Councill v. . Horton

88 N.C. 222

• Court: Supreme Court of North Carolina
• Decided: February 5, 1883
• Status: Published

Opinion

Ashe, J.

The action, in which judgment was obtained against, the defendant, as sheriff, and his sureties, was for a breach of his official bond in not paying over to the county the sum due for taxes, either not collected or collected and not paid over by him.

It is declared by section 33» of the bankrupt act, “that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in a fiduciary character, shall be discharged under this act.”

The debt upon which the judgment against the defendant and his sureties was rendered, was created by the defalcation of the defendant, as sheriff. The debt was then not discharged by the bankruptcy of the defendant. Debts created by the defalcation of a public officer, and those of a fiduciary character, are put by the act in the same class. The same principle that applies to the one will apply to the other; and it has been held by the supreme court of Kentucky that a discharge in bankruptcy does not relieve a guardian from his fiduciary obligations, as such, and if his surety discharges these and obtains a judgment therefor, he may levy upon the property of the bankrupt acquired after his discharge. Carlin v. Carlin, 8 Bush, 141; approved in Simpson v. Simpson, 80 N. C., 332, and Calvert v. Peebles, Ib., 334.

No error. Affirmed.