account was exceptionally uncertain and unliquidated. When a promissory note or other instrument expresses no time when it is payable, it is due immediately, and bears interest from date; and other commercial paper payable at day certain will bear interest after maturity. Notes payable on demand will not bear interest until a demand is made; the creditor, so long as he refrains from making a demand, acquiesces in the debtor's retention of the money.3 [619] It has been held that by consenting to a delay of payment a creditor is precluded from recovering interest during such delay; so, if a person entitled to money resists the reception of it, or fails to qualify himself to receive it, he cannot recover interest. If a note be payable at a fixed time, 1 Gaylord v. Van Loan, 15 Wend. 308; Lewis v. Lewis, Mart. & Hayw. 191; Purdy v. Phillips, 1 Duer, 169; Francis v. Castleman, 4 Bibb, 383; Sheehy v. Mandeville, 7 Cranch, 208; Farquhar v. Morris, 7 T. R. 124; Collier v. Gray, Overton, 110; Rogers v. Colt, 21 N. J. L. 19. 2 Grantt v. MacKenzie, 3 Camp. 51; Thorndike v. United States, 2 Mason, 1; Hastings v. Wiswall, 8 Mass. 455. Interest begins to run on a note payable on a certain day with interest after maturity although it is not suable until the expiration of the days of grace. Wheless v. Williams, 62 Miss. 369; Weems v. Ventress, 14 La. Ann. 267. 3 Hudson v. Daily, 13 Ala. 722; Vaughan v. Goode, Minor (Ala.), 417; Freeland v. Edwards, Mart. & Hayw. 207; Hurd v. Palmer, 21 U. C. Q. B. 49; Pate v. Gray, Hemp. 155; Patrick v. Clay, 4 Bibb, 246; Bartlett v. Marshall, 2 id. 469; Wallace v. Wallace, 8 Ill. App. 69; South v. Leary, Hardin, 518; Conyers v. Magrath, 4 McCord, 218: Trotter v. Grant, 2 Wend. 413; Wood v. Hickok, id. 501; McConnico v. Curzen, 2 Call, 301; Kerr v. Love, 1 Wash. (Va.) 217; Hadley v. Ayres, 12 Abb. (N. S.) 240; Wood v. Smith, 23 Vt. 706; Shemel v. Givan, 2 Blackf. 312; Delaware Ins. Co. v. De Launie, 3 Bin. 301; Crawford v. Willing, 4 Dall. 286; Oberinger v. Nichols, 6 Bin. 159; Newell v. Keith, 11 Vt. 214; Esterly v. Cole, 1 Barb. 235; S. C., 3 N. Y. 502; McKnight v. Dunlop, 4 Barb. 36; Hoagland v. Segur, 38 N. J. L. 230. In Darlington v. Wooster, 9 Ohio St. 518, on a demand note where there was no proof of a demand, it was held that by force of the statute fixing the rate of interest, the plaintiff was entitled to recover interest from the date of the note. The statute provides "that all creditors shall be entitled to receive interest upon all moneys after the same shall become due either on bond, bill, promissory note, or other instrument of writing." etc. In Billingsby v. Billingsby, 24 Ala. 518, it was decided that where a note is payable on a specified day, and contains a stipulation that it shall not bear interest until another specified day after maturity, an action is maintainable after maturity notwithstanding the judg ment will bear interest from its rendition even prior to the day specified for interest to begin. See Ijams v. Rice, 17 Ala. 404. 4 Craig v. Penick, 3 J. J. Marsh. 16; as one day after date, and there be a subjoined agreement that suit shall not be brought so long as the maker is alive or the payee is satisfied that he is solvent, interest still runs from the time specified for payment. Where an obligation was written payable in a certain month, it was held that interest did not commence until after the last day of that month. Interest is not payable before the maturity of the principal unless so expressed. Where a note is for several annual instalments interest is payable on them as they become due, and not annually on the whole sum.3 § 351. When demand necessary. Although money lent bears interest from the lending, it is only so when there is no agreement of the parties modifying the right. If a note for money lent be taken payable on demand it has no advantage on account of that consideration, and only bears interest like all other similar notes from the time of demand. Besides moneys due on running accounts and demand notes, there are various other kinds of what may be termed passive liabilities in respect to which the party liable cannot be placed in default, and be charged with interest, until the money is demanded, or notice of some fact is given." The question of notice has been much discussed, and is by no means settled. It is not necessary to enter into it in this connection. [620] In many cases, as in those of continuing guaranties, it is necessary to a complete cause of action; in others, to place the defendant in default so as to subject him to interest. Webster v. British Empire Mut. L. liable for interest. West v. Weyer, Ass. Co., 15 Ch. Div. 169. 46 Ohio St. 66. 1 Powell v. Guy, 3 Dev. & Batt. 70; Carter v. King, 11 Rich. 125; Rallman v. Baker, 5 Humph. 406. 2 Pollard v. Yoder, 2 A. K. Marsh. 264. 3 Bawder v. Bawder, 7 Barb. 560. 4 Butler v. Austin, 64 Cal. 3; Schmidt v. Limehouse, 2 Bailey, 276; Pullen v. Chase, 4 Ark. 120; Walker v. Wills, 5 Ark. 166. 5 Where no demand has been made upon a co-tenant in possession of the premises, either for their possession or the value of their use, he is not 6 See 2 Am. Lead. Cas. 33 et seq.; Vinal v. Richardson, 13 Allen, 521; Brown v. Curtis, 2 N. Y. 225; Bank of Newberry v. Sinclair, 60 N. H. 100. 7 A statutory provision that no interest accruing on a claim after a debtor's death shall be allowed against his estate unless the claim is verified and payment demanded within one year of the personal representative may be waived by the latter if he alone will be affected by the waiver. Croninger v. Marthen, 83 Ky. 662. It is not waived by his Bail are liable for interest on the judgment from the return of the ca. sa., for they are fixed from that time and are bound to take notice of the proceedings of the court. So, on a replevin bond, the sureties are liable for interest on the value of the property adjudged against the principal from the date of the judgment. The undertaking in these and similar cases is specific, depending only on contingencies determinable by the proceedings in the case, and of which the sureties are bound to inform themselves. But in an action for the benefit of a creditor of an insolvent estate brought upon an administrator's bond against a surety, it appeared that the creditor's claims had been allowed and the probate court had made a decree of distribution, and that the administrator died soon thereafter; it was held that interest should be added to the sum found due by the decree of distribution only from the time payment was demanded of the surety.? It is a general rule that a party is not entitled to notice unless he has stipulated for it, or it is necessary by the very nature of the transaction, as where the act on which payment is to be made is indefinite, and when it occurs will be pecul iarly in the knowledge of the payee. On a guaranty of pay ment of notes not exceeding in all a certain amount that should be discounted by a bank for another, it was held that the guarantor was liable to the amount of the guaranty, but not for interest until notice given that the principal had failed to pay. If the event on which the money is to be payable is one not particularly within the knowledge of the payee, as [621] a death or a marriage, even though the payee be a party to it," interest commences to run from the time when the event occurs. The general rule that the debtor must seek his creditor and tender the amount due does not apply when the debtor is a municipal or quasi-municipal corporation. In making payment on an unverified 442; Hodges v. Holeman, 2 Dana, claim. He may therefore insist on 396. compliance with the statute as to the unpaid balance. Jett's Ex'x v. Cockrill's Ex'x, 85 Ky. 348. 1 Constable v. Colden, 2 Johns. 480. 2 Heath v. Guy, 10 Mass. 371; overruling Payne v. McInteer, 1 id. 69. Vyse v. Wakefield, 6 M. & W. 4 Washington Bank v. Shirtleff, 4 Met. 30; Henning's Case, Cro. Jac, 432. 5 Troubar v. Hunter, 5 Rawle, 257; Sumner v. Beebe, 37 Vt. 562. Fletcher v. Pynsett, Cro. Jac. 102. such a case, if the creditor desires to secure interest on the obligation he holds, he must present it at the treasury of the debtor; failing to do so, he will not be entitled to interest after its maturity, at least if funds were provided to pay the principal and interest due. While it is the general rule that a depositor cannot maintain an action to recover his deposit until he has made a formal demand, and that the bringing of an action is not a sufficient demand, yet, "if the bank by words or conduct denies the depositor's right to his balance it becomes presently liable to an action without formal demand," and interest is recoverable as damages; as where it initiates proceedings which result in a transfer of the moneys of its depositors and thus puts it out of its own power to pay on their demand.2 § 352. When allowed on money had and received. The action for money had and received is equitable; whether interest shall be recovered depends upon the particular circumstances. In some cases it is said the defendant ought to refund the principal merely; and in others that he ought ex equo et bono to refund it with interest; each case depends on the justice and equity arising out of its facts.3 If the defendant has derived an advantage from the money, or committed some wrong in obtaining or disposing of it or is in default in not. paying it over, he will be charged with interest. Thus where the common property is rented out by one tenant in common, he is accountable to his co-tenants for their share of the rents received, and liable for interest upon his receipts of rent from the end of the rent year, because, having another's money and using it, he should pay interest on it. A person who bought a slave with notice of a better title was decreed to deliver him and pay profits; and interest was charged against him upon the hires actually received by him from other persons from the date of his receipts, but not upon the profits of such 1 Friend v. Pittsburgh, 131 Pa. St. 305; South Park Com'rs v. Dunlevy, 91 Ill. 49. 2 Chemical Nat. Bank v. Bailey, 12 Blatch. 480; Richmond v. Irons, 121 U. S. 27, 64. 3 Pease v. Barber, 3 Cai. 266; Marvin v. McRae, 1 Cheves, 61; Porter v. Nash, 1 Ala. 452. 4 Early v. Friend, 16 Gratt. 21; Jones v. Williams, 2 Call, 85; Dow v. Adams, 5 Munf. 21; Nuckit v. Lawrence, 5 Rand. 571. slave while in his own possession without being hired, these being unliquidated and conjectural sums, which he was in no default in not paying. If money is paid to the defendant under a mutual mistake, and fraud is not imputable to either party, interest cannot be recovered until after a demand.2 So a party receiving from an administrator full payment of his debt against the estate on the supposition that it is solvent, [622] when afterwards sued to recover the excess above the ratable part, on the estate proving insolvent, it was held that interest was not recoverable until after a demand. But interest is recoverable from the time money was received if it was wrongfully obtained and fraudulently kept, unless the plaintiff has been guilty of laches in demanding it and the defendant has not derived advantage from its use. A mere de positary, bailee, stockholder or trustee is not liable for interest by merely having the money in his hands; there must be a wrongful use made of it, refusal to pay on proper demand, or some neglect of duty by which the principal or interest was lost." 1 Baird v. Bland, 5 Munf. 492. 5 Solle, 2 Strobh. 390; Robinson v. Corn Exchange and Ins. Co., 1 Robt. 14: Jacot v. Emmett, 11 Paige, 142; Parsons v. Treadwell, 50 N. H. 356: Doxey v. Miller. 2 Ill. App. 30; Talbot v. National Bank, 129 Mass. 67; Wood v. Robbins, 11 id. 504; Bell Logan, 7 J. J. Marsh, 593; Vance v. Vance, 5 T. B. Mon. 521; Johnson v. 3 Walker v. Bradley, 3 Pick. 261; Haggin, 6 J. J. Marsh. 581; Taylor v. Knox, 1 Dana, 391; Johnson v. Eicke, 12 N. J. L. 316; Knight Reese, 2 Dall. 182; Rayner v. Eryson. 29 Md. 473; Ingersoll v. Campbell, 46 Stevens v. Goodell, 3 Met. 34. 4 Manufacturers' Nat. Bank v. Perry, 144 Mass. 313; Atlantic Bank v. Harris, 118 id. 147. U. S. 271. Γ. 5 United States v. Sanborn, 135 Ala. 282; Dilliard v. Tomlinson, 1 Munf. 183; Karr's Adm'r v. Karr, 6 6 Lake v. Park, 19 N. J. L. 108; Ex Dana, 5; Dexter v. Arnold, 3 Mason. parte Walsh, 26 Md. 495; Wade v. Wade's Adm'r, 1 Wash. C. C. 477; Huntley v. York Bank, 21 Pa. St. 284; Candee v. Skinner, 40 Conn. 464: Wy man v. Hubbard, 13 Mass. 232: New291; Roach v. Jelks, 40 Miss. 754; ton v. Bennet, 1 Bro. Ch. 359; United Reynolds v. Walker, 29 id. 250; Fitz- States v. Curtis, 100 U. S. 119; United gerald v. Jones, 1 Munf. 150; Mickle v. Cross, 10 Md. 352; Ruckman v. Pitcher, 20 N. Y. 9; Union Bank v. States v. Den vir, 106 id. 536; Sco |