#### ROBERT P. WILLIAMSON & AL. vs. STEPHEN M. DICKENS.

The provision in the bankrupüaw, which prevents a debtor from being discharged under the commission of bankruptcy when the debt is of a fiduciary character, extends only to special trusts, but does not extend to implied trusts, such as those of agents, factors, &c.

When a creditor has a claim which he might enforce, either by an action of assumpsit or in tort, if he sues in tort his action shall not be barred by a discharge under the bankrupt law.

The creditor is not barred by this discharge, when, although he might have proved his claim under the commission, he was notboundio do so.

In every such case, the form of the action brought is decisive of the question, whether the discharge is a good bar or not.

Appeal from the Superior Court of Law of Person County, at the Fall Term, 1844, his Honor Judge Pearson presiding.

This was an action on the case, in which the plaintiffs declared in tort for breach of contract, and also in trover for the conversion of certain bonds, notes and attorneys’ receipts, which the plaintiffs had placed in the hands of the defendant, to be by him collected for them. The breaches assigned in the first count were, 1st, failure to use due diligence in collecting; 2dly, failure to pay over moneys collected. The defendant relied upon the pleas of the general issue, and his certificate of discharge under the bankrupt law, which he obtained in January, 1843. The facts,, as disclosed upon the trial, were as follows : In 1836, the plaintiffs placed in the hands of the defendant the bonds, notes and attorneys’ receipts referred to, which were then due to the estate of the plaintiffs’ intestate from persons living in the State of Alabama, which bonds, notes, &c., by his receipt for the same, he agreed to collect or return. The defendant proceeded to the State of Alabama in the autumn of 1836. While there, he collected a part of the said bonds, &c., and left a large residue in the hands of his brother Robert M. Dickens, who was a partner in trade in that *260country with the defendant and others. Of the notes and bonds so left in his hands, Robert M. Dickens by his deposition proves, that he collected a large amount, which in part be paid over to the plaintifFs’ agent; but leaving a balance unaccounted for by him to the plaintiffs, of about .$900, It further appeared, that this balance of $900 was used by Robert Dickens for the benefit of the firm of Dickens, Webb, &. Co., of which the defendant, as above stated, was a member. And, upon the failure of the said firm, which took place in 1839, a general assignment of the effects of the firm was made for the benefit of their creditors, and this balance of $900 was, by a schedule annexed to the said assignment, admitted to be due the plaintiffs for claims left in the hands of Dickens, Webb, & Co. for collection. It was also proved, that the assets of the said firm were not sufficient to pay the said sum of $900. The plaintiffs also proved a demand before action brought.

On behalf of the defendant, the testimony of John A. Hogan was introduced. Mr. Hogan stated, that in February or March, 1837, at the request of one of the plaintiffs, he had an interview with Mr. Robert Dickens in regard to the funds above mentioned. In that interview, Mr. Robert Dickens told him that he, Dickens, would visit North Carolina in the course of the ensuing summer, and would adjust the matters in regard to these funds with the plaintiffs and the defendant. Mr. Hogan further stated that in the course of the winter of 1838, he had another interview with Robert Dickens in Alabama, in relation to these funds, and Dickens then informed him that a portion of the funds was in the hands ofCol. Irving (an Attorney) and that he, Hogan, could call on Mr. Irving and obtain them. Mr. Hogan accordingly obtained from Mr. Irving the amount of $2175, or thereabouts. Mr. Hogan further stated that Mr. Robert Dickens, previously to his obtaining this sum from Irving, informed him (Hogan) that the funds, which were to be collected by Stephen Dickens for the plaintiffs, were collected or were considered by him (Robert Dickens) as collected ; that one of the debts was not actually collected, but *261was due to the plaintiffs from his overseer, and that he would, at the end of the year, retain this debt out of the overseer’s wages. The amount of this debt was four or five hundred dollars ; and soon after the first of January, 1839, Mr.R. Dickens sent Mr. Hogan a draft for five hundred dollars, which was duly paid on presentment. Mr. Hogan further testified, that Mr. R. Dickens said, that he ought to pay the funds he had collected to the plaintiffs, but that he had no funds at the time, which were available for that purpose; that his northern debts were pressing him, and that the payment he could make to Mr. Hogan depended upon what arrangement he could enter into as to his northern debts, and what collections he could make as to the debts due to the firm. In the first interview between Hogan and R. Dickens, the latter spoke of having made remittances to the defendant, and stated that what he owed the plaintiffs would depend upon the application the defendant had made of those remittances. Mr. Hogan further stated, that when the plaintiff, Williamson, first requested him to give his attention to these matters in Alabama, he stated, after shewing Mr. Stephen Dickens’ receipt, that Stephen Dickens had placed the debts mentioned in the receipt, in the hands of Robert Dickens for collection. In one of his interviews with Robert Dickens, Mr. Hogan told him that his brother Stephen would probably be sued by the plaintiffs for the debts he had to collect. To this suggestion R. Dickens replied, that he regretted, or that his brother ought not to be sued, for that he, Robert, had the funds in his hands. The plaintiff, Williamson, authorized Hogan to treat with Mr. Robert Dickens in regard to these debts.

On the part of the plaintiffs it was contended, that they had made out their case against the defendant, and had a right to recover, notwithstanding his discharge in bankruptcy; 1st, because the defendant, by his undertaking to collect as the agent of the plaintiffs, established between himself and the plaintiffs a fiduciary relation, which, under the bankrupt law itself, precluded him from the benefit of his discharge: 2ndly. The plaintiffs having declared in tort, as they had a right to *262do under the facts of this case, the discharge ill bankruptcy 110 kar to action- But his Honor having intimated an opinion against the right of the plaintiffs to maintain their action, the plaintiffs submitted to a non-suit and appealed to the Supreme Court.

Kerr and Venable for the plaintiffs.

E. G. Reade and Iredell for the defendant.

Nash, J.

The plaintiffs declaration contains two counts, one in trover and the other in tort, for breach of contract. The case was, the plaintiffs put into the hands of the defendant a number of notes and bonds which they held upon sundry persons in Alabama, and in his receipt, the defendant bound himself to collect or return them. The defendant being one of a firm in Alabama, engaged in merchandizing, placed the papers in the hands of Robert Dickens, another partner, who collected the money and appropriated the amount, now claimed from the defendant to the payment of the partnership debts. The firm is insolvent, and so is Robert Dickens. Mr. Hogan, as the agent of the plaintiffs, applied to Robert Dickens in Alabama for the money collected by him, and received a considerable sum. The defendant pleaded the general issue and his discharge as a bankrupt, under the bankrupt law of the United States. The right of the plaintiffs to a recovery is resisted, first, upon the ground, that they had recognized Robert Dickens as their agent in the collection of the debts, and thereby discharged the defendant. "We do not agree to this proposition ; we see nothing in the transaction, as disclosed by Mr. Hogan, showing that they had so recognized Robert Dickens. They did receive from him, by their agent, a part of what he had collected, and to that extent, have discharged the defendant, but no farther. In so doing, they did not thereby substitute Robert Dickens for the defendant as their agent. Moreover, this point was not raised on the trial, and is not open here. The second plea is, that the defendant has been regularly discharged under the bankrupt law, which is a bar to the action. The fact of his discharge is not con-*263tro verted by the plaintiffs, but its effect in protecting the fendant from this claim, is denied: First, because the defendant was acting in a fiduciary character ; secondly, because the demand of the plaintiffs is not such a debt as he was bound to prove under the defendant’s commission. The first section of the bankrupt law provides, that “ all persons, whatever, residing in any State, Territory, or District of the United States, owing debts which shall not have been created in consequence of a defalcation as a public officer, or as an executor, or administrator, or trustee, or while acting in any other fiduciary capacity,” shall on compliance with the requisites of the bankrupt law, be entitled to a discharge under it. The argument here is, that the defendant was acting in a fiduciary capacity, and is therefore expressly within the exception of the statute. We do not think so, and if that alone were in his way, we should unhesitatingly give him the benefit of his plea. What is the fiduciary character or capacity embraced by the act ? Does it extend to all cases in which money has been received to the use of another 1 If so, few debts would be left, on which the law would operate; for in all such cases, the money is received in faith or trust, to be paid over; in other words, in a fiduciary capacity. Surely,- it could not have been the intention of the National Legislature, in passing an act with a view to the relief of bankrupt debtors, so to restrict its operation. Rut the act shows us itself, what was meant in the use of the words “other fiduciary capacity.” Taken in connection with the words preceding them, it is evident that only such trusts were meant as are special, and not simply implied, as “ the defalcation of a public officer” or of an “executor,” oran “administrator.” Upon the principle then of rodendo singula in singulis, the words “ other fiduciary capacity” must refer to trusts of the same class, to wit, special, and not implied trusts. In the case of Chapman v. Forsythe and others, 2 Howard’s Rep. 206, the Supreme Court of the United States decided, that the words do not embrace a factor: And Mr. Justice McLeax, in his able opinion, repudiates the *264idea that they can apply to agencies. I repeat then, if this were the only obstacle in the defendant’s way, the judgment of the court below would very readily be affirmed. The important enquiry here is, did the defendant, at the time of his discharge, owe such a debt to the plaintiffs, as compelled them to prove it under the commission ? If so, then, very clearly, the certificate of the defendant is a clear bar to the plaintiffs action ; if it was not such a debt, but a claim, for the securing of which, the law gave them a choice of actions, and they were at liberty to sue either in tort or in debt, and their damages would not necessarily be the same in each form of action : their election of the former will deprive the defendant of the protection of his discharge, as a bankrupt. In this case, the plaintiffs have not declared on the contract, but have brought the action in tort, making the neglect of duty on the part of the defendant the gravamen of their claim. This then is not a suit to recover, strictly speaking, a debt, and is. therefore, not within the words of the bankrupt act. The case of Parker against Norton, 6 Term, 695, is in strong analogy with this. It was an action of trover. The plaintiff had placed in the hands of the defendant, a bill of exchange to be presented to the drawer at maturity, and the money to be paid over. The defendant, before the day of payment, discounted the bill with the payee, and delivered it up, taking less than the bill called for, and applying the money to his own use. The plaintiff had his election, either to sue the defendant in assumpsit, or bring trover for the bill. He chose the latter ; and on the trial, the court refused to give to the defendant the benefit of his discharge as a bankrupt, because the plaintiff had an election, and had sued in tort, and the damages would not be the same necessarily. In this case, the court recognizes the correctness of the rule laid down by Lord Mansfield, in Goodtitle against North, Doug. 583, that the form of the action in that case was decisive as to the effect of the certificate in bankruptcy. Mr. Justice Grose, in delivering his opin- ’ ion, declares the question is not, whether the plaintiff might *265have proved his debt under the defendant’s commission, but whether he was bound to do so. And all the court agree, that when a plaintiff has an election as to the form of his action, the choice of the action is decisive of the question. So in the case of Parker v. Crole, 2 M. & P. 150, and 5 Bing. 63, it was decided, that when the defendant,' a broker, sold out the stock of the plaintiff, contrary to his orders, the plaintiff had an election either to affirm the sale, and sue the defendant for the money received by him, or to bring an action of tort, and as he had brought the latter action, the defendant was not protected by his certificate of bankruptcy. These cases abundantly prove, that, when the plaintiff has an election, he is not bound to prove his claim as a debt under the defendant’s commission, though he may; and when he sues in tori, the defendant cannot avail himself of the protection Of the bankrupt law. In this case, the form of the action is not objected to, it is not controverted but that the plaintiff can sue in tort; see Govett v. Radnidge, 3d East. 62, and it was important to them to adopt this form of action, not alone as to the present question. The defendant was their agent to collect a variety of claims put into his hands — he had wrongfully transferred them to Robert Dickens — who had received the whole of the money, and applied a portion of it to the payment of the debts of the firm, of which the defendant was one. It is this misapplication of their funds, of which the plaintiffs complain, and for which they bring their action. It is by no means certain, if they had sued in debt, that they could have recovered'. There is nothing to shew that this misapplication was made by Robert Dickens, with tiie knowledge of the defendant, or that he, after it was done, assented to it or took any benefit from it, and,- if he had, he would have been liable to the claim of the plaintiff under a different contract than the one we are now considering. Be this, however, as it may, the plaintiffs have made their election to sue in tort; they claim, not the money, but damages from the defendant for a breach of duty, in the management of his agency, These damages are unli-*266quídated, and can be ascertained only by a jury. They^may §*ve amount of the sum misapplied by Robert Dickens, or they may give less, if they should be satisfied the plaintiffs are entitled to less. We are of opinion that the defendant’s discharge under the bankrupt law is no bar to the plaintiffs’ action, and that there is error in the judgment of the Superior Court.

Pm Cpiuam», Judgment reversed, and a venire de novo awarded.