Gambar halaman

1 Supp. to Ves. jr. 194; Stark. Ev. pt. iv. 789, n. (a).

5. On the arrears of an annuity secured by a specialty. 14 Vin. Ab. 458, pl. 8; 3 Atk. 579; 9 Watts, R. 530.

6. On a deposit by a purchaser, which he is entitled to recover back, paid either to a principal, or an auctioneer. Sugd. Vend. a27 ; 3 Campb. 25^; 5 Taunt. 625. Sed vide 4 Taunt. 334, 341.

7. On purchase-money, which has lain dead, where the vendor cannot make a title. Sugd. Vend. 3:27.

8. On purchase-money remaining in purchaser's hands to pay off encumbrances. 1 Sch. & Lef. 134. See 1 Wash. 125; ^Jtfunf. 342; 6 Binn. 435.

9. On judgment ifcte. 14 Vin. Abr. 458, pl. 15; *-Dall. 251; 2 Ves. 162; 5 Binn. R. 61; lb. 220. In Massachusetts the principal of a judgment is recovered by execution; for the interest the plaintiff must bring an action. 14 Mass. 239.

10. On judgments affirmed in a higher court. 2 Burr. 1097; 2 Str. 931 ; 4 Burr. 2128; Dougl. 752, n. 3; 2H.B1. 267; Id. 284; 2 Campb. 428, n.; 3 Taunt. 503 ; 4 Taunt. 30.

11. On money obtained by fraud, or where it has been wrongfully detained. 9 Mass. 504; 1 Campb. 129; 3 Cowen, 426.

12. On money paid by mistake, or recovered on a void execution. 1 Pick. 212; 9 Serg. <Sc Rawle, 409.

13. Rent in arrear bears interest, unless under special circumstances, which may be recovered in action, 1 Yeates, 72; 6 Binn. 159; 4 Yeates, 264; but no distress can be made for such interest. 2 Binn. 246. Interest cannot, however, be recovered for arrears of rent payable in wheat. 1 Johns. 276. See 2 Call, 249; Id. 253; 3 Hen. & Munf. 463: 4 Hen. & Munf. 470; 5 Munf. 21.

14. Where from the course of

dealing between the parties, a promise to pay interest is implied. 1 Campb. 5U; Id. 52; 3 Bro. C. C. 436; Kirby, 207.

Thirdly, Of interest on legacies. 1. On specific legacies. Interest on specific legacies is to be calculated from the date of the death of testator. « Yes. sen. 563; 6 Ves. 345; 5 Binn. 475; 3 Munf. 10.—2. A general legacy when the time of payment is not named by the testator is not payable till the end of one year after testator's death, at which time the interest commences to run. 1 Ves. jr. 366; 1 Sch. & Lef. 10; 5 Binn. 475; 13 Ves. 3-iS; 1 Ves. 308 ; 3 Ves. & Bea. 183. But where only the interest is given, no payment will be due till the end of the second year, when the interest will begin to run. 7 Ves. 89.—3. Where a general legacy is given, and the time of payment is named by the testator, interest is not allowed before the arrival of the appointed period of payment, and that notwithstanding the legacies are vested; Prec. in Chan. 337. But when that period arrives, the legatee will be entitled, although the legacy be charged upon a dry reversion. 2 Atk. 108. See also Daniel's Rep. in Exch. 84; 3 Atk. 101 ; 3 Ves. 10; 4 Ves. 1 ; 4 Bro. C. C. 149, n.; S. C. 1 Cox, 133. Where a legacy is given payable at a future day with interest, and the legatee dies before it becomes payable, the arrears of the interest up to the time of his death must be paid to his personal representatives. McClel. Exch. Rep. 141. And a bequest of a sum to be paid annually for life bears interest from the death of testator. 5 Binn. 475.—4. Where the legatee is a child of the testator or one towards whom he has placed himself in loco parentis, the legacy bears interest from the testator's death, whether it be particular or residuary; vested, but payable at a future time, or contingent, if the child have no maintenance. In that case the court will do what, in common presumption, the father would have done, provide necessaries for the child. 2 P. Wms. 21; 3 Ves. 287; Id. 13; Bac. Abr. Legacies, K 3; Fonb. Eq. 431, n. j.; 1 Eq. Cas. Ab. 301,pl. 3; 3 Atk. 432 ; 1 Dick. Rep. 310; 2 Bro. C. C. 59; 2*j Rand. Rep. 409. In case of a child in ventre sa mere, at the time of the father's decease, interest is allowed only from its birth. 2 Cox, 425. Where maintenance or interest is given by the will, and the rate specified, the legatee will not, in general, be entitled to claim more than the maintenance or rate specified. 3 Atk. 697, 716; 3 Ves. 286, n.; and see further as to interest in cases of legacies to children, 15 Ves. 363; 1 Bro. C. C. 267; 4 Madd. R. 275; 1 Swanst.553; 1 P. Wms. 783; 1 Vern. 251; 3 Ves. & Bea. 183.—5. Interest is not allowed by way of maintenance to any other person than the legitimate children of the testator, 3 Ves. 10; 4 Ves. 1; unless the testator has put himself in loco parentis. 1 Sch. & Lef. 5, 6. A wife, 15 Ves. 301, a niece, 3 Ves. 10, a grandchild, 15 Ves. 301, 6 Ves. 546, 12 Ves. 3, 1 Cox, 133, are therefore not entitled to interest by way of maintenance. Nor is a legitimate child entitled to such interest if he have a maintenance; although it may be less than the amount of the interest of the legacy. 1 Scho. & Lef. 5; 3 Ves. 17. Sed vide 4 John. Ch. Rep. 103; 2 Rop. Leg. 202.—6. Where an intention though not expressed is fairly inferable from the will, interest will be allowed. 1 Swanst. 561, note; Coop. 143.—7. Interest is not allowed for maintenance, although given by immediate bequest for maintenance, ifthe parent of the legatee, who is under moral obligntion to provide for him be of sufficient ability, so that the interest

will accumulate for the child's benefit, until the principal becomes payable. 3 Atk. 399; 3 Bro. C. C. 416; 1 Bro. C. C. 386; 3 Bro. C. C. 60. But to this rule there are some exceptions. 3 Ves. 730; 4 Bro. C. C. 223; 4 Madd. 275, 2s9; 4 Ves. 498.—8. Where a fund, particular or residuary, is given upon a contingency, so that the intermediate interest undisposed of, that is to say, the intermediate interest between the testator's death, if there be no previous legatee for life, or, if there be, between the death of the previous taker and the happening of the contingency, will sink into the residue for the benefit of the next of kin or executor of tWjestator, if not bequeathed by biw.; but if not disposed of, for the beauties of his residuary legatee. 1 HCU. C. 57; 4 Bro. C. C. 114; Meriv. 384; 2 Atk. 329; Forr. 145; 2 Rop. Leg. 224.-9. Where a legacy is given by immediate bequest whether such legacy be particular or residuary, and there is a condition to divest it upon the death of the legatee under twentyone, or upon the happening of some other event, with a limitation over, and the legatee dies before twentyone, or before such other event happens, which nevertheless does take place, yet as the legacy was payable at the end of a year after the testator's death, the legatee's representatives, and not the legatee over, will be entitled to the interest which accrued during the legatee's life, until the happening of the event which was to divest the legacy. 1 P. Wms. 500; 2 P. Wms. 504'; Ambl. 448; 5 Ves. 335; Id. 522.—10. Where a residue is given, so as to be vested but not payable at the end of the year from the testator's death, but upon the legatee's attaining twentyone, or upon any other contingency, and with a bequest over divesting the legacy, upon the legatee's dying under age, or upon the happening of the contingency, then the legatee's representatives in the former case, and the legatee himself in the latter, shall be entitled to the interest that became due, during the legatee's life, or until the happening of the contingency. 2 P. Wms. 410; 1 Bro. C. C.81 ; Id.


335; 3 Meriv. 335 11. Where a

residue of personal estate is given generally, to one for life with remainder over, and no mention is made by the testator respecting the interest, nor any intention to the contrary to be collected from the will, the rule appears to be now settled that the person taking for life, is entitled to interest from the death of the testator, on such part of the residue bearing interest, as is not necessary for the payment of debts. And it is immaterial whether the residue is only given generally, or directed to be laid out with all convenient speed in funds or securities, or to be laid out in lands. See 6 Ves. 520; 9 Ves. 540, 553; 2 Rop. Leg. 234; 9 Ves. 80—12. But where a residue is directed to be laid out in land, to be settled on one for life, with remainder over, and the testator directs the interest to accumulate in the mean time, until money is laid out in lands, or otherwise invested on security, the accumulation shall cease at the end of one year from the testator's death, and from that period, the tenant for life shall be entitled to the interest. 6 Ves. 520; 7 Ves. 05; 0 Ves. 528; lb. 520; 2 Sim. & Stu. 306.—13. Where no time of payment is mentioned by the testator, annuities are considered as commencing from the death of the testator; and consequently the first payment will be due at the end of the year from that event; if, therefore, it be not made then, interest, in those cases wherein it is allowed at all, must be computed from that period. 2 Rop. Leg. 240; 5 Binn. 475. See 6 Mass. 37.

§ 4. As to the quantum or amount of interest allowed. 1, During what time; 2, Simple interest; 3, Compound interest; 4, In what cases given beyond the penalty of a bond; 5, When foreign interest is allowed.

First. During what time. 1. In actions for money had and received, interest is allowed in Massachusetts from the time of serving the writ. 1 Mass. 436. On debts payable on demand, interest is payable only from the demand. Addis. 137. See 12 Mass. 4. The words "with interest for the same," bear interest from dale. Addis. 323, 4; 1 Stark. N. P. C. 452; Ibid. 507—2. The mere circumstance of war existing between two nations, is not a sufficient reason for abating interest on debts due by the subjects of one belligerent to another. 1 Peters's C. C. R. 524; but a prohibition of all intercourse with an enemy during war, furnishes a sound reason for the abatement of interest until the return of peace. Ib. See on this subject,

2 Dall. 132; 2 Dall. 102; 4 Dall. 286; 1 Wash. 172; 1 Call, 104;

3 Wash. C. C. R. 306; 8 Serg. 4c Rawle, 103; Post. § 7.

Secondly. Simple interest. 1. Interest upon interest is not allowed except in special cases, 1 Eq. Cas. Ab. 287; Fonbl. Eq. b. 1, c. 2, § 4, note (a); U. S. Dig. tit. Accounts, IV.; and the uniform current of decisions is against it, as being a hard, oppressive exaction, and tending to usury. 1 Johns. Ch. R. 14; Cam. & Norw. Rep. 361.

Thirdly. Compound interest. 1. Where a partner has overdrawn the partnership funds, and refuses, when called upon, to account, to disclose the profits, recourse would be had to compound interest as a substitute for the profits he might reasonably be supposed to have made. 2 Johns. Ch. R. 213.—2. When executors, administrators, or trustees convert the trust money to their own use, or employ it in business or trade, they are chargeable with compound interest. 1 Johns. Ch. R. 620.—3. In an action to recover the annual interest due on a promissory note, interest will be allowed on each year's interest until paid. 2 Mass. 568; 8 Mass. 455. See as to charging compound interest the following cases:

1 Johns. Ch. Rep. 550; Cam. & Norw. 361; 1 Binn. 165; 4 Yeates, •J20; 1 Hen. & Munf. 4; 1 Vin. Abr. 457, tit. Interest, (C); Com. Dig. Chancery, » S 3; 3 Hen. & Munf. 89. An infant's contract to pay interest on interest, afteri it has accrued, will be binding upon him, when it is for his benefit. 1 Eq. Cas. Ab. 286; 1 Atk. 489; 3 Atk. 613; Newl. Contr. 2.

Fourthly. When given beyond the penalty of a bond. 1. It is a general rule that the penalty of a bond limits the amount of the recovery.

2 T. R. 388. But in some cases the interest is recoverable beyond the amount of the penalty. The recovery depends on principles of law, and not on the arbitrary ad libitum discretion of a jury. 3 Caines's Rep. 49.—2. The exceptions are where the bond is to account for moneys to be received; 2 T. R. 388; where the plaintiff is kept out of his money by writs of error; 2 Burr. 1094; 2 Evans's Poth. 101,2; or delayed by injunction, 1 Vern. 349; 16 Vin. Abr. 303; if the recovery of the debt be delayed by the obligor, 6 Ves. 92; 1 Vern. 349; Show. P. C. 15; if extraordinary emoluments are derived from holding the money, 2 Bro. P. C. 251 ; or the bond is taken only as a collateral security, 2 Bro. P. C. 333; or the action be on a judgment recovered on a bond, 1 East, R. 436; see also 4 Day's Cas. 30; 3 Caines's R. 49; 1 Taunt. 218; 1 Mass. 308; Com. Dig. Chancery, 3 S 2; Vin. Abr. Interest, E.—3. But these ex

ceptions do not obtain in the administration of the debtor's assets, where his other creditors might be injured by allowing the bond to be rated beyond the penalty, 5 Ves. 329; see Vin. Abr. Interest, C. pi. 5.

Fifthly. When foreign interest it allowed. 1. The rate of interest allowed by law where the contract is made, may, in general, be recovered; hence where a note was given in China, payable eighteen months after date, without any stipulation respecting interest, the court allowed the Chinese interest of one per cent. per month from the expiration of the eighteen months, 1 Wash. C. C. R. 253 — 2. If a citizen of another state,advance money there for the benefit of a citizen of the state of Massachusetts, which the latter is liable to reimburse, the former shall recover interest, at the rate established by the laws of the place where he lives. 12 Mass. 4. See further, 1 Eq. Cas. Ab. 289; 1 P. Wms. 395; 2 Bro. C. C. 3; 14 Vin. Abr. 460, tit. Interest, (F).

f) 4. How computed.—In casting interest on notes, bonds, &c, upon which partial payments have been made, every payment is to be first applied to keep down the interest, but the interest is never allowed to form a part of the principal, so as to carry interest. 17 Mass. R. 417; 1 Dall. 378.-2. When a partial payment exceeds the amount of interest due when it is made, it is correct to compute the interest to the time of the first payment, add it to the principal, subtract the payment, cast interest on the remainder to the time of the second payment, add it to the remainder, and subtract the second payment, and in like manner from one payment to another, until the time of judgment. 1 Pick. 194; 4 Hen. & Munf 431; 8 Serg. & Rawle, 458; 2 Wash. C. C. R. 167. See 3 Wash. C. C. R. 350; Ibid. 396.—3. Where a partial payment is made before the debt is due, it cannot be apportioned, part to the debt and part to the interest. As if there be a bond for one hundred dollars, payable in one year, and, at the expiration of six months, fifty dollars be paid in. This payment shall not be apportioned part to the principal and part to the interest, but at the end of the year, interest shall be charged on the whole sum, and the obligor shall receive credit for the interest of fifty dollars for six months. 1 Dall. 124.

$ 6. When interest will be barred.—1. When the money due is tendered to the person entitled to it, and he refuses to receive it, the interest ceases. 3 Campb. 296. Vide 8 East, 168; 3 Binn. 295.-2. Where the plaintiff was absent in foreign parts, beyond seas, evidence of that fact may be given in evidence to the jury on the plea of payment, in order to extinguish the interest during such absence. 1 Call, 133. But see 9 Serg. 6c Rawle, 263.-3. Whenever the law prohibits the payment of the principal, interest during the prohibition is not demandable. 2 Dall. 102; 1 Peters's C. C. R. 524. See also 2 Dall. 132; 4 Dall. 286.— 4. If the plaintiff has accepted the principal he cannot recover the interest in a separate action. 1 Esp. N. P.C. 110; 3 Johns. 229. See 14 Wend. 116.

§ 7. Rate of interest allowed by law in the different states.

Alabama. Eight per centum per annum is allowed. Notes not exceeding one dollar bear interest at the rate of one hundred per centum perannum. Some of the bank charters prohibit certain banks from charging more than six per cent. upon bills of exchange; and notes negotiable at the bank, not having more than six months to run; and over six and under nine, not more than seven per

cent.; and over nine months, to charge not more than eight per cent. Aikin's Dig. 236.

Arkansas. Six per centum per annum is the legal rate of interest, but the parties may agree in writing for the payment of interest not exceeding ten per centum per annum, on money due and to become due on any contract, whether under seal or not. Rev. St. c. 80, s. 1, 2. Contracts where a greater amount is reserved are declared to be void. Id. 8. 7, but this provision will not affect an innocent endorsee for a valuable consideration. Id. s. 8.

Connecticut. Six per centum is the amount allowed by law.

Delaware. The legal amount of interest allowed in this state is at the rate of six per centum per annum. Laws of Del. 314.

Georgia. Eight per centum per annum interest is allowed on all liquidated demands. 1 Laws of Geo. 270; 4 Id. 488; Prince's Dig. 294, 295.

Illinois. Six per centum per annum is the legal interest allowed when there is no contract, but by agreement the parties may fix a greater rate. 3 Griff. L. Reg. 423.

Indiana. Six per centum per annum is the rate^fixed by law, (except in Union county,). On the following funds loaned out by the state, namely, Sinking, Surplus, Revenue, Saline and College funds, seven per cent.; on the common school fund, eight per cent. Act of January 31, 1842.

Kentucky. Six per centum per annum is allowed by law. There is no provision in favour of any kind of loan. See Session acts 1818, p. 707.

Louisiana. The Civil Code provides, art. 2895, as follows: Interest is either legal or conventional. Legal interest is fixed at the following rates, to wit: at five percent., on all sums which are the object of a judicial demand, whence this is called judicial interest; and sums discounted by

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