This clause of the bankrupt act does not include implied trusts, nor does it include cases involving an actual breach of trust and confidence between persons who are not in technical fiduciary relations.1 A grantee to whom property has been conveyed in fraud of the grantor's creditors is not in a fiduciary capacity within the meaning of this provision.2 Accordingly, a buyer and seller of personal property are not thereby brought into fiduciary relations.3 Hence, a judgment against the vendee for the purchase price of the goods, even though the sale was induced by fraud,4 is not a debt created while acting in a fiduciary capacity. A shipped goods to B to be resold by him under a contract, on the back of which was a memorandum to the effect that B was to hold the goods and their proceeds "in trust and separate for the settlement of our account." This was held not to be sufficient to establish a technical trust, and therefore B's debt to A was barred by B's discharge in bankruptcy.5 A debt due from an agent,6 a commission merchant,7 or an attorney at law,8 to his principal arising out of the transaction of the agency, is not within this clause. A liability caused by the default of an agent, in failing to pay over to his principal the proceeds derived from the sale of the goods of the principal,9 or the liability arising from the misappropriation by a broker of the proceeds of stocks placed in his hands, as collateral, by a customer,10, is not created by embezzlement or defalcation in a fiduciary capacity within the meaning of this section. If A transfers property to B under a contract by which B is to sell it, pay A's debts out of the proceeds, and pay the balance over to A, B's failure to make such payment to A is not an embezzlement or defalcation while acting in a fiduciary capacity.11 The liability of a creditor to return collateral pledged to secure a debt, after payment of the same,12 or to pay the surplus left out of the proceeds of such collateral after payment of the debt,13 is not created in a fiduciary capacity. Where X pledged certain securities with A to secure X's debt to A, and A pledged them to B to secure A's debt to B, A's liability to X was not as trustee or in a fiduciary capacity.14 If, however, an agent intrusted by his principal with money to be loaned on trust deed or mortgage, makes such loan, taking the title to himself as trustee, he thereby becomes a technical trustee, and his failure to pay over the proceeds arising on foreclosure of such trust deed -creates a debt while he is acting in a fiduciary capacity.15 The misappropriation of money by one partner while acting in the partnership business does not, unless it is in violation of an express trust, create a debt owing by one acting in a fiduciary capacity.16

18Field v. Howry, 132 Mich. 687, 94 N. W. 213..

19 Warren v. Robison, 21 Utah 429, 61 Pac. 28.

20 Johnson's Administrator v. Par-menter, 74 Vt. 58, 52 Atl. 73.

1 United States. Chapman v. Forsyth, 43 U. S. (2 How.) 202, 11 L. ed. 236; Hennequin v. Clews, 111 U. S. 676, 28 L. ed. 565; Palmer v. Hussey, 119 U. S. 96, 30 L. ed. 362; Crawford v. Burke, 195 U. S. 176, 49 L. ed. 147; In re Basch, 97 Fed. 761; Bracken v. Milner, 104 Fed. 522; In re Butts, 120 Fed. 966; Barrett v. Prince, 143 Fed. 302; In re Camelo, 195 Fed. 632.

Alabama. Austill v. Crawford, 7 Ala. 335; Woolsey v. Cade, 54 Ala. 378, 25 Am. Rep. 711.

Illinois. Pierce v. Shippee, 90 III

371.

Indiana. Du Pont v. Beck, 81 Ind.

271.

Kansas. Inge v. Stillwell, 88 Kan. 33, 42 L. R. A. (N.S.) 1093, 127 Pac 527.

Louisiana. Commercial Bank v. Buckner, 2 La. Ann. 1023.

Maine. American Agricultural Chemical Co. v. Berry, 110 Me. 528, 45 L. R. A. (N.S.) 1106, 87 Atl. 218; New England Milk Producers' Association v. Wing, - Me. -, 109 Atl. 375.

Massachusetts. Hayman v. Pond, 48 Mass. (7 Met.) 328; Wolcott v. Hodge, 81 Mass. (15 Gray) 547, 77 Am. Dec. 381; Cronan v. Cotting, 104 Mass. 245, 6 Am. Rep. 232; Woodward v. Towne, 127 Mass. 41, 34 Am. Rep. 337.

Minnesota. Gee ▼. Gee, 84 Minn. 384, 87 N. W. 1116.

Missouri. Goodman ▼. Herman, 172 Mo. 344, 60 L. R. A. 885, 72 S. W. 546.

New Jersey. Reeves v. McCracken, 69 N. J. Eq. 203, 60 Atl. 332.

Rhode Island. Crosby v. Miller, 25 R. I. 172, 55 Atl 328.

Tennessee. Pankey v. Nolan, 25 Tenn. (6 Humph.) 154.

2 Reeves v. McCracken, 69 N. J. Eq. 203, 60 Atl. 332.

3 Goodman v. Herman, 172 Mo. 344, 60 L. R. A. 885, 72 S. W. 546.

4 Goodman v. Herman, 172 Mo. 344, 60 L. R. A. 885, 72 S. W. 646.

5 In re Butts, 120 Fed. 966.

6 Chapman v. Forsyth, 43 U. S. (2 How.) 202, 11 L. ed. 236; Crawford v. Burke, 195 U. S. 176, 49 L. ed. 147; Bracken v. Milner, 104 Fed. 522; Bar-rett v. Prince, 143 Fed. 302; In re Camelo, 195 Fed. 632; Du Pont v. Beck, 81 Ind. 271; American Agricultural Chemical Co. v. Berry, 110 Me. 528, 45 L. R. A. (N.S.) 1106, 87 Atl. 218; Woodward v. Towne, 127 Mass. 41, 34 Am. Rep. 337.

7 Chapman v. Forsyth, 43 U. S. (2 How.) 202, 11 L. ed. 236; In re Basch, 97 Fed. 761; New England Milk Producers' Association v. Wing, - Me. -, 109 Atl. 375; Crosby v. Miller, 25 R. I. 172, 55 Atl. 328.

So under the act of 1867. Hennequin v. Clews, 111 U. S. 676, 28 L. ed 565.

So under the act of 1841. Austill v. Crawford, 7 Ala. 335; Commercial Bank v. Buckner, 2 La. Ann. 1023; Hayman v. Pond, 48 Mass. (7 Met.) 328.

See to the same effect, Woolsey v. Cade, 54 Ala. 378, 25 Am. Rep. 711; Hayman v. Pond, 48 Mass. (7 Met.) 328; Pankey v. Nolan, 25 Tenn. (6 Humph.) 154.

Contra, Mayberry v. Cook, 121 Cal 588, 54 Pac. 95; Lemcke v. Booth, 47 Mo. 385, 4 Am. Rep. 326.

8 Wolcott v. Hodge, 81 Mass. (15 Gray) 547, 77 Am. Dec. 381.

Contra, Heffren v. Jayne, 39 Ind. 463, 13 Am. Rep. 281.

9 American Agricultural Chemical Co. v. Berry, 110 Me. 528, 45 L. R. A. (N.S.) 1106, 87 Atl. 218.

10 Crawford v. Burke, 195 U. S. 176, 49 L. ed. 147.

Breach of contract is not fraud within the meaning of this section.17

A sold wood to B, the title to remain in A until the wood was paid for. B sold the wood and appropriated the proceeds. His liability was held not to be created by fraud, embezzlement, or misappropriation while acting in a fiduciary capacity.18 A borrowed money from B under a contract whereby A was to pay interest to X for life as long as A thought that X was conducting herself properly; but if not, the interest was to accumulate, to be paid over with the principal to the ultimate owner. This was held not to be a trust. Hence, A's debt was barred by his discharge in bankruptcy.19

11 Bissell v. Couchaine, 15 Ohio 68.

12 So in case of a broker. Crosby v. Miller, 25 R. I. 172, 55 Atl. 328.

13Cronan v. Cotting, 104 Mass. 245, 6 Am. Rep. 232.

14 Hennequin v. Clews, 111 U. S. 676, 28 L. ed. 565.

For similar facts, see Palmer v. Hussey, 119 U. S. 96, 30 L. ed. 362.

15 Bracken v. Milner, 104 Fed. 522.

So, Herrlich v. McDonald, 80 Cal. 472, 22 Pac. 299.

16 Pierce v. Shippee, 90 111. 371; Inge v. Stillwell, 88 Kan. 33, 42 L. R. A. (N.S.) 1093, 127 Pac. 527; Gee v. Gee,

84 Minn. 384, 87 N. W. 1116; Karger v. Orth, ll6 Minn. 124, 133 N. W. 471; Martin v. Starrett, 97 Neb. 653, 151 N. W. 154.

17 Upshur v. Briscoe, 138 U. S. 365, 34 L. ed. 931 [affirming, 37 La. Ann. 148, which revoked 37 La. Ann. 1381; Bryant v. Kinyon, 127 Mich. 152, 53 L. R. A. 801, 86 N. W. 531.

18 Bryant v. Kinyon, 127 Mich. 152, 53 L. R. A. 801, 86 N. W. 531.

19 Upshur v. Briscoe, 138 U. S. 365, 34 L. ed. 931 [affirming, 37 La. Ann. 148, 154, which revoked 37 La. Ann. 138].

Some authorities, however, have construed the word "fraud" to include more than is included by the courts in the cases already discussed, and give a broader meaning to "fiduciary capacity." Thus misappropriating the proceeds of a note received for collection,20 or money received to use in purchase of land for the party advancing the money,21 or to buy exchange,22 or money collected for laundry work by an agent working on a commission,23 has been held to create debts which are not barred by a discharge in bankruptcy,