8. Where articles are delivered, or services performed, and charged on book, and no time of payment agreed on; yet if it appear from the nature of the transaction, that they were to be paid for in a reasonable time, and not to rest on book as a mutual account; then if payment be unreasonably delayed, interest will be recoverable as damages, though partial payments have been made, and the account has not been liquidated. If one should make advances for the benefit and at the request of another, or a mechanic should perform some considerable piece of work, as building a house, or a farmer should sell the produce of his farm, as his wheat, beef, &c. it could not be presumed that they were to rest on the footing of a mutual account on book, but that payment was to be made when the advancements were closed, the work completed, and the produce deliv ered; of course, interest would be chargeable on such accounts if unreasonably delayed, though partial payments have been made, and the accounts were unsettled; for here has been a breach of contract. 9. But where there are current accounts, founded on mutual dealings, unless there be some promise or usage to pay interest, it will not be allowed; for in such cases no time of payment is stipulated, each party is making payment, the balance is constantly varying, it is understood that the demands are to remain on book, and the presumption is, that interest is not to be allowed. Such is the case of farmers and mechanics, in their mutual intercourse. Such are the principles which have been long established in this state. In England there have been contradictory decisions; but it has been lately decided, that interest ought to be allowed only, where there is a written contract for the payment of money on a day certain, as on bills of exchange, and promissory notes; or where there has been an express contract; or where a con can be presumed from the usage of trade, or course of dealings between the parties; or where it can be proved that the money has been used and interest actually made; De Haviland v. Bowerbank, 1 Camp. 50; De Bernales v. Fuller, et al. 2 Camp. 426. Interest has been refused in actions for money obtained by fraud; Crockford v. Winter, 1 Camp. 129. For money received to the plaintiff's use; De Bernales v. Fuller, et. al. 2 Camp. 426. For goods sold and delivered payable at a certain time; Gordon v. Swan, 2 Camp. 429, n. On liquidated accounts and on policies of insurance; Kingston v. M'Intosh, 1 Camp. 518. But where goods have been sold, to be paid for on a certain day, in a bill of exchange, if the bill is not delivered, inVOL. VI. 28 、 Other cases in which it is allowa ble. terest is allowed, because the bill would have drawn interest; Becher v. Jones, 2 Camp. 428, n; Porter, et al. v. Palgrave, 2 Camp. 472; Boyce, et al. v. Warburton, 2 Camp. 480. . These rules do not appear to be either foun led in justice, or consistent with each other. There is the same reason to allow interest for not paying money by the time it is due, in the case of policies of insurance, as of notes and bills of exchange; in the case of parol as of written contracts. Why should a man be liable to pay interest on a contract to deliver a bill of exchange in payment for goods on a certain day, and not be liable on a contract to pay the money for goods on a certain day? It is as valuable to receive money in hand, as a bill drawing interest. Why should the defendant be liable to pay interest, if it can be proved hat he has made interest by the use of it, and not liable, if he has made none? It is immaterial to the plaintiff, what use the defendant has made of the money; the injury to him is the being kept out of the use of it himself. 2. REID V. RENSSELAER GLASS FACTORY, Oct. T. 1824, 3 Cow. Savage C. J. The learned judge, after a very extensive review of the cases, says: "From an examination of these cases, it seems that interest is allowed, 1. Upon a special agrement; 2. Upon an implied pomise to pay it; and this may arise from usage between the parties, or usage of a particular trade; 3. Where money is withheld against the will of the owner; 4. By way of punishment for any illegal conversion or use of another's property; 5. Upon advances of cash, on the authority of Liotard v. Graves, 3 Caines's Rep. 234." II. WHO ARE LIABLE TO PAY. 1. GREENLY V. HOPKINS, Jan. T. 1833, 10 Wend. N. Y. Rep. 97. A party re ceiving mon Per Cur. Savage, C. J. In the case of The People v. Gashey belong ing to anoth erie, 9 Johns. Rep. 71, which was an action against the execu e and relus trix of a loan officer, who had retained monies received by him ing to pay it in his official character, the question was raised, whether the defeudant should be charged with interest. The court, after referring to several cases, say: "It is agreeable to the principle of these decisions, and it is just and reasonable in itslef, that the over, is with inter est. defendant who retains and converts the money of another to his own use, should pay interest for that use." This decision was approved in Reid v. The Rensselaer Glass Factory, 3 Cowen, 393, where, after an examination of the cases on the question of interest we came to the conclusion, that in general, interest is recoverable where money is withheld against the will of the owner. In the case now under consideration, money belonging to the plaintiff was received by the defendant, who claimed it, and illegally withheld it from the plaintiff, and he ought, therefore, to pay interest. 2. owable where the law by im plication And is al makes it the duty of DODGE V. PERKINS, March T: 1830, 9 Pick. Mass. Rep. 388. Per Cur. Putnam, J. Upon the principles of common law, we think it clear, that interest is to be allowed, where the law, by implication, makes it the duty of th party to pay over the money to the owner, without any previous demand on his part. Thus, where it was obtained and held by fraud, interest should the pariy to be calculated from the time when it was received. So where pay over the money there his been a default of payment a coring to agreement, to the own er, without express or implied. to pay on a day certain, or af er the demand, any previ or after a reasonable time. The nature and extent of the under- cus demand on his part. taking must depend upon the facts proved in each particular But when it is ascertained at what time the money should have been paid, the law raises a promise to pay damages for the detention after the breach of the contract. For it is the essence of every assumpsit, or undertaking, that it is to be performed specifically, or that damages shall be paid for the non-performance. case. 3. THOMPSON V. STEWART, Oct. T. 1819, 3 Conn. Rep. 172, 184. Scire facias in a process of foreign attachment against the de- And so fendant as agent. where he has receiv ed interest or has made vantage to ey; but Per Cur. Hosmer, C. J. Had it become the duty of the defendant to pay the money to his principal; if through wrong or a private ad neglect, he had detained it; it would be reasonable, that for the himself out detention, interest should be allowed; Mitchell v. Reynolds, 1 of the mon P. Wms. 196; Tew v. The Earl of Winterton, 1 Ves. jr. 452; where he is Newton v. Bennett, 1 Bro. Ch. Ca. 359; Codd v. Woden, 3 Bro. neglect or guilty of no Ch. Ca. 73. This principle was recognized in Selleck v. French; 1 Conn. Rep. 32. "Where one has received money for the use of another, and it was his duty to pay it over, interest is recov“ erable for the time of the delay; but, if the holder of money delay he is not chargea ble with in terest. Generally, an exexutor est; unless he has re est, or is for another, is guilty of no neglect or delay, he will not be chargeable with interest." It would be equally just, that the defendant should pay interest, if he had received interest, or had made a private advantage to himself, out of the property; Radcliffe v. Graves, 1 Vern. Ch. Rep. 197; Lee v. Lee, 2 Vern. Ch. Rep. 548; Piety v. Stace, 4 Ves. 620; Fox v. Wilcocks, 1 Binn. 199. But where an agent, with the consent of his principal,retains money for his indemnity, no interest is payable; Com. Dig. tit. Chancery, 3 S. 4 Ch. Rep. 264. 4. LAMB V. LAMB, Sept. T. 1831, 11 Pick. Mass. Rep. 374, 375. Per Cur. Shaw, C. J. She general rule is, that an executor or adminis or administrator, (except when he is charged with a special trator is not trust, to invest money on interest,) is not chargeable with interchargeable with inter est, unless he has actually received interest, or else where from culpable delay in settling his accounts, it may be fairly inferred, ceived inter that he has made profit of the funds in his hands. Here, alguilty of un though there was considerable delay in settling the estate, yet necessary it is conceded, that this was occasioned by the pendency of suits, delay, or and was not imputable to the negligence of the executor. In funds in his order, then, to sustain this charge, it must be proved, either by direct or by circumstantial evidence, that the executor has received more for interest, than he has credited. This might be done, either by general proof, or by examining the executor on oath, upon interrogatories. has made profit of the hands. A due bill payable on demand bears inter est only from de mand made and not from the III. FROM WHAT TIME COMPUTED. 1. SCHMIDT V. LIMEHOUSE, April T. 1831, 2 Bailey's S. Ca. Rep. Assumpsit on the following due-bill: "Due Dr. Schmidt, the sum of two hundred and sixty-seven dollars, payable on demand, being for money lent me this day, by his check on the Planter's and Mechanic's Bank; 20th May, 1823." The only question was, whether this due-bill bore interest from the date, date, unless ed, altho specified to be for a loan so express the day of of money on or from demand: And his honor charged, that interest could only be calculated from demand, and the jury found accordingly. The plaintiff moved for a new trial. Per Cur. O'Neale, J. In this case we concur with the presiding judge, that interest was not recoverable, until after a de- the date. mand. I admit, that for money had and received, money lent, or paid, interest is generally recoverable from the day on which it is received, lent or paid; for it is at that moment that the law imposes the duty to pay it, and it is then due and payable. But if the parties choose to fix a future day of payment, and make no stipulations for the accruing of interest in the mean time, interest cannot accrue before the principle sum is due and payable. In general, the rule is, that when a sum is liquidated and ascertained, and to be paid on a day certain, without any reference to the subject matter of the contract, interest is allowable from the day fixed for payment. It is a compensation by way of damages for the detention of another's money after the time, at which by law, or contract, it should have been paid. In some cases, interest is allowed, because the party in possession of money is presumed to have made interest on it. But I have yet to learn, that the law gives interest on a contract to pay money at some future period, where the parties have not agreed, that it should bear interest in the mean time. There is no difference in this respect, between a note for money lent, and a note for value received. Both are alike the undertaking of the party in law, to pay according to the tenor and effect of it. If it is to pay on demand, no interest can be recovered, before one is made actually or in contemplation of law, as by the commencement of a suit. In the case of Cannon v. Beggs, 1 M'Cord's Rep. 370, it was held, that on a note in the following words: "Due T. N. on demand, three hundred dollars," interest could only commence from the time of the demand. That case, and the one before us, appear to us to be in every respect the same, and the decision here must be as it was there, against the allowance of interest until a demand made. New trial denied. 2 balance of a counts on KANE V. SMITH, Jan. T. 1815, 12 Johns. N. Y. Rep. 156, 158. One of the objections made by the defendant to the report of And on a the referees in this case, was, that they had allowed interest previous to a settlement of accounts, and a balance struck between the parties. ly from the time that the party |