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bargain is given up, or the title fails and the purchase-money must be refunded, interest will not be added in either [595] case to a purchaser who has had possession unless there is a liability to the superior owner for rents and profits; and then only to the extent of that liability. The reason assigned is if the occupant shall recover interest on the value of the land when he has obtained the equivalent of that interest in the use. thereof, he will have received and his vendor will have Cost more than the value of what was given for it; and as the occupant is liable to the evictor for mesne profits for the period of limitation preceding the eviction, for that period he should not be entitled to interest on the consideration which he paid for the land. This doctrine is further illustrated by the case of a tenant by the curtesy conveying in fee with warranty. The grantee has been held entitled to recover from his estate on the covenant only the purchase-money, with interest from the time of his death. So where an eviction is only by the claim of a tenant in dower, the measure of damages is the present value of an annuity equal to interest at the legal rate on one-third of the consideration money for the

man, 36 Vt. 216; Rich v. Johnson, 2 Pin. (Wis.) 88; Noonan v. Ilsley, 21 Wis. 138; Patterson v. Stewart, 6 W. & S. 527; Fernander v. Dunn, 19 Ga. 497; Harding v. Larkin, 41 Ill. 413; Thompson v. Jones, 11 B. Mon. 365; Hale v. New Orleans, 13 La. Ann. 499; Bach v. Miller, 16 id. 44; Clark v. Parr, 14 Ohio, 118; Whitlock v. Crew, 28 Ga. 289; Collier v. Cowyer, 52 Ark. 322.

1 Point Street Iron Works v. Turner, 14 R. I. 122; Crockett v. Gray, 39 Kan. 659; Ware v. Lippincott, 45 N. J. Eq. 320; Whitlock v. Crew, 28 Ga. 289.

If a bona fide purchaser in possession is allowed the value of his improvements as against the owners of the land he will not be entitled to interest thereon. Boykin v. Ancrum, 28 S. C. 486.

2 Cogswell's Heirs v. Lyon, 3 J. J. Marsh. 40. In this case the deed was

avoided, although the entire consideration had been paid, on the ground of fraud on creditors, and the court say: “As a general proposition, it is plainly just and reasonable that the vendee, after losing the benefit of his purchase, should be restored to the price which he gave, and its annual interest. But if he shall have already received the interest or its equivalent in the enjoyment of the profits of the land, he has no right, in conscience, to compel the vendor to pay it again. And surely, if he must have the interest, the vendor should have rents. But, in equity, the interest on the price and the use of the land are considered equivalent, and, therefore, there need be no account of the profits, as they should be set off against the interest." See Bartlett v. Blanton, 4 J. J. Marsh. 426.

3 House v. House, 10 Paige, 158.

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time the tenant in dower has a probable expectation of life according to approved tables of life annuities.1 The purchaser must sometimes submit to equitable terms when in default in order to obtain relief by specific performance. In such cases, in order fully to indemnify the seller, the court, according to the circumstances, may decree a larger amount of interest than such vendor could recover as plaintiff; as by compounding the interest with rests at short intervals. When a vendee [596] has a right to recover a deposit of a part or the whole of the purchase-money because of the vendor's inability to make title he can also recover interest from the time it was paid though there was no express agreement to pay it.3

§ 329. Interest allowed from time when money ought to be paid. Interest is imposed by law as damages for not discharging a debt when it ought to be paid. In this country the principle has long been settled that if a debt ought to be paid at a particular time, and is not then paid through the default of the debtor, compensation in damages equal to the value of money, which is the legal interest upon it, shall be paid during such time as the party is in default. The important practical inquiry, therefore, in each case in which interest is in question is, what is the date at which this legal duty to pay, as an absolute present duty, arose. This date does not always coincide with that at which the demand is

1 Wager v. Schuyler, 1 Wend. 553. 2 Cleveland v. Burrill, 25 Barb. 532; Morris v. Hoyt, 11 Mich. 10.

3 Flinn v. Barber, 64 Ala, 200. 41 Am. Lead. Cases, 498; Day v. Brett, 6 Johns. 24; Hunt v. Jucks, 1 Hayw. 173; Broughton v. Mitchell, 64 Ala. 210; Flinn v. Barber, id. 200; Milton v. Blackshear, 8 Fla. 161; Bishop Hill Colony v. Edgerton, 26 Ill. 54; Cheek v. Waldrum, 25 Ala. 155; Purdy v. Philips, 11 N. Y. 406; People v. New York, 5 Cow. 331; Dodge v. Perkins, 9 Pick. 368; Williams v. Sherman, 7 Wend. 109; Ten Eyck v. Houghtaling, 12 How. Pr. 523; Van Rensselaer v. Jewett, 2 N. Y. 135; Maltman v. Williamson, 69 Ill. 423; Swett v. Hooper, 62 Me. 54;

Wenman v. Mohawk Ins. Co., 13 Wend. 267; French v. French, 126 Mass. 360; McMahon v. New York, etc. R. Co., 20 N. Y. 463. In this case the court held that interest may be charged on the ground of the debtor's default although the amount of the demand neither has been nor can readily be ascertained.

A debtor is not excused from paying when the money is due where the contract under which it is claimed fixes the price of the work, though the amount of material furnished under it was uncertain and the claim was disputed in good faith. Louisville v. Henderson's Trustee, 11 S. W. Rep. 111; -- Ky. —.

legally due and suable. Where a sum certain is payable at a particular time, either immediately after the debt is contracted or in the future, the debtor should pay at that time; otherwise, he is at once in default and liable for interest. In such cases it is his duty to pay at the very time when the debt is legally and technically due. It is upon the ground

1 Elkin v. Moore, 6 B. Mon. 462; Rensselaer Glass Factory v. Reid, 5 Cow. 587, 611; Robinson v. Bland, 2 Bur. 1086; Farquhar v. Morris, 7 T. R. 124; Purdy v. Philips, 11 N. Y. 406; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Peoria M. & F. Ins. Co. v. Lewis, 18 Ill. 553; Hunt v. Jucks, 1 Hayw. 173; Milton v. Blackshear, 8 Fla. 161; Wenman v. Mohawk Ins. Co., 13 Wend. 267; Cheek v. Waldrum, 25 Ala. 152; Bishop Hill Colony v. Edgerton, 26 Ill. 54; Royal v. Miller, 3 Dana, 55-58; Newlan v. Shafer, 38 Ill. 379; Putnam v. Lewis, 8 Johns. 389.

Interest is not allowed with the [597] same liberality in England as in this country. In Mayne on Damages (Wood's ed. 224) it is said: "Formerly it was thought, where a sum of money was agreed to be paid on a particular day, that on default, interest from that day might be recovered without any express or implied contract to that effect. Blaney v. Hendricks, 2 W. Bl. 761; S. C., 3 Wils. 205; Shipley v. Hammond, 5 Esp. 114; Chalie v. Duke of York, 6 Esp. 45; De Havilland v. Bower Bank, 1 Camp. 50; Mountford v. Willes, 2 B. & P. 337. But this doctrine has now been overruled. Gordon v. Swan, 12 East, 419; Higgins v. Sargent, 2 B. & C. 348; Page v. Newman, 9 B. & C. 378; Foster v. Weston, 6 Bing. 709; Cook v. Fowler, L. R. 7 H. L. 27; 43 L. J. (Ch.) 855. It has, however, been always held that where, by an award, money is made payable on a certain day, in

terest ought to be allowed from that day, if payment was demanded at the place appointed. Pinham v. Tuckington, 3 Cowp. 468; Churcher v. Stringer, 2 B. & Ad. 777; Johnson v. Durant, 4 C. & P. 327. I cannot, on principle, explain this exception. Many apparent exceptions to the rule that interest is only recoverable in the cases just mentioned may be explained by distinguishing between interest recovered as part of the debt and interest recovered as damages for its detention. For instance, interest on a deposit may be recovered, if laid as special damage in an action for breach of an agreement to sell an estate. De Bernales v. Wood, 3 Camp. 258; Farquhar v. Farley, 7 Taunt. 592. So it may be allowed as damages in an action on a mortgage deed after the day of default (Dickinson v. Harrison, 4 Price, 282; Atkinson v. Jones, 2 A. & E. 439; Price v. G. W. Ry. Co., 16 M. & W. 244); or upon a contract to pay money upon a particular day (Watkins v. Morgan, 6 C. & P. 661); or upon a covenant to indemnify a surety. Petre v. Duncombe, 20 L. J. (Q. B.) 242; S. C., 2 Lown., M. & P. 107. Where a written security is given for the payment of money on a particular day, with interest up to that day at a fixed rate, a claim for subsequent interest would be a claim for damages at the discretion of the tribunal before which the demand is made, and not for interest due as a matter of law. The former rate might but need not be adopted in assessing the damages.

stated that statutes which give a preference to one class of creditors over another in the distribution of an estate are construed to include interest on the claims of the preferred class,

Cook v. Fowler, L. R. 7 H. L. 27-32. And it is laid down as a general rule, that although it be not due ex contractu, a party may be entitled to damages in the form of interest where there has been long delay under vexatious and oppressive circumstances in the payment of what is due under the contract. Hillhouse v. Davis, 1 M. & S. 169; Arnott v. Redfern, 3 Bing. 353.

"Interest cannot be recovered as such in an action against the vendor of an estate, the sale of which has gone off, for the recovery of a deposit which has been lying idle (Bradshaw v. Bennett, 5 C. & P. 48; Maberley v. Robins, 5 Taunt. 625); but it may be recovered as special damages for breach of the contract if so laid. De Bernales v. Wood, 3 Camp. 258; Farquhar v. Farley, 7 Taunt. 592. But the principal and auctioneer stand on a different footing; and in an action against the latter to recover the deposit paid to him, interest cannot be recovered even as damages, unless, perhaps, after a demand and refusal on the contract being rescinded. Lee v. Warner, 8 Taunt. 45. Not even when the auctioneer has made interest upon the money while in his hands, and although he was requested by one of the parties, before the completion of the contract, to invest it. Harrington v. Hoggart, 1 B. & Ad. 577. Interest is not due as such in an action for money secured on mortgage, after day of default, without covenant to pay interest, but may be recovered as damages. Nor in an action for money lent unless there has been an usage to that effect (Alton v. Bragg, 15 East, 223; Shaw v.

Picton, 4 B. & C. 723); or for money had and received (Walker v. Constable, 1 B. & B. 306); even though by the course of dealing between the defendant and the person from whom the money was received to the plaintiff's use the sum would have borne interest; for no right passed to the plaintiff but a right to demand the sum actually in the defendant's hands. Freeling v. Schroeder, 2 Bing. N. C. 79. And it makes no difference that the money has been obtained by fraud (Crockford v. Winter, 1 Camp. 124); nor in actions for money paid (Carr v. Edwards, 3 Stark. 132; Hicks v. Mareco, 5 C. & P. 498); or on account stated (Nichol v. Thompson, 1 Camp. 52; Chalie v. Duke of York, 6 Esp. 45; Blaney v. Hendricks, 2 W. Bl. 761. Contra, Abbot, C. J., 2 C. & B. 349); or for goods sold, even though to be paid for on a particular day. Gordon v. Swan, 12 East, 419. Mountford v. Willes, 2 B. & P. 337, merely decides that if the jury allow interest- which they clearly may do as damages — the court will not disturb their verdict, though it is otherwise where the payment was to be made by bill. Nor in an action for work and labor (Trelawney v. Thomas, 1 H. Bl. 303; Milsom v. Hayward, 9 Price, 134); nor on money lying with a banker (Edwards v. Vere, 5 B. & Ad. 232); nor upon a policy of insurance (Kingston v. McIntosh, 1 Camp. 518; Bain v. Case, 3 C. & P. 496); nor are annuitants entitled to interest on the arrears of their annuities." Earl of Mansfield v. Ogle, 4 De G. & J. 41; Booth v. Carleton, 30 L. J. (Ch.) 178; Blogg v. Johnson, L. R. 2 Ch. 225. See Marsh v. Jones, 40 Ch. Div. 563.

although the assets are not sufficient to pay all creditors.1 Interest should be allowed on the claims against a national bank during the period between the time it is placed in the hands of a receiver and the closing up of its affairs, before appropriating the surplus to the stockholders.2

§ 330. No interest on penalties; statutory liability for riots. Interest is not allowed on statutory penalties.3 [598] Where a constable who failed to return an execution within the time prescribed by statute was declared liable for the amount then due and ten per cent. damages, it was held interest could not be added. Before judgment the penalty. allowed for taking or receiving usurious interest by a national bank does not bear interest. A judgment imposing a fine is not interest-bearing. Interest is not recoverable under a statute which makes a county or municipality liable to the owner of property for damages resulting thereto from a riot; but it may be recovered on stipulated damages.

§ 331. When allowed on penalty of bonds. There has been some question in actions upon penal bonds where the damages for breach of the condition equal or exceed [599] the penalty whether recovery beyond the penalty can be had by adding interest from the date of the breach, where such damages are of such a nature as to bear interest. But the American courts are now nearly agreed that interest on the penalty in such cases may be recovered.10 It is not, however,

1 Shultz v. Weaver, 11 S. & R. 182; Champneys v. Lyle, 1 Bin. 327.

French v. French, 126 Mass. 360.
Contra, Devereux v. Burgwin, 11

2 Chemical Nat. Bank v. Bailey, 12 Ired. L. 490 (not even from the date Blatch. 480. of the writ).

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See Hellen v. Ardley, 3 C. & P. 12; Lonsdale v. Church, 2 T. R. 388; Brangwin v. Perrott, 2 W. Bl. 1190; Clark v. Bush, 3 Cow. 151; McClure v. Dunkin, 1 East, 436; Francis v. Wilson, Ry. & M. 105; Harris v. Clap, 1 Mass. 308; United States v. Arnold, 1 Gall. 348; Fairlie v. Lawson, 5 Cow. 424; Fraser v. Little, 13 Mich. 195.

10 Maddox v. Rader, 9 Mont. 126; Jefferson Co. v. Lineberger, 3 id. 246; Frink v. Southern Express Co., 82 Ga. 33; Burt v. Delano, 4 Cliff,

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