Page:Federal Reporter, 1st Series, Volume 10.djvu/76

 64 FEDERAL REPORTER. �But see Re Pilling, L. E. 8 Ch. 711, where a trustee was chargee! with loss and interest on wine left with the debtor. And — �" If an executor, acting bona flde, pays money to the wrong person by mis- take, the court, although requiring him to make it good, will not, it seems, make him restore it with interest. Saltmarsh v. Barrett, 29 Beav. 474; Bruere v. Pemberton, 12 Ves. 386." 11 Cent. Law J. 287. �And — �" It requires clear and distinct evidence that there was a balance in their hands before the courts will charge an executor with interest on balances. It will not act upon a rnere probability in reference to it. Davenport v. Stafford, 14 Beav. 319, 333. Moreover, it appears that, in order to give a claim for interest against executors, there must be a clear case of improper retention of balances to a considerable or substantial amount. Jones v. Morrall, 2 Sim. (N. S.) 252; Davenport v. Stafford, supra; Longmore v. Broon, 1 Ves. 124; Melland v. Gray, 2 Coll. 295." 11 Cent. Law J. 306. �Other authorities support these positions. Eam, Assets, 512, (6 Law Library, 338;) Fonb. Eq. Book, 2, c. 7, § 6, note p; 2 Will- iams, Ex'rs. (4th Am. Ed.) 1567, and notes; Toll. Ex'rs, 480; 2 Daniell, Ch, Pr. (5th Am. Ed.) 1370, and notes; Bisph. Eq. § 142; 2 Lomax, Ex'rs, 556; Tew v. Winterton, 1 Ves. 451, Sum- ner's notes; Newton v. Bennet, 1 Bro. C. C. 359, (Perkins' Ed. and notes;) 2 Story, Eq. Pr. § 1277; 1 Perry, Trusts, §§ 468, 472; Atty. Gen. v. Solly, 2 Sim. 518, (2 Eng Ch. Eep. Am. Ed. and notes;) and they find abundant support in the general current of American cases cited in Turney v. Williams, 7 Yerg. 171, in that case itself, and many others ; Hook v. Payne, 14 Wall. 252 ; Taylor v. Bentram, 5 How. 233, 275: Dexter v. Arnold, 3 Mason, 284, 290; S. C, 5 Mason, 303, 316; Union Bank v. Smith, 4 Cranch, 509; Qratton v. Appleton, 3 Story, 755; Norman v. Storer, 1 Blatchf. 693; McKenzie v. Ander- sen, 2 Woods, 357. �The Tennessee cases show that here, as elsewhere, while the gen- erai rule is well understood to be that of the leading case of Turney V. Williams, 7 Yerg. 171, where it is said that interest is not charged against executors as a inatter of course, but only where they make interest or profits as a fact, or are presumed to have done so, — as where the executor uses the money for himself, or keeps it idle dur- ing an unnecessary delayin settling his accounts, — there bas not been^ by any means, a uniform application of it; and this want of uniform- ity bas so involved the rule that it is quite impossible to reconcile the cases. Perhaps, in the nature of the case, uniformity of applica- tion is itself impossible. In that case the executor enjoyed the ��� �