John McLean

“ But if his debt shall be found on the schedule, and he not only proves it but receives his proportionate share of the dividend, he is estopped from saying that it was not within the law. He is a privileged creditor, and is not bound by the bankrupt law; but he may waive his privilege. As a creditor, he has a right to come into the bankrupt court and claim his dividend. He does not establish his claim as a fiduciary one, but as a debt 'provable within the statute.' And having done this, he can never controvert the discharge. ”

“ The first section of the bankrupt law provides that, 'all persons whatsoever, 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 executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity,' shall, on a compliance with the requisites of the bankrupt law, be entitled to a discharge under it. ”

“ For if fiduciary debts are not within the act, a discharge can in no respect affect the interest of the fiduciary creditor. Without his consent, it is clear the bankrupt court can take no jurisdiction of his debt. And, although the bankrupt may include the debt in his schedule, and the discharge may be general, yet as the law gave the court no jurisdiction over the debt it is not discharged. ”