money,

1st. The principal a part, then only the residue can be recovered against the drawer'. This rule, permitting the holder of a bill, &c. to recover more than is due to himself, only applies where there is some other person entitled to receive from the defendant the overplus of what is due to the plaintiff, and if there be no such person, the plaintiff will be permitted only to recover what is due to himself. But in case of bankruptcy, the holder may prove the whole amount under a commission against a remote party, and receive a dividend until his debt is satisfied, though he cannot prove for more than the sum actually due on the balance of account against his immediate indorser. We have, in the preceding chapter, seen, that a partial failure of consideration cannot be given in evidence to reduce the damages, though the total failure is an answer to the action*.

When a bill or note is payable by instalments, and it contains a clause, that on failure of payment of any one instalment, the whole shall become due, the holder is entitled to recover the whole amount of the sum for which it was given: but where the instrument does not contain such a clause, it is doubtful on the authorities, whether the holder can legally take a verdict for more than the instalment due. According to the case of Beckwith against Nott', and several other cases cited by Lord Loughborough in giving the opinion of the Court in the case of Rudder v. Price, the plaintiff is entitled to the whole sum for which the note was given; but according to other cases, and particularly that of Ashford v. Hand7, the plaintiff is only entitled to the in

'Walwyn v. St. Quintin, 1 Bos. & Pul. 658.-Johnson v. Kennion, 2 Wils. 262. and see the same rule in proof in bankruptcy, ex parte De Tastet, 1 Rose, 10.

Pierson v. Dunlop, Cowp. 571.-Steel v. Bradfield, 4 Taunt. 227. 3 Ex parte Bloxham, 6 Ves. 449. 600. S. C.-Acc. 5 Ves. 448.— Cullen, 97. n. 35.-Ex parte Leers, 6 Ves. 644. contra, post.

4

Ante, 526. quære ante, 92.

3 Beckwith. Nott, Cro. Jac. 505.-Jenk. $33. S. C.

Rudder v. Price, 1 Hen. Bla. 551.

"Ashford v. Hand, Andr. 370.-Robinson v. Bland, 2 Burr. 1085.

inoney.

stalment due at the time of commencing the action. 1st. The principal When at the time of the trial, nearly all the instalments are due, the jury will frequently, for the sake of avoiding another action, give the whole sum in damages. If the plaintiff take a verdict for more than he is entitled to recover, the court will either make him correct the verdict, and pay the costs occasioned by his misconduct, or grant a new trial'.

When interest is made payable by the bill, &c. itself, 2dly. Interest. there is no doubt of its being recoverable; and it is also recoverable from the acceptor of a bill, and the maker of a promissory note payable at a certain time after date or sight from the day on which they became due, without proof of any demand, or if payable on demand from the time of the demand. Interest is computed and given at law as well as in equity upon bills of exchange from the time they became due, in the nature of damages, not strictly as interest; and for breach of contract not in pursuance of it. But in case of bankruptcy, although there be a surplus, bills do not carry interest unless the previous dealings between the parties afforded evidence of a contract to pay interest. But the drawer or indorser of a bill of exchange, or the indorser of a note is only liable pay interest from the time he receives notice of the dishonour, and not even then in the case of an inland bill, unless it has been protested for non-payment 7;

to

Bacon v. Scarles, 1 Hen. Bla. 88.-Pierson v. Dunlop, Cowp. 571. Bayl. 90. acc.-Johnson v. Kennion, 2 Wils. 262. semb. contra.

3 Ves. jun. 134.—5 Ves. jun. 803.-Lithgow v. Lyon and others, 1 Cowp. Ch. Ca 29.-Lowndes v. Collens, 17 Ves. jun. 27.

Upton v. Lord Ferrers, 5 Ves. jun. 801.-Farquhar v. Morris, 7T. R. 124. Blaney v. Hendrick, 2 Bla. Rep. 761.-3 Wils. 205. S. C. Vernon v. Cholmondeley, Bunb. 119.-Frith v. Leroux, 2 T. R. 58.—Marius, 13.-Cotten v. Horsemanden, Prac. Reg. 357.3 and see the cases and law in De Haviland v. Bowerbank, 1 Campb. 50 to 53.-Porter v. Palsgrave, 2 Campb. 473.—3 Ves. jun. 134, 5. + Ex parte Williams, 1 Rose, 399, and Ex parte Cocks, id. 317.→ Lowndes v. Collens, 17 Ves. jun. 27.-Lithgow v. Lyon, 1 Cowp. Ch. Ca. 29.

s Id. ibid.

6 Walker v. Barnes, 5 Taunt. 240.-1 Marsh. 36, S. C. 'Ante, 282. 398. 517.-1 Atk. 611.-2 Bridgm. 599.

2dly. Interest.

and where the maker of a promissory note paid mo ney into the hands of an agent to retire it, and the agent tendered the money to the holder on condition of having it delivered up, and the note being mislaid, that condition was not complied with, and the agent afterwards became bankrupt with the money in his hands; it was held, that though the maker was still responsible for the amount of the note, he was relieved from payment of interest'; and when goods are sold to be paid for by a bill of exchange, and the purchaser neglects to give the bill, the vendor is entitled to interest from the time when the bill, if given, would have become due; and the interest may, in that case, be recovered under the common count for goods sold; and this doctrine applies to any case where there is a contract to pay by a bill *.

But interest is not recoverable on a debt for goods sold, even on limited credit, or for work and labour', or for money had and received, or lent, unless there was a course of dealing allowing it', unless it can be proved that the defendant made use of the money, and did not merely withhold it.

In some cases it is said, that interest is payable from the date of the note, as where it appears on the face

'Dent v. Dunn, 2 Campb. 296.

2 Middleton v. Gill, 4 Taunt. 298, 9.-Lowndes v. Collens, 17 Ves. jun. 27.-Porter v. Palsgrave, 2 Campb. 472.-Boyce v. Warburton, 2 Campb. 480. 428.

3 Manhall v. Poole, 13 East. 98. but see Slack v. Lowell, 3 Taunt. 157.

Furlonge v. Rucker, 4 Taunt. 250.

5 Gordon v. Swan, 12 East. 419.-2 Campb. 429.; but see Mountford v. Willes, 2 Bos. & Pul. 337.-Blaney v. Hendrick, 3 Wils. 205. 2 Bla. Rep. 761. S. C.—Trelawney z. Thomas, 1 Hen. Bla. 305.—De Haviland v. Bowerbank, 1 Campb. 51.

6 Trelawney v. Thomas, 1 Hen. Bla. 305.-Blaney v. Hendrick, 3 Wils. 205.-2 Bla. Rep. 761. S. C.-De Haviland. Bowerbank, 1 Campb. 51.

7

8

Calton v. Bragg, 15 East. 223.-Ex parte Williams, 1 Rose, $99. Denton v. Rodie, 3 Campb. 496.-Gwyn v. Godby, 4 Taunt. 346. Thompson v. Morgan, 3 Campb. 102.-Walker v. Constable, 1 Bos. & Pul. 306.-De Haviland v. Bowerbank, 1 Campb. 50.— Crockford, Winter, id. 129.-De Bernales v. Fuller, 2 Campb. 426.

of it to have been given for money lent'; or is pay- 2dly. Interest. able with interest. Bankers cannot charge interest upon interest without an express contract for that purpose 3.

Under particulars of demand, stating that the action was brought to recover the amount of a note of hand, it was holden, that interest on it is recoverable, and that when a note is payable by instalments, and on failure of payment of any instalment, the whole is to become due, the interest is to be calculated on the whole sum remaining unpaid on default of any instalment, and not on the respective instalments, at the respective times, when they would become payable.

With respect to the time when interest stops, Lord Mansfield declared, that the general practice of the associates, in taking damages in cases where the debt carried interest, was to stop at the commencement of the action; which practice was not founded in law, but in mistake and misapprehension; and that. in point of justice, interest should be carried down quite to the actual payment of the money; but as that cannot be, it should be carried down to the time when the demand is completely liquidated, by the judgment being signed, by which means complete justice is done to the plaintiff, and the temptation to a defendant to make use of all the unjust dilatories of chicane, is taken away for if interest were to stop at the commencement of the suit, when the sum is large, the defendant might gain by protracting the cause in the most expensive and vexatious manner. In trover for bills of exchange, interest, from the date of the final judgment upon all such bills as had been received before the judgment, and upon all such as had

■ Cotton v. Horsemanden, Prac. Reg. 357.-Bayl. 158.

2

Kennerly v. Nash, 1 Stark. 452.

3 Dawes v. Pinner, 2 Campb. 486, in note, ante, n. 110. But sce Bruce v. Hunter, 3 Campb. 467.

* Blake v. Lawrence, 4 Esp. Rep. 147.

5 In Robinson against Bland, 2 Burr. 1085. Randolph v. Reginder, Prac. Reg. 357.

2dly. Interest.

been received afterwards from the time of the receipt was allowed in the exchequer chamber'; but it has been recently determined, that in trover for bills, interest cannot be recovered after the time of the demand and refusal to deliver them up. So we have seen, that after a tender and a wrongful refusal to deliver up a bill, the interest thereon ceases to run '.

The rate of interest allowed in this country is £5 per cent. per annum, as well in courts of equity as

at law 4.

In an action against the drawer of a foreign bill of exchange dishonoured here by non-acceptance, where the plaintiff is allowed a per centage as of £10 per cent. in name of damages, he is only entitled to interest from the day the bill ought to have been paid, but where there is no such allowance for damages, the plaintiff is entitled to interest from the day the bill was dishonoured for non-acceptance. And in a late case, upon a bill drawn in Bermuda, on England, which ought to have been paid in England, the plaintiff recovered 7 interest, being the rate of interest at Bermuda ".

* Ante, 538.

4 Upton. Lord Ferrers, 5 Ves. jun. 803.-Ante, 416. n.

Ganit v. Mackensie, 3 Campb. 51. This was an action on a bill of exchange for £1000, drawn at Barbadoes, the 8th of February, 1809, by the defendant, on Scott, Idles, and Co. in London, payable to the plaintiff at sixty days sight. The bill was refused acceptance on the 17th April, 1809, and was afterwards presented for payment on the 19th June following, and again dishonoured. The only question was, from what period interest was to be calculated. Lord Ellenborough left this upon the custom of merchants to the special jury, who said the holder of the bill was entitled to £10 per cent, as damages, and that interest was to be allowed only from the time when the bill was presented for payment; and Mr. Waddington, the foreman, observed, that he had known it to be so settled in a case befors Mr. Justice Buller. Verdict accordingly. But in a case of Harrison v. Dickson, tried at the same sittings, which was an action against the indorser of bill of exchange, drawn upon England from New South Wales, the plaintiff did not claim any per centage, upon the principal as damages, and was allowed interest from the time the bill was dishonoured for non-acceptance.

Dougan v. Banks, N.P. sittings after Mich. T. 57 Geo. 3. Dec. 12. Pocock, attorney..