No. 2.- Cook v. Fowler, L. R. 7 H. L. 27, 28. [27] Cook (Appellant) v. Fowler and others (Respondents). Interest. - Money payable by Written Instrument on Day certain. Where a written security is given for the payment of money at a certain day, with interest up to that day, and the sum secured and the interest thereon are not paid at the day, the principal and interest become from that time a debt which, when recovered by legal process, may, in the discretion of a jury or of the Court, be made the subject of an additional liability, which, however, is not properly a liability to interest according to the contract, but to damages for the breach of it. Per Lord CHELMSFORD: The defeazance of a warrant of attorney is not a contract, but merely a description of the object of the security, and of the means of enforcing payment. Per Lord SELBORNE: There is no rule of law that, upon a contract for the payment of money on a day certain, with interest at a fixed rate, down to that day, a further contract for the continuance of the same rate of interest is to be implied. A warrant of attorney was given to secure payinent of a sum of money. Its date was the 2nd day of May, 1864, and the defeazance was in these terms: "The within written warrant of attorney is given for securing the payment of the sum of £1330, with interest thereon, at and after the rate of £5 per cent. per month, on the 2nd day of June next. Judginent to be entered up forthwith." &c. Held, that this was nothing more than an authority to enter up a judgment for these various sums, to be ascertained on the 2nd of June, 1864, after which time the holder would merely stand as a creditor for the sums so ascertained, and the statutable rate of interest thereon that might be allowed him by a jury or by the Court. This was an appeal against a decision of Vice-Chancellor STUART. William Bevan, late of Stapleton, in the county of Gloucester, was indebted to Cook (among other persons), and on the 2nd of May, 1864, gave him a warrant of attorney, the defeazance of which was in the following terms: "The within warrant of attorney is given to secure the payment of the sum of £1330, with interest thereon at and after the rate of £5 per cent per month, on the 2nd of June next, judgment to be entered up forthwith; and in case of default in payment of the said sum of £1330, and interest thereon, on the day afore[* 28] said,* execution or executions, and other processes may then issue for the said sum of £1330 and interest, together with costs of entering up judgment, &c., &c., and all other inci Bevan dental expenses whatever." No judgment was entered up. made his will on the 3rd of May, 1864, and made Wood and Roberts his executors and trustees; he died on the 25th of the same month, and Wood and Roberts duly proved his will. creditor's suit for the administration of the estate of Bev. (Robinson v. Wood) was afterwards instituted, and the appellau. came in as a creditor under that suit, but did not give any particulars of his demands against Bevan's estate. On the 11th of March, 1867, Wood and Roberts therefore filed their bill against Cook, praying for accounts, for liberty to redeem any premises comprised in securities given to him, appellant, by their testator, and then alleged to be held by him, and for costs. The appellant put in an answer on the 14th of May, 1867, in which he referred to mortgages made to him by Bevan, of certain lands in Ballin, in the county of Westmeath, and in Shire Newton, in the county of Monmouth. He also declared his readiness to account, stated the warrant of attorney, and claimed the principal sum due under it, with interest thereon at the rate of 5 per cent per month. Both the suits came on for hearing before Vice-Chancellor STUART, and an order was made for taking the accounts. The Chief Clerk made his certificate on the 8th of March, 1869, allowing the rate of interest claimed by the appellant. On the 12th of March, Fowler, as a creditor of Bevan, took out a summons to vary the Chief Clerk's certificate, and on the 7th of July, 1869, the VICE-CHANCELLOR made an order varying it by allowing interest at 5 per cent for the month, from the 2nd of May, 1864, to the 2nd of June, 1864, after which he fixed the rate of interest at only 4 per cent per annum. This was the order now appealed against. Mr. E. K. Karslake, Q. C. (Mr. F. H. Daly was with him), for the appellant: Whenever a security is given for the payment of money with interest at a certain time, and payment is not then [29] made, the rate of interest continues afterwards to be that which was fixed by the instrument securing it. Here is a valid instrument of security, and the particular rate of interest is settled by agreement between the parties. The appellant here had had other transactions with Bevan, and was, in fact, mortgagee of two 1 All these circumstances are so fully referred to by the LORD CHANCELLOR, one portion of his judgment being ex pressly founded on them, that it has been deemed unnecessary to set them out here at length. properties, one in Ireland and one in Monmouthshire, and he had also a charge on a house in Bristol. He entered into an arrange ment to give up his securities on having payment made to him. That payment must be calculated on the footing of those securities. The amount of interest given in ordinary cases by the Court can only apply where there has not been any stipulated amount of interest settled by agreement between the parties. Here the amount has been expressly settled between them. The defeazance of this warrant of attorney gave to the appellant in direct and express terms the interest now claimed, and there is no rule of construction applicable to such an instrument which, either at law or in equity, requires that the appellant should accept a less rate of interest than what had so been agreed upon. Here is an express contract. There is no ground on which a Court can be called on to vary it. By the law, as it now stands, any person is entitled to contract to pay any rate of interest, and such a contract is perfectly valid. If the time at which the principal of any money bearing interest ought, by the terms of a written contract, to be paid, is allowed to expire without payment, the party entitled to the payment may, in an action for the principal, recover the same interest from the date of the last payment of it: Price v. Great Western Railway Company, 16 M. & W. 244. That case shows that where nothing is said of future interest it will continue as of course; and Mr. Baron PARKE gave in that case the reason for the rule, saying: "Because the deed shows the intention of the parties that it should be a debt bearing interest." That rule had previously been adopted in Atkinson v. Jones, 2 Ad. & El. 439, which was the case of a warrant of attorney, given by a third person to secure the due payment of interest on a debenture; the Court would not interfere to enter satisfaction upon the roll, it not being sufficiently clear from the defeazance that the warrant of attorney was intended to cover only the interest [* 30] up to the day named. So that the Court must have con * sidered that the warrant of attorney would cover the same interest accruing after the day named. [The LORD CHANCELLOR. Suppose a promissory note, payable twelve months after date, but not paid at the time, what interest would be given on it by the jury? That which had been stipulated for between the parties. If they had fixed the interest at 3 per cent, of course it would not be increased; if they had fixed the interest at 6 per cent No. 2.- Cook v. Fowler, L. R. 7 H. L. 30, 31. or more, that would be given -it would not be diminished; "the intention of the parties," as Mr. Baron PARKE said, would afford the guide. Here the rate of interest had been expressly agreed upon. Mr. Dickinson, Q. C., and Mr. Hemming for the respondents: -Interest may now, of course, be stipulated for to any amount the contracting parties think fit; but if stipulated for up to a certain time, the liability to pay that interest does not go on continuously. The interest, as interest, ceases at the time mentioned. If the contract is not performed at the time, the amount recoverable, in addition to that stipulated for, is recoverable not as continuing interest, but as damages for breach of the contract to pay. Now, those damages are not necessarily to be measured by the quantum of the interest agreed upon by the parties themselves. The statute 3 & 4 Will. IV., c. 42, s. 28, which gives to a jury the power to assess damages for non-payment of money, expressly says that the jury may give such damages" if they shall think fit;" so that, so far from being obliged to give them, and to measure them by the amount of interest secured by the instrument, they may refuse the damages altogether. This case does not come within those referred to on the other side. The debenture in Price v. The Great Western Railway Company was declared to be a mortgage. A warrant of attorney is not a mortgage, it is a personal contract to secure payment of a debt, and in this instance that debt was to be paid, with stipulated interest upon it at a time certain. If not paid then, the contract was broken, and all that could afterwards be recovered would be damages for the breach of it. In a note to Mounson v. Redshaw, 1 Wm. Saund. 201 n.; see also In re Kerr's Policy, L. R. 8 Eq. 331, it is shown that interest even upon a mortgage deed, accruing after the day fixed in the deed, does not become part of the debt, but is to be treated as [* 31] damages for the detention of the debt. An excessive amount of interest submitted to for a time upon particular pressure is certainly not a thing which, contrary to all legal analogies, the Courts would continue upon mere implication. The money claimed after the day stipulated, not being interest as stipulated, must be in the discretion of the Court, and must be that which the statute, or the rules of practice, would prescribe. Mr. Karslake in reply: The warrant of attorney here, though it may not be a mortgage, is equivalent to a charge, by the debtor on his land, and may No. 2. Cook v. Fowler, L. R. 7 H. L. 31, 32. be treated as an equitable mortgage. It cannot be argued that, because the judgment was not entered up at the end of the month, the instrument ceased to be a security at all. Yet, if not so argued, it is a valid and still subsisting security for the money mentioned in it according to the mode there mentioned, both as to principal and interest. If this instrument had only given interest at 6 per cent, no Court would have reduced that amount to 5 per cent. Then, on what principle can it be reduced now? The LORD CHANCELLOR (Lord CAIRNS), after stating the facts of the case, said: So far as the literal construction of that warrant of attorney and defeazance goes, your Lordships will observe that there is no notice of any contract of debt, or of any contract for forbearance of money for any length of time beyond the time specified upon the face of the defeazance. It is an authority to enter up judgment, and a stipulation that execution is only to issue in one way and for one purpose. It is to issue on the 2nd of June following the date of the warrant of attorney, it is to issue then " in default of payment of £1330, and interest thereon," which, of course, means the interest stipulated at the rate of 60 per cent "on the day aforesaid," that is, on the 2nd of June; and then in that case execution and other process may issue for the said sum of £1330 and interest" (which, of course, must necessarily mean interest at that rate and due up to that day), " together with the costs of entering up judgment, registering the same, and writ and [* 32] writs of execution or executions, sheriffs' poundage," and Therefore, taking the literal construction and effect of this warrant of attorney and defeazance, it would appear to me to amount to an authority to issue execution on the 2nd of June for one total sum, which is to be composed of the principal sum of £1330, interest at 60 per cent up to the 2nd of June, and those expenses, unascertained in the first instance, but to be ascertained at the time described, as expenses of sheriffs' poundage, and other matters of the same kind. so on. My Lords, it appears to me that, upon the literal construction of this instrument, it is nothing more than an authority to enter up a judgment, which would be substantially a judgment for those various sums, their amount to be ascertained on the 2nd of June, 1864; and that then, if execution is not levied at that time, and payment is not at that time enforced under the execution, the |