Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 5

1875.] FLANAGAN v. PEARSON. 5
Opinion of the court.
rupt act; for whether the breach of duty amounted to such
fraud or embezzlement or not, we think that a debt growing
out of the conversion by an attorney of his client's
money or property, in his hands as such, both on principle
and authority, is a debt created whilst acting in a fiduciary
character. The case of Heffran v. Joyne, 39 Ind., 464, is
in point, as to money collected by an attorney. The court
decides that a discharge in bankruptcy is no bar to the collection
of such a debt, and place it on the ground that an
attorney acts in a fiduciary capacity. In White v. Plott, 5
Denio, 274, the same proposition is laid down as conceded.
Thle relation of attorney and client is one of trust and confidence;
and breaches of duty, such as the appropriation of
money collected, or of papers intrusted to the attorney in'
the way of business, have always been punishable by the
courts. (Bac. Abr., title, Attorney.) Such embezzlement
by an attorney was excepted out of the English insolvent
laws. (id.)
Courts have differed as to whether the construction given
to the words "fiduciary character," under the bankrupt
law of 1841, is to be regarded as intended to be adopted
by the use of the same words in the present law, as ably
argued in Crown v. Costin, 104 Mass., 247, or, on the
other hand, whether a change of meaning is not fairly inferable
from the omission to specify " as executor, administrator,
guardian, or trustee," as was done in the former
law. (See Simiken v. Booth, 4 Am. Rep., (47 Mo., 385,)
326; Int re Seymour, 6 Int. Rev. Rec.; Treadwell v. Holloway,
46 Cal., 547.) As held in Chapman i. Forsyth, 2 How.,
208, the words, other fiduciary capacity," mean the same
class of trusts as executors, administrators, guardians, and
trustees, and we think the relation of attorney and client is
nearly enough of that class to be within the spirit of that
decision. For some purposes the relation of attorney and
client is classed by courts of equity with those of trustee
and cestuique trust, and guardian and ward. (Ad. Eq., 184.)