This suit was instituted in January, 1865. The plaintiff claimed certain slaves, and the value of their hire for a term of years.

The only question presented on the appeal for our consideration is, was a discharge in bankruptcy a good defense to the plaintiff’s demand ?

The District Court held that the liability was of such a character as a discharge in bankruptcy would not relieve against. The court was no doubt governed by the interpretation given to the 33d Section of the General Bankrupt Act of March 2d, 1867, which reads as follows : “ Eo debt contracted by the fraud “ or embezzlement of the bankrupt, or while acting in a fidu- “ ciary capacity, shall be discharged under this act.”

It is by no means clear to our minds under what particular class of liabilities the court placed that claimed in this case— whether it was regarded as a debt contracted through fraud, a liability resulting through embezzlement, or a debt growing out of some fiduciary trust; and we are sorry that we are not much enlightened by the brief of counsel who upholds the judgment of the District Court.

If the transaction out of which the liability arose is fairly stated in the record, the facts are these:—Having become security for Little and wife on a replevin bond, the appellant took the property from them as an indemnity against contingent liability. The property consisted of several slaves. Little and wife were administrators of the estate of "Richard J. Ball. There appears to have been protraetéd litigation between the heirs and administrators of Ball’s estate. Pending the litigation, the slaves remained in the custody of the appellant, who, having purchased the interest of two of the heirs of Ball in the slaves, refused to give them up when demanded, except upon the terms of his being allowed to retain a certain one of the slaves for his interest in the whole.

We see nothing in the possession of these slaves on the part of the appellant, which can be regarded as tortious or fraudulent. His possession of the slaves, after his purchase of an interest in them, was that of one tenant in common. He was liable to his *72co-tenants fortheir share of the rents, issues, and profits of these slaves, and incurred a debt to them which might have been proved under the bankrupt law.

Had the liability grown out of tort, it might nevertheless have been proved against the bankrupt, and his discharge in bankruptcy would bar its enforcement. . (See exparte Brook, 3 McLean, 371.) If, then, his discharge would relieve him against a liability growing out of the forcible possession of the slaves, it would be difficult to conceive why a liability growing out of their peaceable and legal possession should not come within the same rule. It is said in Bump’s Bankruptcy, page 392, 3d ed., that a judgment rendered in an action of trespass for an assault and battery would be released by a discharge in bankruptcy.

But the action in this case is something in the nature of the common law action of trover; and although we do not think the facts make out such a wrongful conversion as would have entitled the plaintiff to a recovery, yet, if such had been the case, and judgment rendered in the action previous to the bankrupt’s discharge, it would have been a provable debt, and, under the authorities referred to, would have been barred by a subsequent discharge. To bring a case within the rule of fraud as provided in Section 33 of the General Bankrupt Law, it is well stated in Be Whitehouse, 4 B. R., 15, that where the record of the action shows a material and traversable allegation of fraud, as its sole foundation, the demand or debt may be said to be one founded in fraud. The liability of the appellant for the hire of the slaves did not depend upon good or bad faith.

The same may be said as to the slaves themselves. He was simply liable on an implied assumpsit for the hire of the slaves. He was liable for so much of the value of the slaves as did not belong to him, provided they had remained property, but he cannot be made liable for the loss of the slaves by emancipation, and his discharge in bankruptcy was a good defense to the action.

The judgment of the District Court will therefore be reversed, and the cause dismissed.

Beversed and dismissed.