On Petition eor a Rehearing.
Ebanklin, C. —Appellant, in his petition for a rehearing, insists that this court erred in the opinion herein, in holding that the evidence did not show that the fund herein sued for was a trust fund, and exempt from the operation of the bankrupt law. The only question presented is as to the sufficiency of the evidence. The only evidence introduced was a transcript of the proceedings and judgment in Kentucky, upon whick-this suit is brought, and a transcript of the proceedings in the bankruptcy court in Indiana.
*338The judgment says nothing about the nature of the fund upon which it was rendered; and whether it was a merger of all previous contracts or not need not be decided, and we decide nothing in relation to that question.
If the appellant is permitted to go behind the judgment and inquire into the nature of the claim sued upon, there is still a failure in the evidence to show it to be a trust fund.
The complaint upon which the Kentucky judgment was rendered by default consisted of two paragraphs. The first a specific one, attempting to set out the facts; the second was a common count for money had and received. The alleged, facts in the first are set out in the original Opinion, and are therein stated as favorably, if not more favorably to appellant than the averments of the first paragraph warrant; and they still fail to show the claim to be a trust fund as is shown in the original opinion, and is sustained by the authority in the case of DuPont v. Beck, 81 Ind. 271.
The same view is taken of this question in the case of Neal v. Clark, 95 U. S. 704, and in which the court approved the same construction of the bankruptcy act of 1841 as given in the case of Chapman v. Forsyth, 2 How. 202, in which the court says: “ If the act embrace such a debt, it will be difficult to limit its application. It must include all debts arising from agencies; and indeed all cases where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left, but few debts on which the law could operate. In almost all the commercial transactions of the country, confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense; a disregard of a trust. But this is not the relation spoken of in the first section of the act.”
The foregoing language we think alike applicable to the proper construction of all the bankruptcy laws passed subsequent to that of 1841. But the complaint was composed of the common count as well as the specific paragraph; and this court can not determine whether the judgment was rendered *339upon the common count or the specific paragraph in the complaint, or both. If, upon the common count, there can bo no pretence that there was any evidence even tending to show that the claim, upon which the judgment was rendered, was for a trust fund..
Filed Jan. 23, 1885.The bankruptcy proceedings included this judgment, and the defendant was discharged from all liability therefor. We think the evidence supported the finding of the court, and the petition for a rehearing ought to be overruled.
Per Curiam. — It is therefore ordered, that the petition for a rehearing be overruled.