
    Kiernan J. Guilfoyle, Respondent, against Robert J. Anderson, Appellant. Thomas Corr, Respondent, against Robert J. Anderson, Appellant.
    (Decided February 2d, 1880.)
    A discharge of a debtor, under the United States Bankruptcy Act, is a valid defense to an action for moneys of others received by the debtor and not paid over by him, where his relation to the parties was such that he might mingle such moneys with his own, without by that act alone making himself liable to an action, and where a cause of action could only arise upon his-failure to account for and pay over such moneys upon a demand duly made. Such a liability is not a debt created by the bankrupt “ while acting in any fiduciary capacity,” within the exception, contained in the Bankruptcy Act.
    Appeals from judgments of a district court in the city of New York.
    The actions were brought to recover money received by the defendant to the use of the plaintiffs. The defendant in these actions kept a boarding stable at which a large number of gentlemen boarded their horses, and it would appear. from the evidence that it is the custom in such cases for the boarding stable-keeper to have the wagons of his customers repaired and their horses shod, and for the boarding stable-keeper at the end of each month to collect the carriage-maker’s and farrier’s bills with his own, and then pay over the amount collected for each to them.
    The bills for stabling and the bills of the carriage-maker and farrier were paid in one payment to the stable-keeper, and it was not expected that the stable-keeper should keep separate from his own funds the amounts collected for the carriage-maker and farrier.
    The defendant having collected in this way certain bills of the carriage-maker and farrier, and having failed to pay over the money thus collected, these actions were brought.
    The defendant proved a discharge in bankruptcy, and the justice, notwithstanding, having rendered judgment in favor of the plaintiffs, these appeals are taken.
    
      T. V. Cator, for appellant.
    
      E. P. Wilder, for respondents.
   Van Brunt, J.

[After stating the facts as above.]—If' the understanding of the parties had been that the defendant should collect the plaintiffs’ bills separate from his own and turn over the identical money collected, it might be that the discharge in bankruptcy would be no defense. But the evidence in these cases shows that the defendant was to collect the plaintiffs’ bills with his own,—if paid in a check, by one check, if paid in money, in one amount,—no particular money being set aside for any particular bill, and was expected to mingle the money thus collected with his own, and to account and pay over the amounts which he collected every month.

There was no breach of trust in mingling the money collected with his own. Such commingling gave no cause of action against the defendant, and- a cause of action only arose upon a failure to account for and pay over the moneys collected upon a demand duly made for that purpose.

The case of Hennequin v. Clews in the court of appeals (77 N. Y. 427), and the case of Rowe v. Guilleaume (18 Hun, 556), and the cases therein cited, dispose of this question. In numerous cases cited in Hennequin v. Clews, it has been held that in a case where goods have been sent to an agent to sell and remit the proceeds, if the agent fails to remit, and an action is brought against him, a discharge in bankruptcy is a good defense, and such a case is in all respects similar to the one at bar.

The case of Rowe v. Guilleaume was just as strong as the one at bar, and upon the authorities above cited "it was held that the discharge was a bar.

The construction set upon the term “ fiduciary capacity ” in these cases expressly excludes agencies as such. If the party is in such a position that he can commingle the moneys received with his own without by that act alone making himself liable to an action, then he is entitled to the benefit of the bankrupt act.

I am of the opinion, therefore, that the discharge in bankruptcy was a good defense, and the judgment should be reversed.

Charles P. Daly, Ch. J., concurred.

Judgments reversed.  