The  deed  was  proved  before  the  Clerk  of  the  County
Court,  November  16th,  1835,  and  registeied  the  same  day.
The  defendant  did  not  include  in  his  inventory  any  part
of  the  land  or  negroes  mentioned  in  the  deed,  and  omitted,
failed,  and  neglected  to  set  out,  or  disclose  the  same  in
any  part  of  the  proceedings  in  bankruptcy.
It  was  agreed  between  the  parties,  that  if  the  Court
sAiould,  upon  these  facts,  think  the  plaintiff  was  entitled
to  recover,  judgment  should  be  entered  for  the  principal


DECEMBBR  TERM,  1847.  HI


SwMian  «.  Smallwood.
moaey  mentioned  in  the  bond,  and  interest ;  and  if  other*
wise*  then  judgment  for  the  defendant.
The  Court  was  opinion  with  the  defendant,  and  gave
jodgment  accordingly,  and  the  plaintiff  appealed.
/.  W.  Bryan,  for  the  plaintiff.
The  plea  of  the  defendant,  of  his  discharge  in  bank-
rnptcy  simply,  is  insufficient  and  ineffectual  to  bar  the
recovery  of  the  plaintiff.
1.  There  is  no  averment  in  the  plea,  that  the  debt  due
the  plaintiff  was  proveable  under  the  bankrupt  act,  and
without  such  averment,  the  discharge  does  not  appear  to
be  a  bar  to  the  action*

2.  There  is  no  averment  that  this  debt  was  not  created,
in  consequence  of  the  defalcation  of  the  defendant  as  a
public  officer,  or  while  he  was  acting  in  a  fiduciary  ca«
pacity.
The  Federal  Courts  are  agreed,  that  fiduciary  debts
are  not  discharged  by  the  certificate,  unless  the  creditor
comes  in  and  proves  the  debt.  The  plea  should  have
shewn  that  this  was  a  debt  on  which  the  discharge  might
operate.    Sackett  v.  Andross,  5  Hill's  (N.  Y.)  Reps.  397.
