; and not that he had, gratuitously, made investments on such favorable terms in good securities, and collected and accounted for the interest so promptly for nearly three years, without the loss of a day to Desobry, as a mere matter of friendly agency.

Desobry says he never authorized Tete to retain the money himself, either verbally or in writing. “ There were no directions given Mr. Téte in what he should invest my funds; but it was understood these funds would be invested in commercial and mortgage paper which should be doubly and triply secured. This was so understood in the conversation at his office, at which no one but he and myself were present.”

Mr. Desobry must have known that those who are able to furnish such securities as he describes can always obtain money, on much better terms than he required, from banks and other corporations, and individual capitalists.

Téte’s explanation of this business is: “After giving the receipt to Mr. Desobry he stated that he would rather have a fixed rate of interest for his money, of ten per cent, payable every six-months. I told him it would be a hard case if I had to invest the money outside, as frequently the money would be idle, and would have to remain in our hands for fifteen to twenty days at a time, without interest. He said he would rather have the money remain with me, at a fixed rate of interest of ten per cent per annum; and with this understanding I took the money.” To the other question : “ Did you give him credit accordingly on your books?” Tete answered: “Yes, that account was never charged with any investment made on his account.”

Again, Tete was asked whether it was true, as alleged in the petition, that it was only about the eighteenth January that he, Tete, represented to Desobry that he had never performed the trust, etc. He answered that it was not true. ■ After stating that plaintiff knew that he used the money in his business, Tete was asked how he knew that fact. He answered: “ Because, the next day after I gave him the receipt for the money to be invested, Mr. Desobry called upon me, at my office, and requested me to use the money in my business, at a fixed rate of interest, at ten per cent per annum, and payable every six months.”

This testimony was objected to, and the objection was maintained, on the ground that it tended to contradict or vary the written contract expressed in the receipt; that the receipt created a perfect contract to invest the money for account of plaintiff; and that this testimony tended to prove a second and different agreement, to make a loan and not to invest.

We think the objection was not well taken. The receipt simply shows that the money was to be invested, for account of Desobry, so as to have the interest paid every six months. The testimony did hot tend to vary or contradict the receipt in any respect. “ Invest ” does not necessarily indicate the purchase of property, or stocks, or a loan on negotiable securities. It implies the outlay of money, in some permanent form, so as to yield an income; and the use of the money by Téte, at the required rate of interest, payable every six months, was an investment, in. every sense of the term, not different from that expressed in the receipt.

Besides, plaintiff had attempted to prove, dehors, and beyond the receipt, that the understanding was that the investment was to be in good commercial and mortgage paper; and such proof was essential to his case. The testimony of Téte was clearly admissible to prove that this was not the understanding.

It was also admissible to disprove the allegation of the petition that Téte, in violation of the trust confided in him, “ unknown to petitioner,” had retained the money in his possession.

If we should balance the testimony of Desobry by that of Tete, the allegations of the petition would simply be not proven. The testimony of Desobry, as to the manner in which the investment was to be made, is not supported by any proof in the record; and his statement that it was to be doubly and triply secured, by commercial and mortgage paper, presupposes a stringency in the money market, and a superfluity of good securities, which do not usually co-exist, and which, in the nature of things, could be but temporary.

The testimony of Téte is strongly corroborated by the entire history of this business. From February, 1870, up to January, 1873, when Tete suspended, no inquiry was made by Desobry, no question asked as to how his money had been invested. He had the receipt in his possession, and knew that it contained no limitation of Téte’s discretion as to the manner of investment, except as to the payment of the interest, the rate of which it did not fix. Téte’s clerks prove the manner in which the accounts with Desobry were kept, from the beginning, and the frequent rendering of accounts to Desobry. The large dealings between Téte and Desobry, and his son, Edward Desobry, and his son-in-law, Dardenne, running through several years : the credit which Téte enjoyed, and his reputed wealth, make it more than probable that Desobry would have preferred to leave his money in the hands of Téte, at a fixed rate of interest, rather than to rely on the uncertainty of finding equally safe investments otherwise, on the required terms.

The debt to plaintiff was not created while Téte was acting in a fiduciary character, within the intendment and meaning of section 33 of the bankrupt act, as interpreted by the Supreme Court of the United States, and the Circuit Court, in the cases cited : There is no proof of actual fraud, or of intentional wrong, or of moral turpitude on the part of Tete ; and there is nothing in the record to take the debt sued for out of the operation of the discharge in bankruptcy.

The judgment appealed from is therefore annulled, avoided, and reversed ; and it is now ordered, adjudged, and decreed that the demand of the plaintiff, appellee, Louis Desobry, be rejected, and his suit and petition be dismissed; and that he pay the costs in this court and in the District Court.

Mr. Justice DeBlanc does not concur in this opinion and decree.

Mr. Justice White dissents and reserves his right to hereafter file his reasons.

On Rehearing.

Manning, C. J.

The bankrupt Act of 1841 forbade the discharge of a debtor from debts “created in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity.”

The bankrupt Act of 1867 provided that “ no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while in any fiduciary character, shall be discharged.”

The Supreme Court of the United States held that a factor was not within the exceptions of the Act of 1841, not being included in the general designation ‘other fiduciary capacity’ — ruling that those words must mean the same class of trusts as those specifically mentioned, all •of which were special and not implied trusts. Chapman v. Eorsyth, 2 How. 202. There has been no decision of that court upon this portion of the corresponding clause of the Act of 1867, the case of Neal v. Clark, 5 Otto, 704, dealing alone with that part of the clause which relates to ‘fraud,’ and settling only that constructive fraud is not within the meaning of that Act.

Meanwhile the State courts have differed as to whether the changed phraseology of the last Act imparts to it a different meaning from the first.

The Massachusetts court hold that the phrase ‘fiduciary character’ does not include the obligation of a debtor, to whom accepted bills of exchange were delivered by their owner with directions to collect them and apply so much of their proceeds as was necessary to the payment of debts owing by the owner to the estate of a deceased person, of whom the debtor was administratrix — saying that the phrase implies a fiduciary relation existing previous to or independent of the particular transaction from which the debt arises, and that in that case the debt •arose out of a single transaction and its creation involved no element other than that of contract. The'court there apply the ruling in Chapman v. Forsyth for the reason that the language of the two bankrupt Acts is “substantially the same.” Cronan v. Cotting, 104 Mass. 245.

The Missouri court say the language of the Act of 1867 seems to have been made broader intentionally, and that a factor stands in a fiduciary relation to his principal in respect to the proceeds of goods sold, and his debt thus incurred is not discharged under that Act. Lanecke v. Booth, 47 Mo. 387. Similar decisions have been made by •other courts which were elaborately set forth in Banning vs. Bleakely 27 Annual, 257, in which case the same doctrine was maintained, and was reiterated in Brown v. Garrard, 28 Annual, 870.

The U. S. Circuit Court, sitting at New York, had the-question squarely presented, and Nelson J. said the provision in the Act of 1867 was much broader than in the Act of 1841, and therefore the case of Chapman v. Forsyth did not control the construction of the later Act. In re Kimball, 6 Blatchf. 292. On the other hand, in the U. S. Circuit Court, sitting at Charleston, Waite C. J. ruled that the debt due by the defendant in that case as a factor or commission merchant is not such a debt, contracted in a fiduciary capacity, as is contemplated by the Act of Congress to be exempted from the operation of a discharge in bankruptcy. Owsley v. Cobin, 15 Nat. Bankr. Register, 489.

Whatever may be the grounds of these conflicting decisions in the State courts and the U. S.'Circuit Courts, — whether based upon the idea that the language of the Act of 1867 is more comprehensive than that of 1841, or that the relation of a factor to his principal, quoad the proceeds of goods sold, is essentially fiduciary in its character — the legislation of this State has attached the quality of a trust to that relation, has conferred upon it the responsibilities ensuing therefrom, and has affixed criminal penalties to its violation. Rev. Stats, sec. 905.

The words ‘ while acting in any fiduciary character,’ employed in the Act of 1867, will be construed in each State with reference to its own legislation, and the present contrariety of opinion will doubtless continue until a decision of the U. S. Supreme Court shall have definitively settled their interpretation. The legislation of this State has stamped the relation of the factor with his principal with the character of a fiduciary, and the consequences of that relation having been formally adjudicated in Banning v. Bleakley, we shall adhere to that ruling and apply it to the present case.

Upon the matters of fact tending to shew what relation existed between Tete and Desobry, we are satisfied that it Was fiduciary in its character as'to the sum of $22,000 for which the receipt of Feb. 3,1873 was given, and as to the sum of $1,000, balance of account on Feb. 18,1873. If the testimony, offered to shew a parol agreement, varying the written receipt, be admissible, .the most that can be said of it is that it is contradictory, and does not conclusively establish the change of the contract. If it be inadmissible, the receipt speaks for itself, and the accounts rendered Desobry by Tete from time to time are in conformity with the stipulation in the receipt that the money was “ to be invested for Desobry’s account.” In these accounts Desobry was credited with the revenues derived from the investment, as if they were collected from third parties.

But Tete did not hold the relation of fiduciary to Desobry as to the Dardenne note for $2000, nor as to the balance of account with Edward Desobry, both of which were acquired by Louis Desobry by transfer. The judgment of the lower court was error as to these two items. Therefore

It is ordered and adjudged that our former decree is set aside and annulled, and that the judgment of the lower court is reversed as to the two items of $2,000 and $1,065.48, and is affirmed for the sum of twenty-three thousand dollars with five per centum per annum interest from February 18,1873 and the costs of the lower court — the costs of this appeal to be paid by the plaintiff and appellee.

On Rehearing. Dissenting Opinion.

Marr, J.

I can not concur in the opinion and decree pronounced on the rehearing in this case; and I adhere to the views expressed in the original opinion.

If it be conceded that the pleadings are sufficient to raise that issue, the single question would be, “ was the debt created while Tete was acting in any fiduciary character, within the meaning and intendment of the bankrupt act? and I do not think that the law of Louisiana, Revised Statutes of 1870, section 905, has any bearing on this question.

This section is but the re-enáctment of section 81 of the act of 1855, p. 142, which was the re-enactment of section 1 of the act of 1845, p. 46. The single object of this statute was to punish the crime of embezzlement; and the penalty is imprisonment in the penitentiary, at hard labor, for not less than one year and not more than seven years. This penalty is imposed upon “ any servant, clerk, broker, agent, consignee, trustee, attorney, mandatary, depositary, common carrier, bailee, curator, testamentary executor, administrator, tutor, or any person holding any office or trust under the executive or judicial authority of this State, or in the service of any public or private corporation or company, who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money, bill, * * * or any other property which he shall have received for another, or for his employer, * * * or by virtue of his office, trust, or employment, or which shall have been intrusted to his care, keeping, or possession by another,” etc.

These terms are broad enough to include all persons who can commit the crime of embezzlement; but the statute"does not use the word “fiduciary;” nor does it attempt to declare what shall constitute a “fiduciary character.” The essential difference between larceny and embezzlement is, that the possession of the thing stolen was wrongful ab initio while embezzlement can only be committed by one whose possession was, originally, lawful. In neither case can the crime be committed without the intent to deprive the owner of his property.

The fact that Tete accounted to Desobry semi-annually, for the interest agreed upon, ten per cent, for nearly three years, and the additional fact that in none of the accounts rendered by Tete was there any charge by way of commission or otherwise, for investing the capital, or for collecting and accounting for the interest, prove conclusively to my mind, the absence of any such intent; and these facts would have necessitated the acquittal of Tete, if he had been prosecuted for embezzlement.

No one can be deprived of a right, in consequence of crime, without first having had an opportunity to defend himself against the charge that he committed that crime. When the creditor pretends that the discharge in bankruptcy does not apply to the debt which he demands, because it was created by the crime of embezzlement, the burden is on him to prove the commission of that crime. Even fraud, not punishable as a crime, can not be proven without being distinctly charged ; and it would be strange, indeed, if any crime could be inquired into collaterally, in a court exclusively of civil jurisdiction, where that crime is not plainly and unequivocally charged in the pleadings.- 1 incline to the opinion that, where the creditor attempts to hold.the bankrupt liable, notwithstanding his discharge, on the ground that the debt was created by embezzlement, he is bound to produce the record of conviction of that crime.

The final decree in this- case is not based upon the assumption that Tete was actually guilty of the crime of embezzlement, because, every one is presumed to be innocent of crime until his guilt has been proven : because he was not even prosecuted for, much less convicted of this crime; and because he was not charged with it in the pleadings. The opinion proceeds upon the theory that the statute referred to raises to the dignity of a “fiduciary character” each one of the persons punishable for embezzlement; and that this crime can be committed only by one who is acting in a “ fiduciary character.”

It is certainly true that embezzlement can not be committed by any other than one in whom a certain degree of confidence has been reposed; but the question still remains, “Can the crime of embezzlement be committed only by one who is acting in a fiduciary character, within the meaning and contemplation of the bankrupt act?” In the strongest view of the ease against Tete, he was merely the gratuitous agent of Desobry, to invest the money intrusted to him for that purpose. So far as the statute is concerned his liability in this relation is no greater than that of a factor, or of any other of the persons designated, all of whom are placed in the same category with respect to the crime against which it is leveled. If the “fiduciary character” is to be deduced from the fact that Téte occupied toward Desobry one of the relations mentioned in the statute, it would logically follow, as our predecessors decided in Banning vs. Bleakeley, 27 A. 257, that he was acting in a “ fiduciary character, ” with respect to Edward Desobry, whose crops he received and sold as consignee and factor.

I can not accept the decision in Banning vs. Bleakeley as an authoritative interpretation of section 33 of the bankrupt act, because, in my opinion, it is directly in conflict with the jurisprudence of the Supreme and Circuit Courts of the United States as established by the cases cited in the original opinion. There is nothing in the statute of Louisiana applicable to a factor, or other agent or attorney, which is not equally applicable to menial servants ; and the menial servant, with respect to the petty sums intrusted to him for daily domestic purposes, occupies, with respect to his employer, the same relation, differing only in degree and importance, as the clerk, or broker, or attorney, or factor, or other agent. If these persons while performing the functions of their engagements are acting in a “fiduciary character” simply because the statute makes them amenable to a criminal prosecution for embezzlement, the menial servant occupies the same relation, for the same reason, while performing the functions of his employment.

The mere reading of section 33 of the bankrupt act shows that the Congress meant and intended that the crime of embezzlement might be committed by one who was not acting in any fiduciary character, within the purview of that section: that there might be a defalcation of a public officer which would not constitute the crime of embezzlement; and that a. debt might be created by one while acting in a fiduciary character which would neither be the consequence of the crime of embezzlement nor of a defalcation by a public officer. I can not undertake to say precisely what the Congress meant by the words “ any fiduciary character,” nor how that character is to be created ; but it seems clear to me that the courts of the United .States, in the several cases cited in the original opinion, maintain the doctrine that the fiduciary character contemplated is not the relation which the law of any State may imply from the contract out of which the debt or pecuniary obligation arises. The Constitution has conferred upon Congress no power to establish any other than uniform laws on the subject of bankruptcies, throughout the United States ; and uniformity requires that the discharge shall be operative alike, to the same extent, in each and all of the States. In one State certain debts and obligations may be treated as fiduciary, which in some other State might not be so regarded ; and if reference is to be had to the local laws and jurisprudence of any State, in order to ascertain what is a fiduciary character, in the intendment of the bankrupt act, it might well happen that the discharge would be an effectual bar in one State while in another State it would not relieve the bankrupt.

In my opinion .the testimony of Tete was admissible ; and, taken in connection with all the facts and circumstances of the case, it satisfies me, as a matter of fact, that the relation between him and Desobry was, with the knowledge and by the consent of Desobry, that of debtor and creditor: that the debt was not created by fraud or embezzlement on the part of Tete, nor while he was acting in any fiduciary character, within the scope and meaning of the bankrupt act'; and that it is not excluded from the operation and effect of the discharge,

The concurrence of all the other members of the Court in the opinion and decreo pronounced on the rehearing, has made it necessary for me to state the grounds of my dissent. The questions involved are of very great importance; and they are so presented in this case that they may be reviewed and finally settled, as I trust they will be, by the arbiter in the last resort, the Supreme Court of the United States.  