Jones v. Russell

44 Ga. 460

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

Lochrane, Chief Justice.

The legal question raised by the record in these cases, argued together, is the right of Walker to be discharged from his liability for the amount claimed to be due the plaintiff, from the fact of his having been discharged as a bankrupt. It appears from the record that during his term as auctioneer of the city of Augusta, he had disposed of the goods entrusted to him by the plaintiff, and this suit was instituted to recover the proceeds. The 33d section of the Bankrupt Act, of March 2d, 1869, provides that certain classes of claims, originating in fraud, embezzlement, defalcation, or while acting in a fiduciary character, shall not be discharged by the discharge of the bankrupt; and the first question to be determined, is whether this claim falls within this section of the Bankrupt Act. It is admitted that he was acting as an auctioneer of the city of Augusta, and I am of opinion, personally, that he came within the definition of a public officer, under the Act of 1827. But, as the discussion of this subject is not essential to the decision of the case, we need not enlarge upon it. In the opinion of the Court, this debt sued on was created while the defendant was acting in a fiduciary capacity or character, and, therefore, it was error in the Court below to have sustained the plea of his discharge in bankruptcy, as such discharge did not enure to the defendant as a protection against a debt created while he was acting in a fiduciary capacity.

It being the opinion of the Court that Walker was not discharged, it follows that his sureties was not entitled to be relieved of their liability on his official bond, and we affirm the judgment holding them liable. Judgment reversed in the case of the Mayor, etc., vs. Walker et al., and affirmed in the other case, Jones, etc., vs. Russel, Mayor, etc.