operation of the statute of limitations, Bosanquet, J., said: "The cause of action must be the principal money due: the interest is only accessary, and accessorium sequitur suum principale." So in Clark v. Alexander, 8 Scott, N. R. 147, 165, Tindal, C. J., says: "It is scarcely necessary to say, that, if the plaintiff is barred from recovering the principal, he must be equally barred from recovering the interest, which is an accessory only, and must follow the nature of the principal." When the bill was sued on, the right to the interest existed: it was not discretionary with the jury whether they would give interest or not; they were bound to give it: Laing v. Stone, 2 M. & R. 561 (E. C. L. R. vol. 17). [COCKBURN, C. J.-There was no express agreement for interest there.] Without any agreement, the plaintiff would be entitled to interest with an agreement, he is by the rule of court(a) entitled to interest at the rate agreed upon. [WILLES, J.-It may be a question whether the 207. per month was not in the nature of a penalty.] It *is expressly reserved "as interest on the bill." [CROWDER, J. *461] -Do you find any case where the jury have given more than 5 per cent. interest?] None. [COCKBURN, C. J.—It is difficult to see how interest secured by a collateral agreement could be recovered in a count upon the bill.] If stipulated for on the face of the bill, the interest is part of the debt: if not, it is recoverable as damages for the detention of the debt, the rate agreed upon by the parties, if any, superseding the current rate of interest. This right is recognised by the 2 & 3 Vict. c. 37, s. 2, which provided that nothing in the act contained should be construed to enable any person or persons to claim in a court of law or equity more than 5 per cent. interest on any account or on any contract or engagement, notwithstanding they may be relieved from the penalties against usury, unless it should appear to the court that any different rate of interest was agreed to between the parties. The case of Seddon v. Tutop, 6 T. R. 607, at first sight, appears to be an authority against the defendant. The plaintiff had in a former action declared on a promissory note, and for goods sold, but, upon executing a writ of inquiry after judgment by default, gave no evidence on the count for goods sold, and took damages for the amount of the promissory note only and it was held that the judgment thereupon was no bar to his recovering in a subsequent action for the same goods. That case, however, is explained in Lord Bagot v. Williams, 3 B. & C. 235 (E. C. L. R. vol. 10), 5 D. & R. 87(6) (E. C. L R. vol. 16), where

(a) Rule 76 of Hilary Term, 1853,-13 C. B. 20 (E. C. L. R. vol. 76). "Every writ of execution shall be endorsed with a direction to the sheriff or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered under the judgment, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of 41. per centum per annum from the time when the judgment was entered up, or, if it was entered up before the 1st of October, 1838, then from that day; provided that, in cases where there is an agreement between the parties that more than 4 per cent. interest shall be secured by the judgment, then the endorsement may be accordingly to levy the amount of interest so agreed."

(b) And see Dunn v. Murray, 9 B. & C. 780 (E. C. L. R. vol. 17), 4 M. & R. 57.

[*462

Bayley, J., says: "The case of Seddon v. Tutop is distinguishable from the present: the ground of the decision in that case was, that no evidence had been given in the first action, on the count for goods sold and delivered, but that the plaintiff recovered a verdict merely on the count for the promissory note; and it was held, that *the judgment in that action was no bar to his recovering in a subsequent action for goods sold. In this case, Lord Bagot, at the time when the first action was commenced, had a demand on the defendant, not for one specific sum of money, but for different sums of money received by the defendant on his account from different persons and at different times. His agent knew that he had claims in respect of all the sums now claimed, except 467.; and, having that knowledge, he formed an opinion that 34001. was the whole sum which Lord Bagot ought to claim; and, if he acted upon that opinion, it is much the same thing as if a plaintiff in a cause at Nisi Prius, having a demand of 60%., consisting of three sums of 201., which became due to him at different times, consented to take a verdict for 401. If the jury in such a case, at the suggestion of the plaintiff, reduced the verdict to 401., he would be bound by it, and could not afterwards bring a second action for the other 201. It seems to me that he is equally bound by his own act in this case, as he would have been by the verdict of a jury in the other, and that, having chosen to abandon his claim once, he has done it for ever." The result of those two cases clearly supports the defendant's argument here. The plaintiff by his replication sets up the 93d section of the Common Law Procedure Act, 1852, which enacts, that, "in actions where the plaintiff seeks to recover a debt or liquidated demand in money, judgment by default shall be final," thereby meaning to suggest that he had no opportunity to obtain the interest in the shape of damages. But, having at his own election chosen to treat it as a liquidated demand, and so foregone his right to interest, he cannot now maintain a separate action for it. [CROWDER, J.-The agreement as to the 201. per month for interest could not be gone into before the master.] There might have been an inquiry in the action on the bill.

*Manisty, contrà. (a)-There were two separate and distinct

contracts between these parties, giving rise to separate and dis- [*463

(a) The points marked for argument on the part of the plaintiff, were as follows:

"1. The plaintiff by appearing resisted the plaintiff's claim endorsed on the writ, and the plaintiff by not declaring on the agreement to pay the 201. per month was precluded from recovering in the former action any part of the present claim:

"2. The contract now sued on, and the endorsement by the defendant to the plaintiff of the bill of exchange sued on in the former action, are distinct contracts, and the 201. per month now sued for was not confessed nor recoverable nor recovered in the former action, as the defendant did not by the contract then sued on agree to pay it:

"3. As the plaintiff did not in fact recover the 207. per month in the former action, he is not estopped by the former judgment:

"4. If the judgment at all applies to the present claim, it is only so much of it as was due at the time of the judgment. This objection renders the first plea bad, as too extensive, and the second bad altogether, inasmuch as the interest to which the second plea is pleaded, is the very interest to which the judgment could not apply."

tinct causes of action, the one upon the bill drawn by the defendant upon and accepted by D'Arcy,-the other upon the agreement, by which the defendant and D'Arcy, in consideration of the plaintiff's discounting the bill, jointly and severally undertook, if the same was not wholly paid at maturity, to pay, as interest thereon, 201. per month until the bill should be wholly satisfied. It was competent to the plaintiff, on default being made, to bring an action against the plaintiff and another against D'Arcy, or to bring an action against the two jointly. The plaintiff has brought an action against the defendant upon the bill, and has recovered judgment therein by default: and the question is, whether the recovery of that judgment is an answer to this action upon the collateral agreement. The principles relied on on the other side have no application here. Seddon v. Tutop is a distinct authority, and has *always been acted upon, and never overruled. Lord Kenyon's *464] judgment in that case is very much to the purpose here. He says: "It is admitted that the plaintiffs had two demands against the defendant, the one on a promissory note, the other for goods sold, and that, on executing the writ of inquiry in the former action, evidence was only given on the first demand, that the plaintiffs recovered damages adapted to that demand, and that the other demand for the goods still remains unsatisfied. By attending to the pleadings in this action, it will also be found that the plaintiffs are right in point of form. The issue was, whether the damages demanded in this action have been already satisfied by the money in the former action: and most clearly they have not. The case of Markham v. Middleton, 2 Stra. 1259, is extremely different from the present. There, the plaintiff had but one demand; and, though the jury gave inadequate damages for that demand on account of the plaintiff's not being prepared with proof of his whole bill, he would have been barred by that verdict if it had stood: but, in this case, there were two distinct demands, not in the least blended together; and, though the plaintiffs might in the first action have proved this demand, owing to inadvertence they did not, and the recovery of the note in that action is no bar to their demand in this, which is for goods sold. In truth, this is a question of great delicacy: we must take care not to tempt persons to try experiments in one action, and, when they fail, to suffer them to bring other actions for the same demand: the plaintiff who brings a second action ought not to leave it to nice investigation to see whether the two causes of action be the same; he ought to show beyond controversy that the second is a different cause of action from the first, in which he failed. In this case it is clearly shown that this demand was not inquired into in the former action." The interest sought to be recovered *in this action is *465] not, as suggested, accessory to the bill: the plaintiff's right to it arises altogether collaterally to the bill. [CROWDER, J.-Suppose the plaintiff had endorsed the bill away, what would have happened?]

The endorsement of the bill, it is submitted, could not affect the contract now declared on. It is not a cause of action that would run with the bill. The holder of the bill could recover no more than ordinary interest. [CROWDER, J.-Could two persons at the same time recover interest on the bill?] Why not? The defendant and D'Arcy, by a contract quite distinct and collateral, have agreed to pay 201. per month. [CRESSWELL, J.-As interest on the bill.] The defendant is liable upon the bill, with all its legal consequences, in whose hands soever it may be and he is also liable for the performance of the express contract he has collaterally entered into. The second plea, which is addressed to the interest accruing since the time of signing the judgment, is subject to the same observations.

Keane, in reply.-If the 201. per month is interest payable on the bill, it could only be recoverable as accessory to the principal debt. If it be a penalty, there should have been an assessment of damages upon a writ of inquiry. The plaintiff not having adopted that course, has foregone his remedy. The argument on the other side is clearly not consistent with the decision of this court in the case of Florence v. Drayson, 1 C. B. N. S. 584 (E. C. L. R. vol. 87).

Cur. adv. vult. COCKBURN, C. J., now delivered the judgment of the court:It appears to us, upon the authority of Florence v. Drayson, 1 C. B. N. S. 584, that interest could be recovered upon the contract set out in the pleadings, if at *all, only for such period as ordinary interest could be recovered upon the bill, in the absence of any express agreement.

[*466

The interest due under the contract, though constituting a distinct debt, and properly declared for in a count upon the agreement, or for interest, is only a substitute for the interest ordinarily recoverable as damages upon a bill. Therefore, when judgment was recovered, and the claim upon the bill passed into res judicata (so that any further interest payable would be upon the judgment, under the statute, not upon the bill), the right to interest under the agreement ceased. As to the interest which accrued previously to the judgment, however, the judgment is no answer. It is clear that the plaintiff has not recovered the interest now claimed in the action upon the bill. And, looking at the declaration, which determined the scope of that action, the plaintiff could not have recovered such interest in that action, for want of a count upon the agreement, or for interest.

For these reasons, we give judgment for the plaintiff upon the first plea, which is pleaded in answer to the claim for interest, both before as well as after the judgment, and for the defendant upon the second plea, which is pleaded in answer to the claim for interest after the judgment only.

Judgment for the plaintiff on the demurrer to the first plea. Judgment for the defendant on the demurrer to the second plea.

*467]

*JENINGS v. FLORENCE. June 12.

In an action for maliciously and without reasonable or probable cause causing the plaintiff to be arrested under a ca. sa. issued upon a judgment obtained by the defendant against him, and upon which the defendant maliciously and without reasonable or probable cause endorsed a direction to levy the whole amount recovered by the judgment, whereas a portion of that amount had been previously satisfied, the declaration alleged, as damage caused by the arrest for the greater amount, that the plaintiff was, after he was taken, during his detention, and before his discharge, able and willing and offered to pay, and always afterwards during his detention was willing to pay, and was finally discharged from imprisonment upon paying, the smaller sum; and that the plaintiff, by reason of the premises, was necessarily put to and incurred divers costs and expenses in and about obtaining his discharge:--Held, that the declaration sufficiently showed special damage resulting to the plaintiff from the arrest,-inasmuch as, to entitle him to a verdict, the plaintiff must show, not merely that he was arrested and kept in custody for a greater amount than was due, however improperly endorsed, but also that, by reason of the arrest and detention for the larger sum, his imprisonment was prolonged, or the expense of obtaining his discharge increased.

THIS was an action for maliciously and without reasonable or probable cause arresting the plaintiff for a larger sum than was due to the defendant.

The declaration stated that the defendant, on the 19th of November, 1855, by the judgment and consideration of the Court of Common Pleas at Westminster, in a certain action in which the now defendant was the plaintiff and the now plaintiff was the defendant, recovered against the now plaintiff the sum of 2657. 98. 6d. that afterwards the now defendant, by means of certain proceedings had under and by virtue of the Common Law Procedure Act, 1854, obtained from certain then debtors of the plaintiff, as garnishees of a certain debt then owing from the said debtors to the plaintiff, the sum of 207. 138. 11d., in payment and satisfaction of so much of the said debt of 2651. 98. 6d. : that the defendant afterwards wrongfully and maliciously sued and prosecuted out of the said court a certain writ of capias ad satisfaciendum founded on the said judgment, directed to the sheriff of Hampshire, commanding the said sheriff to take the plaintiff and keep him to satisfy the defendant the said debt of 2651. 98. 6d., and afterwards wrongfully and maliciously, and without any reasonable or probable cause, endorsed the said writ with directions to levy the whole of the said debt of 2651. 98. 6d., and afterwards wrongfully and maliciously, and without *468] any reasonable or probable cause, delivered the said writ, so endorsed, to the said sheriff, who afterwards under the same, and within his bailiwick, took the plaintiff by his body, and imprisoned him; and the plaintiff was imprisoned and detained in prison under the said writ to satisfy the defendant the whole of the said sum of 265l. 98. 6d., for a long space of time, to wit, from thence until his discharge thereinafter mentioned; whereas, at the several times of the said suing out, endorsing, delivering, taking, imprisoning, and detaining in prison, a much less sum than the said sum of 2651. 98. 6d., to wit, the sum of 2441. 158. 7d. and no more was due and owing from the plaintiff upon the said judgment, and the plaintiff, after the said taking, during the said