damages, unless there be a distinct contract to pay interest; (P) but there, also, this contract may oe implied from the usage of trade, or from other circumstances. (q) In this country, the rule seems to be well established, that whoever receives money not his own, and detains it from the owner unlawfully, must pay interest therefor. Hence a public officer, retaining money wrongfully, is chargeable with interest during the time of such wrongful detainer. (r) So an agent, unreasonably neglecting to inform his principal of the receipt of money, is liable for the interest from the time when he should have communicated such information. (s) But an agent is not generally liable for interest on funds in his hands, unless he uses them, or is in default in accounting for them. (t) Interest is recoverable on money fraudulently obtained and withheld. (u)

In some of our States the statutes allow parties to a contract to make their own bargain as to the rate of interest to be paid, but provide a legal rate where no special bargain is made. Owing to this state of the law, the question has sometimes arisen, what rate shall be charged, in cases where the contract provides for a higher rate than the legal rate up to the time of maturity, but is silent as to the rate to be charged, after the time of maturity until payment. Upon this question there have been diverse decisions by the different courts; some holding

(p) De Bernales v. Fuller, 2 Camp. 426; Attwood v. Taylor, 1 Man. & G. 279, note. In De Havilland v. Bowerbank, 1 Camp. 50, Lord Ellenborough said, that "He thought, that where money of the plaintiff had come to the hands of the defendant to establish a right to interest upon it, there should either be a specific agreement to that effect, or something should appear from which a promise to pay interest might be inferred, or proof should be given of the money being used." In Calton v. Bragg, 15 East, 253, Lord Ellenborough said, "Lord Mansfield sat here for upwards of thirty years; Lord Kenyon for above thirteen years, and I have now sat here for more than nine years; and during this long course of time, no case has occurred where, upon a simple contract of lending, without an agreement for payment of the principal at a certain time, or for interest to run immediately, or under special circumstances

from which a contract for interest was to be inferred, has interest been ever given."

(q) Eddowes v. Hopkins, 1 Doug. 376; Moore v. Voughton, 1 Stark. 487; Blaney v. Hendrick, 3 Wilson, 205, 2 W. BI. 761. Where the principal is to be paid at a specific time, an agreement to pay interest after that time is implied. Robinson v. Bland, 2 Burr. 1086; Calton v. Bragg, 15 East, 226, per Lord Ellenborough; Boddam v. Riley, 2 Bro. Ch. 2; Mountford v. Willes, 2 B. & P. 337.

(r) Commonwealth v. Crevor, 3 Binney, 123; Crane v. Dygert, 4 Wend. 675; People v. Gasherie, 9 Johns. 71; Hudson v. Tenney, 6 N. H. 456.

(s) Dodge v. Perkins, 9 Pick. 368. (t) Ellery v. Cunningham, 1 Met. 112; Bedell v. Janney, 4 Gilman, 193; Williams v. Storrs, 6 Johns. Ch. 353.

(u) Wood v. Robbins, 11 Mass. 504 See supra, note (b).

that the rate fixed by the terms of the contract shall govern for the time after the breach, and others that the rate fixed by law shall then prevail. The Supreme Court of the United States, reversing the decision of the Territorial Courts of Minnesota, has decided, that the rate provided by statute shall prevail. (v)

Generally, where unliquidated damages are demanded, interest is not payable; nor is it in actions grounded on tort. But even in these actions, it is true that interest is excluded in name rather than fact. That is, the jury may make use of it in their own estimate of damages, if all the circumstances of the case lead to the inference that there was a contract or understanding that interest should be paid, or, if they should be satisfied that the plaintiff would not be adequately and justly compensated or indemnified without the allowance of interest. (w)

(v) Brewster v. Wakefield, 22 How. 118, See also, Macomber v. Dunham, 8 Wend. 550; U. S. Bank v. Chapin, 9 Wend. 471; Ludwick v. Huntzinger, 5 Watts & S. 51. Contra, Keene v. Keene, 3 C. B. N. s. 143; Gibbs v. Fremont, 9 Exch. 25, 20 Eng. L. & E. 555; Kohler v. Smith, 2 Cal. 597; Pridgen v. Andrew, 7 Tex. 461; Hopkins v. Crittenden, 10 Tex. 189; Kilgore v. Powers, 5 Blackf. 22; Chinn v. Hamilton, Hempst. C. C. 438; and Brewster v. Wakefield, 1 Minn. 352, the case mentioned in the text as reversed.

(w) Arnott v. Redfern, 3 Bing. 353; Dox v. Dey, 3 Wend. 356; Hull v. Caldwell, 6 J. J. Marsh. 208; Sargent v. Franklin Ins. Co. 8 Pick. 90. In Ancrum v. Slone, 2 Speers, 594, Frost, J., in delivering the opinion of the court, said: "The first ground of appeal], presents the question of law, whether, in a special action on the case, in assumpsit on a warranty of soundness, interest is recoverable eo nomine. It is necessary to the allowance and estimate of interest, to ascertain the sum due, and the time when payable. Accordingly, all engagements or acknowledgments in writing, expressing the sum due and the time of payment, have been recognized as liquidated demands, and on them it has been permitted to recover interest by way of damages. Interest has also been allowed in liabili ties to pay money, though not in writing,

if the sum is certain or capable of being reduced to certainty, from the time when, either by the agreement of the parties or the construction of law, the payment was demandable. As in cases of money had and received, paid for the use of another; or by mistake, or on an account stated; and on open accounts by express agreement; and when, by the course of dealing between the parties or the usage of trade, such agreements may be inferred. The time of payment must also be determined, either by the agreement of the parties, the course of dealing between them, by known custom, or the usage of trade. Thus, open accounts do not bear interest, though the sum is certain; because by custom the credit is indefinite. But if there be an agreement expressed or implied, it is allowed accordingly. It is not recoverable on a quantum meruit, for work and labor, nor quantum valebant, for goods sold, nor on a verbal contract to pay a sum certain for rendering a service, 1 Hill, 393 : nor on a due-bill, payable on demand, though expressed to be for a loan of money, on the day of the date, except from the time of demand, 2 Bail. 276: nor on a balance of a factor's account, due to his employer, except from the time of demand. 1 Hill, 400. Other cases might be adduced to show that the general rule is to allow interest, eo nomine, only on money demands certain or capa.

SECTION II.

.

WHAT CONSTITUTES USURY.

The statutes of usury in this country have been copied, in substance, but with more or less variation of form, from the 12 Anne, stat. 2, ch. 16, which provides, that no person shall take, directly or indirectly, upon any contract, "for loan of any moneys, wares, merchandise, or other commodities whatsoever, above the value of five pounds for the forbearance of one hundred pounds for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter time;" and that "all bonds, contracts, and assurances whatsoever, for payment of any principal, or money to be lent, or covenanted to be performed, upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of five pounds in the hundred, as aforesaid, shall be utterly void;" and further pro

ble of being reduced to certainty, and payable at a definite time, either expressly or impliedly. There may be some exceptions to the rule, and its application has been extended by construction of law. Thus, on a breach of warranty, if the contract is rescinded by a tender of the property to the seller, indebitatus assumpsit will lie for the price paid, as money had and received by the vendor to the use of the vendee, and interest may be recovered. And in covenant, on a warranty of title, interest may be found, in addition to the value, for a total or partial eviction. These cases proceed on the ground of a rescission of contract and restitution to the plaintiff of the price paid. But a special assumpsit, on a warranty of soundness, for damages, is subject to the rule governing actions sounding in damages, that interest is not recoverable eo nomine." In Holmes v. Misroon, 1 Const. R. 21, 3 Brev. 209; which was a special assumpsit, the law is thus affirmed by Nott, J.: "This was a special action on the case, sounding altogether in damages, and therefore could not carry interest. I think the jury might have

made the value of the property and inter-
est thereon the measure of damages, and
found a verdict for the aggregate amount;
but no law has been introduced to show
that they could give interest eo nomine, in
an action of this sort.
To the
argument, if interest may be allowed in
the aggregate damages found by a ver
dict, why may it not be allowed eo nomine?
The reply is, the law does not inquire into
the particulars of a verdict for damages,
and in some cases interest furnishes a just
and convenient measure for the jury. But
it is a stated compensation for the use of
money, and as it cannot be separated,
even in idea, from debt, seems not prop-
erly incident to uncertain and contingent
damages. The distinction is admitted to
be one of form, depending upon the form
and cause of action." In the same way,
interest may be taken into account by the
jury, in assessing damages in trespass and
trover; Hyde v. Stone, 7 Wend. 354;
Beals v. Guernsey, 8 Johns. 446; Ken-
nedy v. Whitwell, 4 Pick. 466. And in
replevin; Rowley v. Gibbs, 14 Johns.
385; Suydam v. Jenkins, 3 Sandf. 614.

vides, that any person who shall take more than five pounds per cent., contrary to the provisions of the statute, shall forfeit and lose for every such offence the treble value of the moneys, wares, merchandises, and other things so lent. (x) Our statutes differ greatly as to the amount which may be taken or received, the legal interest in each State being intended to represent the fair worth of money, and that varying greatly in different parts of this country. They differ also very much in the penalties with which they visit the offence of usury.

Originally, the principle of the statute of Anne was adopted generally, if not universally, and the whole debt forfeited. Afterwards, there was a considerable relaxation in this respect; but with some fluctuation and a return to severity; and now, usury works, generally, a forfeiture of the usurious interest and some part of the principal, or the lawful interest by way of penalty.

The simplest definition of usury is, the taking of more inter est for the use of money than the law allows. There must therefore be the use of money; which may be by a loan, or by the continuance of an existing debt. That is, one may now lend money to another, and so give him the use of it, or may agree with him that he shall not now repay a sum which has become due, and so permit him to use it. (y) To the one or the other of these classes all contracts for the use of money may be referred. And, to constitute the offence of usury, there must be an agreement that he who has the use of the money

(x) By the 3 & 4 Will. 4, c. 98, 8. 7, and 2 & 3 Vict. c. 37, enlarging the statute of William, all contracts were taken from the operation of the statute of Anne, except those contained in bills of exchange and promissory notes having more than twelve months to run, those for the loan of money less in amount than the sum of ten pounds sterling; and excepting also contracts for "the loan or forbearance of any money upon security of any lands, tenements, or hereditaments, or any estate or interest therein." Any usurious contract is therefore valid in England, with the above excepted cases. Thibault v. Gibson, 12 M. & W. 88; Semple v. Cornewall, 10 Exch. 617, 29 Eng. L. & Eq. 436

(y) It is well settled, that if there be a contract for the payment of illegal interest, for the further forbearance of a debt at that time existing, or if money be actually paid for such forbearance, it is usury. Parker v. Ramsbottom, 5 Dowl. & R. 138, 3 B. & C. 257, post, p. 110, n. (f); Evans v. Negley, 13 S. & R. 218; Hancock v. Hodgson, 3 Scam. 333; Carlis v. M'Laughlin, 1 D. Chip. 111; Seneca County Bank v. Schermerhorn, 1 Denio, 135; Gray v. Belden, 3 Fla. 110; Craig v. Hewitt, 7 B. Mon. 475; Young v. Miller, 7 B. Mon. 540. See also, Pollard v. Scholy, Cro. Eliz. 20.

pay to the owner of it more than lawful interest; that is, more than the law permits to be paid for the use of money.

SECTION III.

IMMATERIALITY OF THE FORM OF THE CONTRACT.

It is entirely immaterial in what manner or form, or under what pretence this is done. (2) And countless are the devices by which usurers endeavor to avoid the provisions of the statute; as by lending a thousand dollars on a note for a year at lawful interest, and immediately receiving half of it back again in payment; or by selling some property, at the time of the loan, at an exorbitant price. (a) In these cases a nice distinction