his bailiff (q), under a fieri facias (r). And it seems the action may be brought before the return of the fieri facias (s); and without ruling the sheriff to return the writ, or demanding the money (t). But a mere seizure, without a sale of the goods, will not charge the sheriff in an action for money had and received(u). And if after having seized goods under the plaintiff's writ of fieri facias, he sell them, though irregularly, under another process of the court, at the suit and for the benefit of another party, an action as for money had and received cannot be maintained against him by the first plaintiff (v). The proceeds of the sale become money had and received to the use of the party under whose process it was effected (x); though it should seem that a defendant may sue the sheriff for the overplus of a sale by him under an execution, after the sums indorsed on the writ have been paid to the plaintiff (y).

In the case of Balme v. Hutton (≈) it was held in the Exchequer Chamber, in error, that a sheriff, who, under a writ of fieri facias, seizes and sells the goods of a bankrupt, even before the fiat, but after an act of bankruptcy, though without notice thereof, may be made a wrong-doer by relation, so as to be liable for what he so does bonâ fide in his official character, to the assignees in trover, &c.

If the sheriff wrongfully seize and sell the goods of a third person under an execution, the latter may sue him for money had and received; and will make out a primâ facie case by proving merely his, the plaintiff's, possession of the goods at the time

(9) Underhill v. Wilson, 6 Bing. 697; 4 M. & P. 568, S. C. Aliter, where the bailiff acted expressly for and under the directions of the plaintiff himself; Cook v. Palmer, 6 B. & C. 739; Crowder v. Long, 8 B. & C. 598; Tidd, 9th ed. 1019; Higgins v. M'Adam, 3 Y. & J. 1.

(r) 3 Salk. 323; M'Neil v. Perchard, 1 Esp. R. 263.

(s) See Morland v. Pellatt, 8 B. & C. 726, 727, per Bailey, J., and Littledale, J.; sed vide Morland v. Leigh, 1 Stark. R. 388.

(t) Dale v. Birch, 3 Camp. 347; Tidd, 9 ed. 1019. But if the sheriff be sued without any prior demand of the sum levied, the Court will, on application, stay the proceedings against him on payment of that sum, without costs; Jefferies v. Sheppard, 3 B. & Ald. 696.

(u) Thurston v. Mills, 16 East, 274. (v) Thurston v. Mills, 16 East, 254. See Reed v. James, 1 Stark. R. 134. (x) Swain v. Morland, 1 B. & B.

370.

(y) Harrison v. Painter, Exch. Easter Term, 1840, Jurist, 488.

(z) 9 Bing. 471; 3 Moore & S. 1, S. C., reversing the judgment of the Court of Exchequer, 2 C. & J. 19; see however 6 Geo. 4, c. 16, s. 81; 2 & 3 Vic. c. 29; Chit. Arch. 432, 433. As to the principle in case of insolvency under the insolvent act, Groves v. Cowham, 10 Bing. 5. That money had and received lies if there be a wrongful sale, &c.; Nottley v. Buck, 8 B. & C. 165; Groves v. Cowham, per Tindal, C. J. As to the sheriff taking an indemnity, see Young v. Marshall, 8 Bing. 43; 6 M. & P. 110, S. C.

of the seizure. This was the case of Oughton v. Seppings (a). A sheriff's officer had wrongfully seized, under a fi. fa. against A., a horse belonging to B. The horse was sold by the sheriff, and the money paid over to the officer. B. brought an action against the officer for money had and received, to recover the amount. It appeared that the horse had belonged to the plaintiff's husband, but that after his death she had provided for its keep. No letters of administration were produced: yet it was held, that there was sufficient evidence against a wrongdoer, to entitle her to recover in an action for money had and received.

IV. INTEREST.

By the late act for the amendment of the law, 3 & 4 Will. IV. c. 42, s. 28 (b), it is enacted, "that upon all debts or sums certain, payable at a certain time or otherwise, the jury (c), on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest (d), from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument, at a certain time; or if payable otherwise, then from the time when demand of payment shall

(a) 1 B. & Al. 241.

(b) 3 & 4 W. 4, c. 42, s. 28. The 29th section enables a jury upon a trial or inquisition, if they shall think fit, "to give damages in the nature of interest over and above the value of the goods at the time of the conversion and seizure, in trover, or trespass de bonis asportatis; and in actions on policies of assurance made after the act was passed," (i.e. after 14th August, 1833.) The 30th section gives interest on writs of error, from the time execution was delayed, in any personal action. But the Court can under this section allow interest only where the writ of error is tested after the act received the royal assent; Burn v. Carvalho, 4 N. & M. 893; 1 Ad. & E. 895, S. C. Where judgment is given in a Court of Error for the defendant in error, the Court is bound to give interest for the time that execution has been delayed by the writ of error; and semble, at the rate of 41. per cent.; Levy v. Langridge, 4 Mee. & W. 337. A defendant is not liable to pay inter

est accruing between judgment and reversal of outlawry; Ibbotson v. Fenton, 1 Jur. 397.

(c) This section only authorizes the jury to give interest, and a plaintiff had no right to arrest for interest unless expressly reserved by contract; Callum v. Leeson, 2 C. & M. 406; 2 Tyr. 466, S. C.; nor can a judge order the taxation of interest; and, therefore, where in an action on an attorney's bill the plaintiff gave notice claiming interest, but the bill was referred for taxation, without any terms as to interest; it was held, that plaintiff could not afterwards have an assessment of damages for the purpose of recovering interest; Berrington v. Phillips, 1 M. & W. 48. As to the claim of pawnbrokers to interest, see Reg. v. Goodburn, 8 Ad. & E. 508; 3 Nev. & Per. 468; and cases, ante, 475, notes (r), ($).

(d) As to what is legal interest and the laws relating to usury, post, Index, tit. Usury.

have been made in writing, so as such demand shall give notice (d) to the debtor, that interest will be claimed from the date of such demand until the time of payment: provided that interest shall be payable in all cases in which it is now payable by law.”

Upon this salutary provision it may be observed: First, that it does not extend to special actions on contracts, strictly for the recovery of unliquidated damages (e) resulting from the breach of such contracts, and ascertainable only by a jury:-Secondly, that it is discretionary in the jury, whether or not interest shall be allowed, even in the cases specified, it not having been given absolutely :— Thirdly, that they have no discretionary power to award interest, unless there be proof of a written instrument, whereby the debt or sum certain is made payable at a certain time, or of a written demand of the money, comprising a notice that interest will thenceforth be claimed ;-and Fourthly, that the jury have no discretion, and must give interest in all those instances in which it was claimable as a matter of right by law at the time the act was passed.

It will therefore be material to consider the state of the law upon this subject at the time the statute was passed.

The form of the common count for interest is, that the defendant was indebted to the plaintiff in a certain sum, for interest upon and for the forbearance of monies due from the defendant to the plaintiff, and by him forborne to the defendant for a long time, at his request (f).

The general common law rule is, that the law does not imply a contract on the part of a debtor to pay interest on the sum he owes, although the debt may be of a fixed amount, and may have been frequently demanded (g). It is not due, as a matter of right,

(d) The following form may be adopted: “Mr. A. B.—I do hereby demand of you the payment of the debt, amounting to 100, now due from you to me; and take notice that I claim interest on the said debt from this day until the said debt be paid. Dated this 1st day of January, 1840." Signed "C. D."-" Witness, E. F." See also 3 Chit. Gen. Prac. 920.

(c) As, for instance, actions of assumpsit for not repairing or not cultivating premises, or not performing works-for not delivering goods-for discharging a party retained for a fixed period, before such period expired; or against an attorney or bailee for neg

ligence, &c.

(f) A count for interest should be inserted, where it is claimed as a debt; Ashby v. Ashby, 3 M. & P. 186. When the common count suffices; Hicks v. Marcco, 5 C. & P. 498. In debt on a mortgage deed the damages should be laid at a sum sufficient to cover all arrears of interest up to the time of the commencement of the action; see Watkins v. Morgan, 6 C. & P. 661.

(g) De Havilland v. Bowerbank, 1 Camp. 50; De Bernales v. Fuller, 2 id. 426; Walker v. Constable, 1 B. & P. 307; Page v. Newman, 9 B. & C. 378, 380; 4 Man. & Ry. 305.

in the absence of an express stipulation, even in the case of written instruments; unless they be commercial instruments of a negotiable nature, as bills of exchange, &c. (h).

Thus interest is prima facie not claimable on a demand for goods sold, although the price was to have been paid on a certain day (i); or on a balance struck on an account for goods sold (k); or for work and materials (7); or on a debt for money lent to (m), or paid for, the defendant (n); or had and received by him, though fraudulently, for the plaintiff's use (o). Nor is interest necessarily allowed on a guarantee (p), a sum insured, on a ship, &c., or life (q); or in an action on a foreign judgment (7); or on an attorney's bill (s); or upon a deed or covenant for the payment of money, even by instalments (1), unless there be a penalty; or upon a replevin bond (u); or recognizance of bail in the King's Bench (x); or upon a sum due upon a balance of accounts (y). Nor does money deposited in the hands of a banker carry inter

(h) Page v. Newman, 9 B. & C. 378, 380; Foster v. Weston, 6 Bing. 709; 4 M. & P. 589, S.C.

(i) Gordon v. Swain, 12 East, 419; Marshall v. Poole, 13 East, 99; De Bernales v. Fuller, 2 Camp. 428, 429; Culton v. Bragg, 15 East, 225.

(k) Chalie v. Duke of York, 6 Esp. Rep. 45.

(1) James v. Cotton, 7 Bing. 273; 5 Moo. & Pa. 26. See Trelawney v. Thomas, 1 H. Bla. 305; Blaney v. Hendrick, 3 Wil. 205.

(m) Calton v. Bragg, 15 East, 223; Gwyn v. Godby, 4 Taunt. 346; although the money was lent on a written contract to repay it at a time depending on a contingency; Page v. Newman, 4 M. & R. 305; 9 B. & C. 378. (n) Carr v. Edwards, 3 Stark. R.

132.

(0) De Bernales v. Fuller, 2 Camp. 426; Crockford v. Winter, 1 id. 129; De Havilland v. Bowerbank, id. 51; Walker v. Constable, 1 B. & P. 307; Tappenden v. Randall, 2 id. 472; Goodchild v. Fenton, 3 Y. & J. 481; Frühling v. Schroeder, 2 Scott, 143; 2 Bing. N. C. 77; Depcke v. Munn, 3 C. & P. 112. Auctioneer not liable for interest on deposit, ante, 308, note (e). As to vendor's liability, ante, $11. (p) Hare v. Richards, 7 Bing. 254; 5 M. & P. 35, S. C.

(9) Kingston v. M'Intosh, 1 Camp.

518; Higgins v. Sargent, 2 B. & C. 348; 3 Dowl. & R. 613; Bain v. Case, Moo. & M. 262; 3 C. & P. 496, S. C.

(r) Hillhouse v. Davis, 1 M. & Sel. 173. As to interest on a Scotch judg ment, Arnott v. Redfern, 3 Bing. 353; 11 Moure, 209. S. C.; or Irish judg ment, Bann v. Dalzell, 3 C. & P. 376; Moo. & M. 228, S. C. In an action on aJamaica judgment, (Atkinson v. Lord Braybrooke, 4 Camp.380; 1Stark.219, S. C.) Lord Ellenborough would not allow interest, and said the judgment constituted only a simple contract debt. On English judgment whether equity allows interest, Lewes v. Morgan, 3 Y. & J. 391. As to interest in India, see 3 Bing. 193. In the Scotch courts interest is, it seems, allowed; Arnott v. Redfern, 3 Bing. 353; Foster v. Weston, 6 id. 711, 714. See Chitty's Practice, Preface xvii. In France, see Code Civil, Book 3, Tit. 3, sect. 4.

(s) Walker v. Bayley, 2 B. & P. 219. (t) Foster v. Weston, 6 Bing. 709; Higgins v. Sargent, 2 B. & C. 348; 3 D. & R. 613, S. C.

(u) Anonymous, 4 Taunt. 30.
(x) Anonymous, id. 722.

(y) Chalie v. Duke of York, 6 Esp.
45; Bain v. Case, Moo. & M. 262;
3 C. & P. 496, S. C.
When equity

will not allow interest on a balance in the hands of an attorney, Wright v. Southwood, 1 Y. & J. 531.

est in the absence of any agreement expressly providing for its payment (z).

But in some instances the law impliedly gives interest; as upon bills of exchange, and promissory notes, where the claim to it is supported by mercantile usage (a). Thus the acceptor of a bill, and the maker of a note, are respectively liable to pay interest thereon (in the nature of damages (b),) from the time the instrument became due, although interest be not reserved on the face of the instrument, and there be no proof of any demand of payment (c). Where a note is payable on demand, interest is given from the time a demand was made (d); and when no demand has been made, then from the time of issuing the writ (e). Where a bill or note is payable at a future time with interest, such interest runs from the date of the instrument (f). And a promissory note in this form-" July, 1808. I promise, for myself and my executors, to pay A. B. or her executors one year after my death 3007., with legal interest"-carries interest from the date thereof (g). And the drawer or indorser of a bill, or the indorser of a note, is liable to pay interest from the time he receives notice of the dishonour (h). So a check on a banker carries interest, and a rule to compute the principal and interest due thereon will be granted (i). So, if there be a contract to pay a debt by a bill of exchange or promissory note, and the debtor refuse to give it, he is liable (on the common counts for the debt) to pay interest from the time when the instrument, if given, would have become due (j).

But, if the delay of payment of a bill or note has been occasioned by the default of the holder, or the claim has lain dormant

(z) Edwards v. Vere, 5 B. & Ad. 285; 2 Nev. & Man. 120.

(a) Page v. Newman, 9 R. & C. 378; Foster v. Weston, 6 Bing. 709; 4 M. & P. 589, S. C.

(b) Exparte Williams, 1 Rose, Bk. C. 399; Cameron v. Smith, 2 B. & Al. 305; Maberley v. Robins, 5 Taunt. 626; In the Matter of Burgess, 8 id.

660.

(c) Bayl. 5 ed. 348; Chit. Bills, 8 ed.664, 9 ed. 681.

(d) Blaney v. Hendricks, 2 W. Bla.

761.

(e) Pierce v. Fothergill, 2 Bing. N. C. 167; 2 Scott, 334; 1 Hodges, 251, S. C.

(f) Kennerley v. Nash, 1 Stark. R. 452; Hopper v. Richmond, id. 507; Denman v. Dibden, R. & M. 380; Richards v. Richards, 2 B. & Ad. 447. (g) Roffey v. Greenwell, 2 P. & Dav. 365.

(h) Walker v. Barnes, 5 Taunt. 240. (i) Anon. 1 Jurist, 844.

(j) Becker and another v. Jones in note to De Bernales v. Fuller, 2 Camp. 428, note; Marshall v. Poole, 13 East, 98; Slack v. Lowell, S Taunt. 157; Middleton v. Gill, 4 id. 298; Sutton v. Morgan, 5 id. 758; Farr v. Ward, 3 M. & W. 25; 6 Dowl. P. C. 163, S. C.