of real and personal property, and was successfully engaged in various business enterprises from which he made large profits and others in which he made large losses; and that he used in his business and kept but one bank account in which all moneys, including the fund in which Steen was interested, were deposited. Also that: "It is impossible in any manner or way to ascertain the actual profits realized by the said Joshua Hendy and the defendant corporation since the second day of June, 1875, from the use of his own money individually, or from the moneys received by him, the said Joshua Hendy, from the sales of property in which the said Steen and the said Hendy were jointly interested, as aforesaid, or from the use by the said Hendy and the said corporation of the moneys received by said Hendy of the moneys belonging to said Steen." That June 23, 1891, Hendy paid plaintiff ten thousand three hundred and eight dollars and fifty-three cents, which was the full sum of money received by Hendy for the use of plaintiff.

The corporation defendant was organized by Hendy, and he practically owned all the stock and had entire control and management of it. No notice need, therefore, be taken of it as an entity distinct from Hendy, further than to say that there is no foundation for appellant's charge that it was organized to confuse the accounts and prevent plaintiff from following his property, or that it did have any such effect. On the contrary, it was found, and must be taken as true, that Hendy did not suppose that the moneys were received or held by him as the trustee of Steen. The court having found that the actual profits cannot be ascertained, gave the plaintiff interest in lieu of profits, calculated as directed by this court on the first appeal, but allowed only simple interest from the date of the first judgment.

Appellant is not satisfied with this decree. He says the former judgment of this court gave him the option to accept a judgment for interest, or to claim actual profits; that he exercised this privilege by electing

to take the actual profits, and, therefore, the decree entered is a denial of the relief which it was expressly decided on the former appeal that he was entitled to; that the difficulty in determining actual profits arises from the fault of defendant, who wrongfully mingled the funds; that under such circumstances the burden of separation should be placed on defendant. He says: "The plaintiff claims that he is entitled to take so much, or all, or any one or more pieces or parcels of property now held by the defendant, or either of them, purchased with the common fund, or any part thereof, as the defendants cannot show to be theirs."

It is true plaintiff was given an option, either to accept a modification of the judgment, or to have a new trial; and he elected to have a new trial; and his rights must now be determined from the facts as shown upon the new trial. Upon the last trial an important fact was established which was not found upon the first trial, to wit: that it is impossible to ascertain the actual profits, either upon the money held in trust, or upon the fund with which such money was mingled. So far as this new fact can effect the determination of the case, the former decision is not controlling.

Appellant gives certain figures showing an increase in the value of Hendy's assets, which he claims should be taken as profits. But no such figures appear in the findings, nor can we say in the absence of a statement that there was any evidence from which any such conclusion could be reached. On the contrary, the finding is that such profits cannot be ascertained. All presumptions are in favor of the correctness of these findings, in the absence of the statement. We may suppose, as the respondent contends the facts were shown to be, that the defendant had for years been conducting a large business, in which he had invested a capital in comparison to which the trust fund was insignificant; that in this business he was making large profits in the manufacture and sale of machinery, invented and patented by himself; that it was shown that the profits

came mostly from the sale of patented articles; that Hendy had good credit, and could have procured all the money he needed at current rates, and that the comparatively small sum of trust money used was not essential to the business and did not add materially to the profits.

Now, if these facts were shown, admitting, as it does not appear from the findings was the case, that such profits can be determined, is it a profit which in any sense was earned by the use of the trust fund? Lord Brougham, in Docker v. Somes, 2 Mylne & K. 655, answers this question. He says such gains are not profits, but the earnings "of skillful labor very highly paid, and Lo reasonable person would ever dream of charging a trustee, whose skill, thus bestowed, nad so enormously augmented the value of capital, as if he had only obtained from it a profit."

The English cases hold that profits earned because of the goodwill of a business cannot be shared by a beneficiary under such circumstances, and that allowances should also be made for the amount earned by the busiLess management of the members of a firm in whose business trust money has been wrongfully used-not as compensation for managing the fund, but because the profits are taken, not as a right in the beneficiary, but pursuant to a principle of public policy, which is to take from the trustee all advantage which he has gained through the misappropriation of the trust money. (See Brown v. De Tastat, 1 Jacob, 284; Crawshay v. Collins, 2 Russ, 325; Featherstonhaugh v. Turner, 25 Beav. 382; (Willett v. Blanford, 1 Hare, 253.)

Trusts are as various as human affairs, and these rules might not hold in all cases, as, for instance, where the trustee is required to invest the fund for his beneficiary, or where the money was invested in a single venture or constituted the trading capital. Often, as here, the trustee is under no obligation to earn a profit for the beneficiary, and the wrong done to him consists in not paying the money and in risking it in his busi

ness. Here the position of a trustee is very similar to a debtor who neglects paying his debt. Yet, although the beneficiary is not injured by such use of the money, and there has not even been a wrongful delay in payment, the law intercepts the profits and gives them to the beneficiary in obedience to the policy which, that trustees may not be tempted to use trust money for their own advantage, provides that, though he may lose, he shall never gain by such misuse of the funds. In this case it is to me quite obvious that the profits, conceding that they have been thus made, were not earned by the use of the trust fund, and that Hendy did not reap any greater advantage from the use of the money than has been allowed to plaintiff. I think no case can be found where the circumstances are at all similar, in which a more favorable judgment has been given. Nor do I think it was through Hendy's fault that the profits cannot be ascertained in any other sense than that it was through his fault that the money was used by him at all. The amount of the trust fund was agreed upon since this suit was brought, and has been paid over. It cannot be claimed that Hendy has taken any pains to confuse the accounts so as to prevent inquiry or obstruct investigation. The money was originally blended with. his by the very nature of the original contract. Hendy could not separate the funds from his, or even determine the amount of it. This could only be done by settlement, through agreement or litigation. Much the larger portion of the proceeds of the property in which Steen was interested confessedly belonged to Hendy. The articles were sold one by one, and to determine Steen's portion of the proceeds of each article, as respondents justly observe, requires the determination of a quantum meruit, a determination which could not be made by Hendy. Now, Steen was only interested in the net profit, one-half of which also belonged to Hendy. It is not reasonable to require Hendy to keep all this capital idle because Steen had a small interest in it which Hendy could not ascertain until their relative

rights should be agreed upon or determined by litigation. Because the parties, after several years of litigation, agreed upon Steen's share, appellant now seeks to have the court regard it as though it had once been a distinct trust fund in Hendy's hands. The money never had any earmarks, and therefore none has been lost through Hendy's fault.

Nor is this going against the conclusion reached on the former appeal. It was there simply held that Hendy held the money in a fiduciary capacity, and must account for all profit made from it or pay compound interest. It now appears that though the money has been used by Hendy, no profits have been made which can justly be said to be profits made by the use of the trust fund. I think it also appears pretty conclusively that the judgment takes from Hendy all possible advantage he could have gained through the use of the trust money. Steen gets all that justly belongs to him, and the rule of public policy applicable to the matter is fully vindicated.

I think, however, the court erred in providing that compound interest should be allowed only until the entry of the first judgment. The rule for casting interest indicated in the former judgment of this court was upon the hypothesis that there would be no new trial or new judgment. It provided for a modification of the existing judgment. Of course, then, the court would not provide for compounding interest after the entry of the judgment, for the code determines the interest which judgments shall bear. Since that judgment was set aside, however, the date of its entry becomes an immaterial circumstance. Interest should have been compounded to the date of the present judgment; but a new trial will not be required.

The case being in equity, the allowance of costs was a matter within the discretion of the court. Without a statement or bill of exceptions that discretion cannot be reviewed here.

I think the case should be remanded, with directions to the trial court to modify the decree by allowing com