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, Rdpert. But Pothier, Pend. vol. 22, says that fiduciarius hares properly signifies the person to whom a tes tator has sold his inheritance under the condition that he should sell it to another. Fiduciary may be defined in trust, in con fidence.
The law forbids one standing in such a position making any profit at the expense of the party whose interests he is bound to protect, without full disclosure; Bisph. Eq. § 238 ; 10 H. L. Cas. 26, 31. 45. What con stitutes 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 cor poration or society ; Carpenter v. Danforth, 52 Barb. (N. Y.) 581; 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 abil ity 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. 24 How. Pr. (N. Y.) 274; Warner v. Transp. 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 fol lowing 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 mon ey officially collected; Morse v. City of Lowell, 7 Mete. (Mass.) 152; one who re ceives a note or other security for collection; White v. Platt, 5 Denio (N. Y.) 269 ; com mission 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 Ia. 158, 2 N. W. 1039, 35 Am. Rep. 262. This excep tion from the operation of a discharge in bankruptcy relates to technical trusts, not merely such as the law implies from the contract, but those 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. Cotting, 104 Mass. 245, 6 Am. Rep. 232 ; an agent under an agreement to ac count and pay over monthly; Grover & Bak er Sewing Mach. Co. v. Clinton, 5 Biss. 324, Fed. Cas. No. 5,845; one with whom a gen eral deposit of money is made; Hervey v. Devereux, 72 N. C. 463; a debt created by a person acting as an attorney in fact ; Wood: ward 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 Wilkes County v. Staley, 82 N. C. 395 ; Green v. Chilton, 57 Miss. 598, 34 Am. Rep. 483 ; Pierce v. Ship pee, 90 Ill. 371.'