Page:Federal Reporter, 1st Series, Volume 10.djvu/74

 62 FEDERAL REPORTES. �oa the facts as they are now disclosed, but it does show that the executer claimed that the loss incurred by Trotter's misappropria- tion should fall on the estate, and not on him. There is enough indicated to give plaintiff, and others interested, notice, so that they could have had that question passed upon by the court, if she had not chosen to resort to some other court for that purpose. The loss by Trotter's misappropriation -would probably not have been charged to the executor, as he was a merchant of good standing, if the executer had acted promptly in selling the cotton. The master proceeds upon the theory that there was ample time to have sold and realized before Trotter's failure, and it is because of this delay, and not because of any negligence in selecting Trotter as the factor, that the executor is charged. And it is to this delay that the cause of the loss must be attributed in determining the liability of the executor for interest ; for, while on the facts he may be chargeable with the principal sum, it does not follow that he should also be charged with interest. �The balance of said principal sum, amountingto $562.08, did come into the executor's hands as a matter of fact. He used $500.69 in settlement of a debt of his own with Trotter, and colleeted the re- mainder, $62.08, in two small dividends from Trotter's bankrupt estate since the settlement in the county court. On these facts is the executor liable for any, and if any, what interest ? �The court said in Granherry v. Granberry, 1 Wash. 246, 249, that "there is no general rule which obliges an executor to pay interest. We find from the cases upon this subject that it has been determined both ways, and upon principle it will appear that no general rule can be found; each case must depend upon its own particular oircum- stances. In some cases the executor ought, and in others he ought not, to answer interest." There is the greatest difficulty in extract- ing any principle from the cases upon which the courts may uni- formly act. It seems to be very much a matter of discretion with the court in each case to be governed by the peculiar circumstances of that case. Litton v. Litton, 1 P. Wms. 543; Tew v. Winterton, 1 Ves. 452; Morris v. Dillingham, 2 Ves. Sr. 170; Jones v. Ward, 10 Yerg. 161. This is adverted to in almost all the cases, and necessarily so diversifying them that unless there be nearly an identity of facts there can scarcely be said to be a precedent for any case. Much de- pends upon the temperament of the judge, and his estimate of the merit or demerit of the special circumstances relied on to excuse the executor, and the particular conduct complained of by the parties. It ��� �