Fiduciary

This term Is borrowed from the civil law. The Roman laws called a fiduciary heir the person who was instituted heir, and who was charged to deliver the succession to a person designated by the testament. Merlin, Rupert. But Pothier, Pand. vol. 22, says that fidudarius hceres properly signifies the person to whom a testator has sold his Inheritance under the condition that he should sell it to another. BTduc Iary may be defined in trust, in confidence. The law forbids one standing In such a protect, without full disclosure; Bisph. Eq. f 238; 10 H. L. Gas. 26, 81.

46.

What constitutes a fiduciary relation is often a subject of controversy.

— It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, director of a corporation or society; Carpenter v. Danforth, 52 Barb. (N. Y.) 581; Appeal of Watts, 78 Pa. 392; agent; Barrow v. Rhinelander, 1 Johns. Ch. (N. Y.) 550; medical or religious adviser; In re Greenfield’s Estate, 24 Pa. 232; article in 10 Jur. N. S. 91; husband and wife; Appeal of Darlington, 86 Pa. 512, 27 Am. Rep. 726;

or a son; 13 Ch. Div. 338.

See L. R. 3 Eq. 461; Hill, Trustees 547.

Many cases have arisen in New York under the laws allowing arrest for debts incurred in a fiduciary capacity. The term seems to refer rather to the good faith than the ability of the party; Stoll v. King, 8 How. Pr. (N. Y.) 298.

See Burhans v. Casey, 4 Sandf. ( N. Y. ) 707; Holbrook v. Homer, 6 How. Pr. (N. Y.) 86; Turner v. Thompson, 2 Abb. Pr. (N. Y.) 444; Ostell v. Brough, 24 How. Pr. (N. Y.) 274; Warner v. Trausp. Co., 5 Rob. (N. Y.) 502.

Under the bankrupt laws of 1841, and March 2, 1867, § 33, providing that debts contracted in a fiduciary capacity should not be barred by a discharge, the following cases fall within the act; an agent who appropriates money put into his hands for a specific purpose of investment; 1 Edm. 206; collector of city taxes who retains money officially collected; Morse v. City of Lowell, 7 Mete. (Mass.) 1.52; one who receives a note or other security for collection; White V. Platt, 5 Uenio (N. Y.) 269; commission merchant; Meador v. Sharpe, 54 Ga. 125; and it does not alter the rule that the debt has been reduced to judgment before the discharge; Wade v. Clark, 52 la.

158, 2 N. W. 1039, 35 Am. Rep. 202.

This exception from the operation of a discharge in bankruptcy relates to technical trusts, not merely such as the law implies from the contract, but those actually, and expressly constituted; Mulock v. Byrnes, 129 N. Y. 23, 29 N. E. 244. In the following cases the debt has been held not a fiduciary one; a factor who retains the money of his principal; Chapman v. Forsyth, 2 How. (U. S.) 202, 208, 11 L. Ed. 236; Commercial Bank of Manchester v. Buckner, 2 La. Ann. 1023; Cronan v. Cottlng, 104 Mass. 245, 6 Am. Rep. 232; an agent under an agreement to account and pay over monthly; Grover & Baker Sewing Mach. Co. v. Clinton, 5 Biss. 324, Fed. Cas. No. 6,845; one with whom a general deposit of money Is made; Hervey v. Devereux, 72 N. C. 463; a debt created by a person acting as an attorney In fact; Woodward V. Towne, 127 Mass. 41, 34 Am. Rep. 337; Desobry v. Tete, 31 La. Ann. 809, 33 Am. Rep. 232; Treadwell v. Holloway, 46 Cal. 547. See, also, Com’rs of WUkes County v. Ml^s.

698, 34 Am. Rep. 483; Pierce r. Shlppee, 90 111. 371.