Barnard & Co. v. Sykes

72 Miss. 297

• Court: Mississippi Supreme Court
• Decided: October 15, 1894
• Status: Published

Opinion

Woods, J.,

delivered the opinion of the court.

Section 161 of the constitution is in these words, viz.: “And the chancery court shall have jurisdiction, concurrent with the circuit courts, of suits or bonds of fiduciaries and public officers for failure to account for money or property received, or wasted, or lost by failure or neglect to collect, and of suits involving inquiry into matters of mutual account, ’ ’ etc.

The word ‘ ‘ fiduciaries ’ ’ embraces those and those only who are bound for the discharge of express trusts — technical trusts, where bond is required to be given by law — and it does'not include those engaged in the execution of trusts springing from contract. It is not to be gathered from the whole section that the framers of the constitution designed to make fiduciaries, in the proper legal signification of that word, of every agent, clerk, employe, or servant who has confidence reposed in him; and surely, the mere giving of a bond for faithful performance of service under a private contract of employment, cannot make one a technical fiduciary who was not so before the constitution was adopted.

The account sued on is not a mutual account, one including mutual dealings between the parties, nor is it complicated, as we think.

Affirmed.