jury, or by those who are substituted in their place by the parties. (d)

The subject of interest is susceptible of a very clearly [374] defined division; first, where it can be claimed as a right, either because there is an express contract to pay it, (1) or because it is recoverable as damages which the party is legally bound to pay for the detention of money or property improperly withheld; (e) (2) second, where it is imposed to punish negligent, tortious, or fraudulent conduct. In the first case it is recoverable as matter of law. In the second case it rests entirely in the pleasure of the jury.

We have already had occasion to notice that interest was originally introduced into English jurisprudence by statutory provision. (f) "Before the statute of Henry VIII.," (g) says Lord Mansfield, (h) "all interest on money lent was prohibited by the common law, as it is now in Roman Catholic countries." (2) This statute provided that none should take for any loan or commodity above the rate of ten pounds for one hundred pounds for one whole year, which rate was reduced to five per cent. by a subsequent act. ()

(d) And so says Huberus, "Explicata est pars prima Rubrica de usuris, quibus admodum affine esse ID quod INTEREST ali quoties intelliximus." Huber. Præl. Jur., vol. iii,, 88, § 30.

(e) Abbott v. Wilmot, 22 Verm., 487.
(f) Ante, Chap. VIII., 249.
(g) 37 Hen. VIII., c. 9.

(h) In Lowe v. Waller, Douglass, 736 and 740.

(i) This conclusion, notwithstanding a contrary dictum of Lord Hale [Hard. Rep., 420], is arrived at by Mr. Senator Spencer, in his very able dissenting opinion in The Rens. Glass Factory v. Reid, 5 Cowen, 587 and 604, hereafter cited.

(j) 12 Anne, stat. 2, c. 16.

(1) In an action of quantum meruit upon an unliquidated contract, the jury cannot award interest, eo nomine, upon the amount of their verdict, but, if it is taken into consideration, it must only go to enhance the sum awarded as damages. Dotterer v. Bennett, 5 Rich. (S. C.) L., 295. Where interest is comprehended within the terms of a contract, it is not added by way of damages, but is a substantive part of the debt. Hummel v. Brown, 24 Penn. St., 310. Interest, in the State of Illinois, in actions purely ex contractu and where there is nothing tortious in the character of the indebtedness, can only be recovered in the cases specified by statute, or where there has been an express promise to pay interest, or where a promise can be inferred from circumstances, from the particular mode of dealing adopted by the parties, or the usage of the trade in which they dealt. Sammis v. Clark, 13 M., 544; Hitt v. Allen, Ib., 592.

(2) In New Hampshire interest is recoverable upon the amount of an insurance policy wrongfully withheld. The Swampscot Machine Co. v. Partridge, 5 Fost., 369; see also, as to the recovery of interest where money is withheld wrongfully, Whitworth v. Hart, 22 Ala., 343.

Where a principal sum is to be paid at a specific time, the English law has always since the passage of this act, implied an agreement to make good the loss arising from a default, by the payment of interest. This was expressly said, (k) by Lord Mansfield, in an early case.

"Where money is made payable by an agreement between parties, and a time given for the payment of it, this is a contract to pay the money at a given time, and to pay interest for it from the given day in case of failure of payment at that day. So that the action is, in effect, brought to obtain a specific performance of the contract. For pecuniary damages, as upon a contract for the payment of money, are from the nature of the thing, a specific performance, and the relief is defective so far as all the money is not paid."

[375] And Lord Thurlow said, (7) "All contracts to pay undoubtedly give a right to interest from the time when the principal ought to be paid." This language has been cited with approbation in this country. (m) In these cases the interest computed at the legal rate, becomes the fixed measure of damages, to which the plaintiff is entitled as of right, as on a bill (1) or note for instance, the refusal of which would be error, and no more than which can be recovered. (n) Lord Mansfield extended the principle further than it had been carried before his time, holding that in such actions interest should be computed to the time of the verdict, instead of, as had been previously practiced, to the commencement of the suit. (0)

But where money is due, without any definite time of payment, (2) and there is no contract, express or implied, that interest shall be paid, the English rule, independent of statute, is, that it

(k) Robinson v. Bland, 2 Burr., 1077 and 1086 (1760).

(1) Boddam v. Riley, 2 Bro. C. C., 3.
(m) Williams v. Sherman, 7 Wend., 109.
(n) Ante, 246; ante, of Bills and Notes,

250.

(0) Robinson v. Bland, 2 Burr., 1077, 1086. In New York, interest accruing in cases of contract, subsequent to the verdict, is taxed with the costs, but not in cases of tort. 2 R. S., 364, § 9. Henning v. Van Tyne, 19 Wendell, 101.

(1) If a bill of exchange, on the face of which no interest is reserved, is drawn in one country payable in another, the drawer is liable on its dishonor to pay as damages interest at the current rate in the country where the bill was drawn. Gibbs v. Fremont, 9 Exch. 25; S. C., 20 Eng. L. & E., 555.

(2) Upon a bond conditioned for the payment of a sum of money, where no time was mentioned for the payment, and it was not even stated to be payable on demand, and nothing was said about interest, it was held that interest was payable from the date of the bond. Purdy v. Phillips, 1 Kern. (N. Y.) 406.

cannot be claimed. In the Common Pleas, (p) it was early said, that in an action for money had and received, the plaintiff could recover nothing but the net sum, without interest. In the King's Bench, (9) Lord Ellenborough said, "Lord Mansfield sat here for upwards of thirty years, Lord Kenyon for above thirteen years, and I have now sat here for more than nine years; and during this long course of time, no case has occurred, where, upon a mere simple contract of lending, without an agreement for payment of the principal at a certain time, or for interest to run immediately, or under special circumstances from whence a contract for interest was to be inferred, interest has ever been given." The interest here claimed, was on money lent. (r) In a subsequent case, (8) Abbott, C. J., said, "It is now established as a general principle, that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay [376] interest, or where such promise is implied from the usage of trade or other circumstances." The rule here laid down has been as we shall see, a good deal modified in this country; but the English courts have adhered to the doctrine with considerable rigor. Thus they have refused interest where property has been unjustly detained, or payment improperly refused, even in cases of fraud; Lord Ellenborough (t) saying, that the fraud did not take this case out of the rule which he had previously laid down, (u) that there must be an agreement, express or implied; and the same principle was afterwards adhered to. (v)

(p) Walker v. Constable, 1 Bos. & Pul., 306, and Tappenden v. Randall, 2 B. & P., 472.

(9) Calton v. Bragg, 15 East, 223 (1812).

(r) See, also, Arnott v. Redfern, 3 Bing., 353.

(8) Higgins v. Sargent, 2 B. & Cres.,

848.

(t) Crockford v. Winter. 1 Camp., 129. (u) De Havilland v. Bowerbank, 1 Camp., 50.

(v) Bernales v. Fuller, 2 Camp., 426. The English courts do not appear to have in any way departed from the rule of Bernales v. Fuller, and De Havilland v. Bowerbank; see Fruhling v. Schroeder, 2 Bing. N. C., 77; but in a large class of cases a different rule has been introduced by statute. The 3 and 4 Will. IV., c. 42, 38, declares, "that upon all debts or sums certain, payable at a certain time, or otherwise, the jury on

the trial of any issue, or on any inquisition of damages, may if they shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest from the time when said debts or sums were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the time of payment, provided that interest shall be payable in all cases in which it is now payable in law." This statutory regulation recognizes the hardship of the old rule, but leaves the matter in great uncertainty, the whole thing being given to the discretion of a jury in the particular case. As to this statute, see Davis v. Smyth, 8 Mees. & Wel., 399, an action of debt for goods sold and de

But a surety who is indemnified against all loss by his principal, and who is compelled to pay the debt of his principal, is entitled to interest on the amount so paid, though interest was not expressly mentioned in the contract between them, and though there was not any demand of interest, and though the claim in respect thereof was not made till many years after payment. (w) (1)

It is well settled in the United States, that an agreement to pay interest may be inferred from usage. Thus, in New York, (x) interest has been allowed on the account of a forwarding mer

chant, on the ground of a universal custom to charge in[377] terest on such accounts, the custom being known to the defendant; and Savage, C. J., said, "Interest is always properly chargeable when there is either an express or an implied agreement to pay it." (y)

It is also a general rule, that interest is not recoverable on unliquidated demands. (2) In (2) an action for not delivering teas according to agreement, Judge Washington, at nisi prius, said, "It is not agreeable to legal principles to allow interest on unliquidated or contested claims in damages." "The rule is well settled," says Parker, J., in the Supreme Court of New York, "that interest is not recoverable on running or unliquidated accounts, unless there is an agreement, either express or implied, to pay interest." (a) So in Massachusetts, it is said, "that interest

livered. It was found that the defendant had agreed, at the time of the contract, to give a bill or note for the price. The jury gave interest, and it was held right. And see, also, Harper v. Williams, 4 Q. B., 219.

(w) Petre v. Duncombe, 15 Jur., 86. (x) Meech v. Smith, 7 Wend., 315.

(y) See, also, S. P. Reab v. M'Allister, 8 Wend., 109.

(z) Gilpin v. Consequa, Peters' C. C. R., 85.

(a) Esterly v. Cole, 1 Barb. S. C. Rep., 235. See also, Newell v. Griswold, 6 J. R., 45. Trotter v. Grant, 2 Wend., 413. Wood v. Hickok, 2 Wend., 501. MoKnight v. Dunlop, 4 Barb. S. C. R., 36.

(1) And see Petre v. Dunscombe, 2 Lowndes M. & P. Pr. Cas., 615. (2) Holmes v. Rankin, 17 Barb. (N. Y.), 454. But see Fitch v. Livingston, 4 Sandf. (N. Y.), 492. Where a party contracting to furnish labor and materials, has completely fulfilled the contract on his part in due time, he is entitled to recover, in a suit for the compensation stipulated by the contract, interest on the amount due him, at least from the commencement of the suit. But where, in such case, the right of the party to recover his compensation under the contract is doubtful, and contested on reasonable grounds, and the amount due him requires to be adjusted by the proceedings in the suit, interest is only recoverable after the right of the party to recover, and the amount of his recovery, have been determined. The Isaac Newton, 1 Abbott's Adm. R., 588.

cannot be recovered upon an open and running account for work and labor, goods sold, and the like, unless there is some contract to pay interest, or some usage, as in the case of the custom of merchants, from which a contract may be inferred.” (b) (1) And so also in Texas, interest is denied on an open account. (c) (2) So, in an action on a policy of insurance, if the preliminary proofs are so vague that the claim cannot be computed, interest is not allowable. (d) On the other hand, on liquidated amounts, interest is recoverable; (3) as, when accounts are stated between the parties, or rendered, and not dissented from. (e)

We have seen above, that in England, interest has been refused, even where fraud is practiced by the defendant; (f) but this is not the American rule. In an early case, the English cases were reviewed at length by the Supreme Court of the State of New York, and their principle was disapproved of. When money is received by a party who improperly de- [378] tains it, or converts it to his own use, he must with us pay interest. (g) So when money has been improperly withheld by a public officer, as where a sheriff retains money after the return day of the execution, he is liable for interest. (h) So a party

(b) Hunt v. Nevers, 15 Pick., 500. Goff v. Inhab. of Rehoboth, 2 Cush., 475. (c) Cloud v. Smith, 1 Texas, 102. (d) M'Loughlin v. Washington Ins. Co., 23 Wend., 525. But in an early case, it was held, that though interest is not strictly recoverable as of right on a partial loss under a policy of insurance, still

the jury may give it if they think proper. Anon., 1 J. R., 315.

(e) Walden v. Sherburne, 15 J. R., 405. (ƒ) Ante, 395.

(g) People v. Gasherie, 9 J. R., 71. Lynch v. De Viar, 3 J. C., 303.

(h) Slingerland v. Sweet, 13 J. R., 255. Crane v. Dygert, 4 Wend., 675.

(1) In New Hampshire, where goods are sold and delivered, and the time of payment is agreed on by the parties, interest is recoverable from the period so fixed, by way of damages, for the wrongful detention of the money after that time. And where no time of payment is fixed, but a demand of payment is made, interest is recoverable from the time of the demand. The National Lancers v. Lovering, 10 Fost. (N. H.), 511.

In Illinois, interest is not allowed upon an account, unless there is unreasonable and vexatious delay in the payment of the money. Aldrich v. Dunham, 16 Ill., 403. A delay from October to December was held not to be unreasonable, in McCormick v. Elston, 1b., 204.

(2) Gammage v. Alexander, 14 Tex., 414.

(3) Interest is recoverable upon all liquidated demands; upon bonds, notes, bills of exchange, and accounts stated. A judgment is a liquidated demand, though it be rendered in a foreign court. A sum certain, a fixed time of payment, and the parties by whom and to whom payment is to be made these are the essentials of a liquidated demand. Nelson v. Felder, 7 Rich. (S. C.), Eq., 895.