SEC. 13. From and after the surrender of the property of the insolvent debtor, all property of such insolvent shall be fully vested in his assignee or assignees, for the benefit of his creditors, and shall not be liable to be seized, attached, taken or levied on, by virtue of any execution issued against the property of said insolvent, and the assignees who may be appointed shall take possession of and be entitled to claim and recover all the said property, and to administer and sell the same as herein provided. Gen. Laws, 3843.

SEC. 14. The debt of an insolvent bankrupt is due in conscience notwithstanding his discharge, and is a sufficient consideration to. support a subsequent express promise to pay. A verbal promise is sufficient at common law, and there is nothing in our statutes which changes the rule. 8 Cal. 85.

SECTION 1. The only damages which the law allows for the detention of money under its process is the legal interest. The rule of damages in such cases, like the one which obtains in actions upon promissory notes, is a fixed and arbitrary one. The actual loss occasioned may be much greater than the interest, but the consequences beyond that the law does not inquire into. It would indeed often be impossible to determine the actual damages resulting from the detention of money; the party entitled to it may in consequence have been compelled to borrow on ruinous rates of interest; he may have become embarrassed in his business operations, ruined in credit and perhaps driven into

insolvency; but of these possible consequences the courts cannot take notice. The legal interest in such cases is the only measure which can be followed with certainty and, as a general rule, with safety. 12 Cal. 111.

SEC. 2. The law does not tolerate the payment of more than legal interest upon money, except when there is an express written agreement, and a higher rate of interest cannot therefore be proved as a measure of damages. 7 Cal. 148.

SEC. 3. Though interest is, as a general rule, not recoverable except by virtue of statutory regulations, a small rate may be allowed in some cases by way of damages: so held, where a referee, to whom a cause had been referred by consent of parties, had allowed the plaintiff interest at the rate of six per cent. per annum on the balance of an account found due to him. 1 Cal. 422.

Act to Regulate.

SEC. 4. The act to regulate interest on money is in derogation of the common law and must be strictly construed. This rule of construction, applied to the language of the second section, would confine its provisions to contracts fixing the rate of interest. According to the common acceptation, the expression, "rate of interest," has reference to the percentage or amount of interest, and not to the manner of computing. Rate is the price or amount stated or fixed on anything. That it was used in this sense is evident from the fact that it was thought necessary that direct authority for the compounding of interest by contract should be given in a separate section of the act. 11 Cal. 19.

Follows Contract.

SEC. 5. Interest follows a contract, according to the law in existence at the time and place of the contract or of the performance of it. A subsequent change in the legal rate of interest does not affect the contract. It is error to charge six per cent. interest on a contract made before the passage of our statute as to interest, up to the date of the statute, and ten per cent. afterward. 14 Cal. 171.

Who Liable for.

SEC. 6. Where an administrator rejects a legal claim against the estate, and the claimant afterwards sues and recovers judgment therefor, he is entitled to interest from the time of presenting his claim to the administrator. 18 Cal. 376.

SEC. 7. Interest upon interest already due cannot be allowed, except in pursuance of a written engagement of the parties. 11 Cal. 316.

When Recoverable.

SEC. 8. Where the account presented to an administrator for allowance contains no item for interest, and the face of the paper does not show that interest results necessarily from the facts stated as constituting the claim, interest is not recoverable. 14 Cal. 171.

SEC. 9. No judgments at common law carry interest. 2 Cal. 100.

Amount for which Judgment should be Rendered.

SEC. 10. In entering a judgment, the correct rule is to add the interest due on the notes up to the time of the judgment to the principal and enter the judgment for the gross amount, and such judgment is then to bear the same interest as the notes, until paid. The theory of the law is not that the party recovers the particular note or chose in action, as is commonly imagined, but that he recovers damages for the non-performance of the contract; and in case of failure to pay money due, it has always been held that the true measure of damages was the amount of money owing and the interest which was agreed upon. Thus the judgment being ascertained, the statute steps in and regulates whether it shall bear interest and at what rate. 5 Cal. 417.

SEC. 11. Interest upon a note should be calculated at the rate expressed therein from its date to the date of the judgment, and then added to the principal. The amount thus found due makes up the true amount for which judgment should be rendered. 11 Cal. 316.

Computation of.

SEC. 12. Upon a money demand bearing interest, on which have been made partial payments after maturity, the proper method of computing interest, is to apply the payment in the first place to the discharge of the interest then due; if the payment exceeds the interest, the surplus goes towards discharging the principal, and the subsequent interest is to be computed on the balance of the principal remaining. If the payment be less than the interest, the surplus of interest must not be taken to augment the principal, but interest continues on the former principal, until the period when the payments, taken together, exceed the interest due. But where an account has been stated by the plaintiff, charging interest both on the debt and the payments, and rendered to the defendant, and no objection made thereto within a reasonable time, it is the same as an agreement that the interest should be computed accordingly. 3 Cal. 233.

SEC. 13. Where the dealings of the parties extended through a period of more than two years, during which time three or four accounts were rendered by plaintiffs to defendants showing balances, in all of which accounts and throughout the whole of which time the parties pursued the same mode of computing interest, this mode was binding upon them. 3 Cal. 235.

CHAPTER LIX.

INSTRUCTIONS.

SECTION 1. An "instruction" is an exposition by a court to the jury of those principles of law which the latter are bound to apply in order to render such a verdict as will, in the state of the facts proved at the trial to exist, establish the rights of the parties to the suit. The essential idea of an "instruction" is that it is authoritative as an exposition of the law which the jury are bound by their oath and by moral obligations to obey. 31 Barb. (N. Y.) 566.

SEC. 2. An instruction should be a clear and explicit statement of the law applicable to the condition of the facts, and may be accompanied by such comments on the evidence as are necessary to show its application, and may, if carefully done, include an opinion on the weight of evidence, but should not by any form of expression or intendment decide the facts, unless it be in the entire absence of opposing proof. 7 Wend. 160. Erroneous instructions in matters of law which might have influenced the jury in forming a verdict are a cause for a new trial, even on hypothetical questions, on which no opinion can be required to be given, but this rule will not apply when the instructions could not have prejudiced the cause. 11 Wheat. 59; 6 Cal. 264. The above definition and rules are deducible from the laws and decisions which follow:

SEC. 3. Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. Const. Cal. Art. IV, Sec. 17.

SEC. 4. In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict; and if it state the testimony of the case, it shall also inform the jury that they are the exclusive judges of all questions of fact. The court shall furnish to either party at the time, upon request, a statement in writing of the points of law contained in the charge, or shall sign at the time a statement of such points prepared and submitted by the counsel of either party. Pr. Act, 165.

SEC. 5. Instructions should conform to the pleadings and the facts. Instructions in civil and criminal cases should be drawn with reference to the case as made by the evidence. People vs. Roberts, 6 Cal. 214.

SEC. 6. An instruction of the court to the jury must be adapted to the facts of the case. People vs. Honshell, 10 Cal. 83; People vs. Byrnes, 30 Cal. 206.

SEC. 7. An error of the judge in violating article six, section seven, of the constitution would not, under all circumstances, be sufficient cause for reversal. Prima facie, it would be sufficient; but no more importance is to be attached to an error of this nature than any other. If no