Glenn's Ex'crs v. Cockey

Bartol, J., delivered the opinion of this court: ' The decree of the Circuit court, from which this appeal was taken, confirms the auditor’s “Account C.,” in charging the trustee with interest, and one of the grounds upon which a reversal is asked, is that, “because the bill contains no allegation of misconduct, negligence or breach of trust, or any claim for interest, none can-properly be allowed.” In support of this view, the appellants have referred to 1 Hill on Trustees, 524, where the author uses this language: “It may be observed that interest will not be given against a trustee, unless it be prayed by the bill,” and to sustain the text, refers to Weymouth vs. Boyer, 1 Ves., Jun., 426. Bruere vs. Pemberton, 12 Ves., Jun., 389, and Hooper vs. Goodwin, 1 Swanst., 493. An examination of those cases has not satisfied this court that the principle stated in the text of Hill, however it may in some cases be applicable, can govern the decision of this case. In 2 Daniell’s Ch.

Pr., 1507, 1508, 1509, (Ed. of 1846,) this question is considered, and several authorities cited, which establish the principle, that if the circumstances are such, at the time of filing the bill, that a claim for interest did not exist, or could not be known, then it maybe allowed, if, under the facts disclosed, it appears equitable, even although not claimed in the bill; and the learned author also refers tobases, in which bills were filed “for the express pur-:-ppse'of enforcing an account, and payment of balances, and ⁴⁵⁵ decrees for interest were made, although no interest appears to