ity for interest from the time when the principal had called for payment. The grounds upon which the Court proceeded were that in equity the agent would have been charged with interest in an action of account: Pearse v. Green (1819), 1 Jac. & W. 135, 20 R. R. 258; that his liability, as regards principal moneys, would have been the same in the one form of action as in the other; and that there was a "conflict or variance between the rules of equity and the rules of the common law with reference to the same matter," and that the equitable rule giving interest must be applied by reason of section 25 (11) of the Judicature Act, 1873 (36 & 37 Vict., c. 66).

It seems to have been the practice of a Court of error to allow interest upon the affirmance of a judgment in the Court below. Becher V. Jones (Ex. Ch. 1810), 2 Camp. 228 n., 11 R. R. 756; Middleton v. Gill (1812), 4 Taunt. 298, 13 R. R. 595. A similar rule, it is conceived, still obtains by reason of the statutory provisions of the Judgments Act, (1 & 2 Vict., c. 110), s. 17, set out above, in the case of an affirming of a judgment by a Court of Appeal.

AMERICAN NOTES.

That interest was not allowed at common law is recognized in this country. Pekin v. Reynolds, 31 Illinois, 529; 83 Am. Dec. 244; Houghton v. Page, 2 New Hampshire, 42; 9 Am. Dec. 30. In the latter case the Court said: "The prejudices on this subject have doubtless been embittered by the circumstance that anciently Jews were the principal money-lenders; and such is still the extent of those prejudices as hardly to be accounted for, except on the belief that interest is prohibited by the Scriptures as a moral offence, or that associations are continued, which have some connection with the fulfilment of prophecy against the persecuted race of Israel. Even as late as the reigns of Henry VII., of Edward VI. and of Mary, when literature had so long waked from her slumbers that some correct views in political science would naturally dawn upon the world, every rate of interest was forbidden by express statute. It therefore follows, that if the common law of England concerning interest should be adopted, we must hold void all contracts for any quantity of interest, however small and reasonable. But in this enlightened age such a rule could no more be tolerated than the absurd principles of the common law concerning witchcraft and heresy. There can be in force here only those principles of the common law which have been expressly adopted, or which, being applicable to our state of society and of jurisprudence, and founded upon axioms of intelligent reason, may be considered as impliedly binding.”

Interest is allowed by the statutes of all the United States, and is generally a creature of statute, and only allowed where so authorized. Pekin v. Reynolds, supra; Supervisors v. Chickasaw Co. Supervisors, 64 Mississippi, 534; State v. Farrier, 47 New Jersey Law, 383; Randall v. Greenhood, 3 Montana, 506; Denver, &c. R. Co. v. Conway, 8 Colorado, 1. But where there was an account stated, the fact that there was no statute allowing interest at the VOL. XIV. 36

place where the transaction took place and the account was stated was held not to preclude the recovery of interest, at the rate according to custom, by way of damages. Young v. Godbe, 15 Wallace (U. S. Sup. Ct.), 562.

Interest is allowable as damages for default in the performance of a contract to pay money. Young v. Godbe, 15 Wallace (U. S. Sup. Ct.), 562; Buzzell v. Snell, 25 New Hampshire, 474; West Republic, &c. Co. v. Jones, 108 Penn. State, 55; People v. New York County, 5 Cowen (N. Y.), 331; Dodge v. Perkins, 9 Pickering (Mass.), 369; Chicago v. Tibbetts, 104 United States, 120. And in the discretion of the jury, as damages, in actions for negligence. Ell v. Northern Pac. R. Co., 1 North Dakota, 336; 12 Lawyers' Rep. Annotated, 97. In actions for breach of contract the allowance of interest is a question of law for the Court, but in actions sounding in tort it is generally a question for the jury. Mansfield v. N. Y. Cent. & H. R. R. Co., 114 New York, 331; 4 Lawyers' Rep. Annotated, 566.

Interest is generally not allowed on unliquidated contractual demands in the absence of an express or implied agreement to pay it. Palmer v. Stockwell, 9 Gray (Mass.), 237; McMahon v. N. Y., &c. R. Co., 20 New York, 463; Crosby v. Mason, 32 Connecticut, 482; McClintock's Appeal, 29 Penn. State, 360; Marsh v. Fraser, 37 Wisconsin, 149. And so of a demand for damages for breach of warranty on sale of goods. Lewis v. Rountree, 79 North Carolina, 122; 28 Am. Rep. 309.

But interest is allowable on an unsettled account from a reasonable time after it becomes due: Bates v. Starr, 2 Vermont, 536; Wilis v. Brown, Pennington (3 New Jersey Law, 538); and if an amount is capable of ascertainment, it is considered liquidated: Graham v. Chrystal, 1 Abbott Practice, N. S. (N. Y.), 121; Mansfield v. N. Y. Cent. & H. R. R. Co., supra. And interest is allowable, in an action of damages for destruction of property by negligence, on the damages, from the time of destruction. City of Allegheny v. Campbell, 107 Penn. State, 533; 52 Am. Rep. 478. So in an action for breach of contract to hire rooms for a certain time, at an agreed price, interest must be awarded on the recovery. De Lavallette v. Wendt, 75 New York, 579; 31 Am. Rep. 494. So in an action of covenant for rent, interest is allowed as matter of law from the time the rent fell due, although it was payable in wheat and services, the value of which was unliquidated by the contract. Van Rensselaer v. Jewett, 2 New York, 135. In this case BRONSON, J., stated the principles as follows: "Whenever a debtor is in default for not paying money, delivering property, or rendering services in pursuance of his contract, justice requires that he should indemnify the creditor for the wrong which has been done him; and a just indemnity, though it may sometimes be more, can never be less, than the specified amount of money, or the value of the property or services at the time they should have been paid or rendered, with interest from the time of the default until the obligation is discharged. And if the creditor is obliged to resort to the Courts for redress, he ought, in all such cases, to recover interest, in addition to the debt, by way of damages. It is true that on an agreement, like the one under consideration, the amount of the debt can only be ascertained by an inquiry concerning the value of the property and services. But the value can be ascertained; and when that has been done, the creditor, as a

Nos. 1, 2. Calton v. Bragg; Cook v. Fowler. - Notes.

question of principle, is just as plainly entitled to interest after the default, as he would be if the like sum had been payable in money. The English Courts do not allow interest in such cases; and I feel some diffidence in saying that it can be allowed here, without the aid of an Act of the Legislature to authorize it. But the Courts in this and other States have for many years been tending to the conclusion which we have finally reached, that a man who breaks his contract to pay a debt, whether the payment was to be made in money, or in anything else, shall indemnify the creditor, so far as that can be done by adding interest to the amount of damage which was sustained on the day of the breach." So in an action on the case for injury to property, interest was allowed from the day of the injury. Chicago, &c. R. Co. v. Shultz, 55 Illinois, 421; Dean v. Chicago & N. W. Ry. Co., 43 Wisconsin, 305.

Interest is not recoverable in an action of damages for breach of warranty on a sale of seed. White v. Miller, 78 New York, 393; 34 Am. Rep. 544. But a jury, in its discretion, may allow interest, where the value of property is diminished by a wrongful injury, upon the amount of the diminution of value. Wilson v. City of Troy, 135 New York, 96; 31 Am. St. Rep. 817; 18 Lawyers' Rep. Annotated, 449. The Court observed: "When interest may be allowed as part of the damages in actions of this character is a question which, in the present state of the law, is involved in much confusion and uncertainty, and in regard to which the decisions of the Courts are not harmonious. It is perhaps impossible to formulate a general rule embracing every possible case. The tendency of Courts in modern times has been to extend the right to recover interest on demand far beyond the limits within which that right was originally confined. What seemed to be the demands of justice did not permit the principle to remain stationary, and hence it has been for years in a state of constant evolution. This, in some measure, accounts for many of the apparently contradictory views to be found in the adjudged cases. There are certain fundamental principles however established by the decisions in this State, which, when properly applied, will aid in the solution of the question. There is of course a manifest distinction, always to be observed, between actions sounding in tort and actions upon contract. In the latter class of actions, there is not much difficulty in ascertaining the rule as to interest until we come to unliquidated demands. The rule in such cases has quite recently been examined in this Court, and principles stated that will furnish a guide in most cases. White v. Miller, 78 N. Y. 393; 34 Am. Rep.

544.

"We are concerned now only with the rule applicable in actions of tort. The right to interest, as a part of the damages, in actions of trover and trespass de bonis asportatis was given first in England by statute 3 & 4 William IV. The recovery was not however allowed by that statute as matter of right, but in the discretion of the jury. The earlier cases in this State followed the rule thus established in England, and permitted the jury, in their discretion, to allow interest in such cases. Beals v. Guernsey, 8 Johns. 446; 5 Am. Dec. 348; Hyde v. Stone, 7 Wend. 354; 22 Am. Dec. 582; Bissell v. Hopkins, 4 Cow. 53; Rowley v. Gibbs, 14 Johns. 385.

"The principle that the right to interest in such cases was in the discretion of the jury was however gradually abandoned, and now the rule is, that the plaintiff is entitled to interest on the value of property converted or lost to the owner by a trespass as matter of law. The reason given for the rule is that interest is as necessary a part of a complete indemnity to the owner of the property as the value itself, and in fixing the damages is not any more in the discretion of the jury than the value. Andrews v. Durant, 18 N. Y. 496; McCormick v. Pennsylvania C. R. Co., 49 N. Y. 315; Buffalo, &c. Co. v. Buffalo, 58 N. Y. 639; Parrott v. Knickerbocker, &c. Ice Co., 46 N. Y. 369. It is difficult to perceive any sound distinction between a case where the defendant converts or carries away the plaintiff's horse, and a case where through negligence on his part the horse is injured so as to be valueless. There is no reason apparent for a different rule of damages in the one case than in the other. In an early case in this State the principle was recognized that interest might be allowed, by way of damages, upon the sum lost by the plaintiff in consequence of defendant's negligence. Thomas v. Weed, 14 Johns. 255.

"We think the rule is now settled in this State, that where the value of property is diminished by an injury wrongfully inflicted, the jury may, in their discretion, give interest on the amount by which the value is diminished from the time of the injury. That is the rule laid down in the elementary books and sustained by the adjudged cases. 1 Sedgwick on Damages, 8th ed., secs. 317, 320; Walrath v. Redfield, 18 N. Y. 457, 462; Mairs v. Manhattan R. E. Ass'n, 89 N. Y. 498; Duryee v. Mayor, §c., 96 N. Y. 477, 479; Home Ins. Co. v. Pennsylvania R. Co., 126 N. Y. 671; Penn., &c. R. Co. v. Ziemer, 124 Pa. St. 560.

"There is a class of actions sounding in tort in which interest is not allowable at all, such as assault and battery, slander, libel, seduction, false imprisonment, &c. There is another class in which the law gives interest on the loss as part of the damages, such as trover, trespass, replevin, &c. And still a third class, in which interest cannot be recovered as of right, but may be allowed, in the discretion of the jury, according to the circumstances of the case."

The law implies a contract to pay interest where such is the usage of trade, or the course of dealing between the parties, or the special custom of the creditor known to and acquiesced in by the debtor. Sellick v. French, 1 Connecticut, 32; 6 Am. Dec. 185; Williams v. Craig, 1 Dallas (Pennsylvania Sup. Ct.), 313; Koons v. Miller, 3 Watts & Sergeant (Penn.), 271; Mech v. Smith, 7 Wendell (N. Y.), 315; Fisher v. Sargent, 10 Cushing (Mass.), 250; Ayers v. Metcalf, 39 Illinois, 307; Esterly v. Cole, 3 New York, 502.

WHERE a trustee has mixed up trust funds with his own, he will be charged with simple interest at the rate assumed by the Court to be the ordinary rate of interest. Compound interest will only be given when it is proved that he has employed the money in trade such as ordinarily produces profit upon the capital employed.

Burdick v. Garrick.

39 L. J. Ch. 369–374 (s. c. L. R. 5 Ch. 233; 18 W. R. 387).

An agent who is empowered to retain in his own hands his principal's money for the purpose of investment is a trustee for his principal, and cannot set up the Statute of Limitations as a bar to a suit for an account.

A gentleman resident in America by power of attorney authorised two persons in England, one of whom was a solicitor, to get in and sell his property here and reinvest the proceeds, and generally deal with it for his benefit. He died intestate in 1859, whereupon the agents paid the moneys which they had then received under the power, and which had not been reinvested, into a bank to the account of the firm of which the solicitor was a member. In 1867 letters of administration were taken out to the intestate by his widow, who filed a bill against the agents for an account. Held, that the agents were trustees for their principal, and could not set up the Statute of Limitations against his personal representative.

Semble (per Lord HATHERLEY, L. C.), that, if the agents were not trustees, inasmuch as the agency was continuing at the death of the principal, no debt accrued till after that time, and therefore the Statute of Limitations did not begin to run until letters of administration were taken out to his estate and effects.

When a trustee has employed trust funds for his own benefit, he will be charged as of course with simple interest at 5 per cent.

But compound interest will only be given when it is proved that the money has been used in trade, and the payment by a solicitor of it into his bank to the general account of his firin is not such an employment of the money in trade as to make him liable to be charged with compound interest. Quare, whether it can under any circumstances be given unless a case is made out for it on the bill. A married woman filed a bill as administratrix by her next friend, making her husband a co-defendant. Held, that although a demurrer to the bill by the