Page:Federal Reporter, 1st Series, Volume 10.djvu/75

 FULIJAM V. PULLIAM. 65 �is useless to undertake to reeoneile cases, and the most that can be done is to examine them for some indication of a common element of decision by which this discretion may be regulated. �An unknown but none the less aceurate writer in the Solicitor'a Journal haa recently given the English cases a critical examination in a very usef ul article on the subject ; and, so far as relates to the points involved in this case, upon an independent investigation I am satisfied with .the general correctness of his statements, 11 Cent. Law J". 285, 306, 324, 342. He says : �" The principle on which the court proeeeds in such cases has been the sub- ject of considerable controversy, although, however, it has long been settled that a trustee or executer who unnecessarily keeps in his hands moneys which it is his duty to invest or pay to the persons entitled, will be chargea with interest. Atty. &en. v. Alford, 4 De G., M. & G. 843, 851 ; Stacpoole v. Stacpoole, 4 Dow. H. L. Cas. 209, 224 ; Bloc/;/ v. Johnson, L. R. 2 Ch. 225, 228. The idea that was formerly entertained that the court, in the exercise of a qtiasi crim- inal jurisdiction, would coridemn trustees or executors to pay interest as a penalty tor a direct breach of trust, {Pearse v. &reen, IJ. & AV. 135, 140; Sait- marsh v. Barrett, e9 Beav. 474,) bas been di&avowed, and the resuit of recent decisions is to leave the practice of charging interest upoa the ground that the trustee or executor either has made or musb be taken to have made inter- est by his use of the trust moneys, constituting moneys in his hands, ' had and received to the use' of the cestui que trust. Atty. Gen. v. Al/ord, supra; Mayor o/Berwiok V. Murray, 7 De G., M. & G. 497, 519 ; Burdick v. &arriok, L. R. 5 Ch. 233 ; Vyse v. Foster, L. R. 8 Ch. 309, 333. The practical efEect of the latter view in restricting the liability of the trustee is to charge him with interest or profits only when he might have made them, as is shown in the lastly above-mentioned cases." 11 Cent. Law J. 286. �Again: �. "What is to be deemed an unneoessary retention of trust fnn'lB. sn as to subject a trustee or executor to pay ment of interest, is a q^uestioii ^ji lacc to be decided on the circumstances of each case." �And he then deduces the rule as to executors, that if, without neces- sity to meet growing claims against the estate, they keep the money uninvested merely for the purpose of using it, the court will charge them with interest. Holgate v. Hawortk, 17 Beav. 259, 260; Forbes \.Ross, 2 Cox, 115. �Again : �" Interest is only chargea on f unds which the executor or trustee has actu- ally retained. If he has lost the trust fund through neglect in calling it in, the court will not charge him with interest. Tebbs v. Carpenter, 1 Madd. 290; Lowson v. Copeland, 2 Bro. C. C. 156." ��� �