and funeral expenses had been paid; and a balance, which he had paid in under an order of the Court, had been laid out. For the plaintiff it was moved, that the dividends then accrued due, and there[ *556 ] after to accrue due, on the stock purchased with the balance, might be paid to her. Sir A. Hart said," If an executor admits assets, he does it at his peril; and therefore I shall make the order as prayed,”(h) SECTION XVII. OF INSTANCES, WHERE AN EXECUTOR'S PERSONAL LIABILITY IS NOT IN CURRED. AMONG other acts which may not be a devastavit or that may not draw on an executor personal liability or loss, (i) it appears that, by the decision of, or opinion expressed in, a Court of law, at law a devastavit may not be committed,-and the executor's personal liability or loss may not be incurred, by paying debts by simple contract before a bond debt of which the executor has not notice:(j) by paying a debt now due on bond, in disregard of a statute or recognizance to perform covenants not yet broken, or defeazanced for payment of money at a day yet to come:(k) by an act, which is a devastavit in a co-executor [ *557 ] only:(1) or by preferring, Lord Hardwicke seems to have thought, the (h) 1 Sim. 510. (i) Bereblock v. Read, or Rede v. Bereblock, Cro. Eliz. 734, 822, 2 Brownl. & G. 81, Yelv. 29, 4 Co. 59, b.; Anon. 2 Anders. 157; Anon. Keilw. 51, a., Ca. 5; Eveling v. Leveson, Gouldsb. 115; Britton v. Batthurst, 3 Lev. 113, cited Amb., ed. Blunt, Append. 805.-Gouldsb. 181, 3 Salk. 125, tit. Devastavit, pl. 3. If Britton v. Batthurst is understood, one point decided in it appears to be, that if an executor confesses judgment to a creditor by simple contract, and afterwards discovers a bond creditor, whom he pays, then, as at the time of confession of the judgment the executor had not notice of the bond, the payment of such bond debt before satisfaction of the judgment is not a devastavit. () Vaugh. 94; Fitz-Gib. 78; Britton v. Batthurst, 3 Lev. 115, cited Amb., ed. Blunt, Append. 805; Brooking v. Jennings, 1 Mod. 175; Harman v. Harman, 3 Mod. 115, 2 Show. 492. See the last-mentioned case in Comberb. 35; and see also 1 Barnard. Rep. 186. In Brooking v. Jennings, Vaughan, C. J., expressed an opinion, in which Atkyns, J., and Ellis, J., agreed, that "debts upon simple contracts may be paid before bonds, unless the executors have timely notice given them of those bonds; and that notice must be by action." 1 Mod. 175. This opinion appears to be opposed by the nume rous authorities, which affirm, in general terms, that at law debts by bond are payable before debts by simple contract. 9 Co. 88, b.; Cro. Eliz. 316; 7 Barn. & C. 452. And notwithstanding the considerable opinion referred to, it is believed that, to affect an executor by notice of a bond, it needs not to be by action, and that many kinds of notice will be sufficient for the purpose. 3 Lev. 115; Amb. 162, and, ed. Blunt, Append. 805; 1 Dick. 157. On the other hand, creditors need not demand but by an action, 7 Ves. 193; and it is the business of the executor to find out the creditors. 7 Ves. 193; Wentw. Off. Ex. Ch. 13, 14th ed. p. 305. When, therefore, an executor pays simple contract debts, he must, to avoid personal responsibility, take care both that he is not possessed of any notice of bond debts, and that he pays the simple contract creditors "in a reasonable way," 1 Dick. 157, and is not guilty of laches, or neglect of duty, in his search after creditors by bond. Ibid. Wentw. Off. Ex. Ch. 13, 14th ed. p. 304, 305. (k) Anon. Mo. 752, Jenk. Cent. C. 6, Ca. 94; Harrison's case, 5 Co. 28 b.; Philips v. Echard, Cro. Jac. 8, 35. (1) Hargthorpe v. Milforth, Cro. Eliz. 318.-1 Dick. 157; Wentw. Off. Ex. ch. 13, 14th ed. P. 306. See Champneys v. Browne. 1 Barnes. 323. debt of a subject to a debt due to the king, in case the king's debt is not upon record.(m) And, among other instances.(n) it may be mentioned, that it appears that, by the decision of, or opinion expressed in, a Court of Equity, in equity a devastavit may not be committed, and the executor's personal liability may not be incurred-by paying debts by simple contract before a debt by bond, of which the executor has not notice: or by paying debts by simple contract before a breach of the condition of a bond to perform covenants, and of which bond the executor has not notice: or by paying debts by simple contract after a breach of the condition of a bond to perform covenants, and of which bond the executor has not notice: or by paying debts by simple contract before a breach of the condition of a bond to perform covenants, and of which bond the executor has notice.(0) SECTION XVIII. OF A CLAUSE OF INDEMNITY IN A WILL. A WILL frequently contains a declaration purporting to be an indemnity to the executors or trustees named in the will, against *los[ *558 ] ses that may happen to the trust estate. And it appears that where a clause of this kind is omitted in a will, it is taken to be implied in, or is infused into, by the Court of Chancery.(p) And it may perhaps be considered, that executors or trustees are not more indemnified by the usual express clause of indemnity, than they are by the Courts of Equity, although this clause is wholly left out of the will.(g) Where there is not fraud or a breach of trust, trustees and executors appear to be in every case anxiously protected by the Courts of Equity.(r) Generally speaking, the express declaration of indemnity contained in a will is not meant to be a defence against an act, which, in the consideration of a Court of Equity, amounts to fraud or a breach of trust.(s) And it is certain that executors or trustees may, in many cases, be responsible for a loss occasioned to the estate entrusted to them, notwithstanding a clause of indemnity inserted in the will. (t) Responsibility n. (m) Otway v. Ramsay, 4 Barn. & C. 416, See, however, Parker Rep. 101. (n) Gibbs v. Herring, Prec. Ch. 49; Blue v. Marshall, 3 P. W. 381; Orr v. Newton, 2 Cox, 274; Langford v. Gascoyne, 11 Ves. 333, 336, as to the executor Lambert; Turner v. Turner, 1 Jac. & W. 39, 44. (0) Hawkins v. Day, Amb. 160, and, ed. Blunt, Append. 803, 1 Dick. 155, 3 Meriv. 555, n. This case contradicts Greenwood v. Brudnish, Prec. Ch. 534. (p) 18 Ves. 254; 2 Atk. 126. (q) 2 Atk. 126; 3 Atk. 444, 584; Amb. 219; 1 Dick. 126; 8 Ves. 8; 18 Ves. 254. (r) Crookshanks v. Turner, 7 Bro P. C. ed. Toml. 255; Allen v. Hancorn, ib. 375; Blue v. Marshall, 3 P. W. 381; Anon. 12 Mod. 560; Jackson v. Jackson, 1 Atk. 513, 1 West Cas. T. Hardw. 31; Bruere v. (s) Hide v. Haywood, 2 Atk. 126; Muck- for losses has accordingly been incurred,-in the instance of a loan of trust-money, although the will declared that the trustees "should not be answerable for any loss which might happen, without their wilful neglect or default:"(u) and in the instance of concurring in a sale, joining in a receipt for the purchase-money, and permitting a co-trustee to retain the money; although the instrument, which created the trust, declared that the trustees "should not be chargeable with, or accountable for, any more of the trust-monies, than he or they should actually receive, nor with or for any loss which should happen of [ *559 ] the same monies, or any part thereof; so as such loss happened without his or their wilful default; nor the one for the other of them, but each of them only for his own acts, deeds, receipts, disbursements, and defaults:"(v) and in the instance of allowing certain purchase-money to be received and retained by a co-trustee; and of a loss occasioned by trustees, through their omission to re-invest certain stock immediately, which had been sold, and the produce for some time placed in the hands of their bankers; notwithstanding the will contained a proviso, that "the trustee or trustees should not be answerable or accountable for any trust-money, further than each person for what he should actually receive, and not the one for the other or others of them, or for the acts, receipts, or defaults of the other or others of them; but each person for his own acts, receipts, and defaults only; and not for any involuntary loss whatsoever:"(w) and in instances of joining in a sale of stock, although the will declared, in one case, that the executors and trustees "should be indemnified from all costs and charges in and about the execution of the will;"(x) and, in another case, that "the trustees and executors respectively should be answerable only for such monies as they should respectively receive, and should not be answerable or accountable for the acts, receipts, or defaults of each other, or for any loss, misfortune, or damage, which might happen in the execution of the will, except the same should happen through their wilful default respectively."(y) *CHAPTER XXXIX. OF INTEREST ON DEBTS. SECT. I. Of Allowing Interest in a Court of Law. [ *560 ] SECTION 1. OF ALLOWING INTEREST IN A COURT OF LAW.(a) AT law, interest is payable on a debt, in cases where there is a con (u) Langston v. Ollivant, Cooper, 33. (v) Brice v. Stokes, 11 Ves. 319. () Bone v. Cook, M'Clel. 168, 316, c., 13 Price, 332. VOL. VIII.-2 K (x) Chambers v. Minchin, 7 Ves. 186. (y) Underwood v. Stevens, 1 Meriv. 712. (a) Generally on this subject, see, besides the authorities after referred to, Orr v. Church tract, express or implied, to pay interest. (b) Also, under especial circumstances, interest is, in the shape of damages, allowed by a Court of Law, when a debt is detained from the creditor. (c) An agreement to pay interest may be implied in a contract, from the nature of the security given to pay the debt;(d) or from the usage of the trade, to which the contract relates; (e) or from some dealings between the debtor and creditor.(f) If the security given is a bill of exchange, then, because it is the usage of trade to pay interest on this [ *561 ] mercantile security, a contract to pay interest is implied from that usage.(g) Except under particular circumstances, (h) a bill of exchange carries interest from the time when it becomes due.(i) And when, in a promissory note, the promise is to pay the debt on a day certain, the note carries interest from that day.(j) And when, in such a note, the promise is to pay the debt on demand, it appears the note carries interest from the time of the demand made.(k) If, in a bill of exchange, or promissory note, it is expressed that the bill or note is to carry interest, then, after the principal money is due, the interest is a part of the debt.(1) But when interest is payable on a bill of exchange, or promissory note, which does not mention interest, in this case the interest is not a part of the debt. (m) It is only damages for the detention of the debt. (n) To give these damages it is the province of a jury;(0) but the creditor is not, it appears, subject to their caprice,(p) and is entitled to their verdict for interest as damages,(q) except in a peculiar or extraordinary case, where such interest may be properly withheld.(r)" Although by the usages of trade," it is observed by Bayley, J., "interest is allowed on a bill, yet it *constitutes no part [ *562 ] of the debt, but is in the nature of damages, which must go 11, 1 Hen. Bl. 227; Trelawney_v. Thomas, ib. 303; Dixon v. Parkes, 1 Espin. 110; Shipley v. Hammond, 5 Espin. 114; Kingston v. M'Intosh, 1 Campb. 518; Beecher v. Jones, 2 Campb. 428, n.; Dawes v. Pinner, ib. 486, n.; Gantt v. Mackenzie, 3 Campb. 51; Ilarrison v. Dickson, ib. 52, n.; Dent v. Dunn, ib, 296; Hellier v. Franklin, 1 Stark. 291; Moore v. Voughton, ib. 487. (b) 15 East, 229; 2 Barn. & C. 349. (c) Hilhouse v. Davis, 1 M. & Sel. 169; Arnott v. Redfern, 3 Bing. 353, cited 4 Man. & Ryl. 809.-3 Camb. 297; 7 Taunt. 595; 8 Taunt. 54, 55. See also Sweatland v. Squire, 2 Salk. 623. 249; 5 Ves. 803; 17 Ves. 28, 29; Laing v. Stone, 2 Mann. & Ryl. 561. (k) Upton v. Lord Ferrers, 5 Ves. 801, 803; Hacknott v. Webber, stated in Adams v. Gale, 2 Atk. 106.-2 W. Bl. 761; 17 Ves. 28, 29. See 6 Mod. 138. (1) 2 Barn. & Ald. 309; 2 Barn. & C. 352. See also 1 Atk. 151, and 2 Barn. & Ald. 307, 308. (m) 2 Barn. & Ald. 308, 309; 1 Dowl. & Ryl. 19; 2 Mann. & Ryl. 562. See 2 Barn. & C. 352. As the interest is not a part of the debt, it cannot be added to the principal, so as to make a good petitioning creditor's debt, on which to ground a commission of bankruptcy. Burgess's case, 8 Taunt. 660. Cameron v. Smith, 2 Barn. & Ald. 305. (n) 1 Atk. 151; 2 Barn. & Ald. 307, 308, 309; 1 Dowl. & Ryl. 17, 19, 20; 5 Ves. 803; 1 Rose, 401, 402. (0) 1 Dowl. & Ryl. 17, 19; 2 Barn. & Ald. 308. (p) 2 Mann. & Ryl. 562, 563. (9) Laing v. Stone, 2 Mann. & Ryl. 561. -3 Ves. 134, 135. (r) Du Belloix v. Lord Waterpa k, 1 Dowl. & Ryl. 16.-2 Barn. & Ald. 308; 2 Mann. & Ryl. 563. to the jury, in order that they may find the amount; and it is competent for them either to allow five per cent., or four per cent., according to their judgment of the value of money, or they may even allow nothing, in case they are of opinion that the delay of payment has been occasioned by the default of the holder."(s) A general rule is now firmly established, that, in a Court of Law, interest is not allowed on a debt, as a book-debt,(t) or shop-debt, (u) or money lent, (v) or money owing for goods sold,(w) or money sued for by an action for money had and received, (x) unless it is payable by a contract express, or that may be implied from some cause, as the usage of trade, or the dealings between the parties. (y) This general rule is fully expressed in the following opinions, delivered on the Bench:-" It is now established as a general principle, that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay interest, or where such promise is to be implied from the usage of trade, or other circumstances."(z) "The general rule is, that interest is not due by law for money lent; unless, from the usage of trade, or the dealings between the parties, a contract for interest is to be implied."(a) "It is clearly established by the later authorities, that, unless interest be payable by the consent of the parties, express, or implied from the usage of trade (as in the case of bills of exchange,) or other circumstances, it is not due by common law."(b) [ *563 ] Under the general rule mentioned, a debt may not carry interest, although it is contracted in writing, and this contract makes it payable at a day certain, as at six months; (c) or is secured by a deed, as a single bond, which does not mention the time of payment,(d) or which does mention it, and makes the debt payable at a day certain, namely, by instalments, at three, five, and seven months from the date; (e) or is secured by a deed of covenant, under which the debt becomes payable at a day certain;(ƒ) or although the debt is rent, which is reserved payable on a day certain.(g) But It has been mentioned,(h) that, under especial circumstances, a Court of Law allows interest, when a debt is detained from the creditor. with respect to allowing interest by reason of detention, there appears to be a difference of opinion, which makes it difficult to collect any definite rule on the subject. Lord Mansfield has held, "that though, by the common law, book-debts do not of course carry interest, it may be payable (8) 2 Barn. & Ald. 308. 467.-15 East, 227. See Anon. cited by (t) Doug. 361, 4th ed. 376; 15 East, Lawrence, J., 3 Taunt. 159, and by Gibbs, 227; 1 Campb. 51, 519. C. J., 6 Taunt. 117. (u) 3 Ves. 135. (v) Calton v. Bragg, 15 East, 223; Shaw v. Picton, 4 Barn. & C. 715, 723.-3 Campb. 259; 2 Barn. & C. 350, 351; 9 Barn. & C. 380; 4 Mann. and Ryl. 307. (w) Vernon v. Cholmondeley, Bunb. 119; Pinock v. Willett, Barnes, 3rd ed. 228; Gordon v. Swan, 12 East, 419.-2 W. Bl. 761; 3 Wils. 206; 13 East, 99; 15 East, 227, 229; 7 Taunt. 595; 1 Campb. 51; 2 Campb. 473 See Mountford v. Willes, 2 Bos. and P. 337, cited 2 Campb. 430, n. (x) Walker v. Constable, I Bos, and P. 306; Tappenden v. Randall, 2 Bos. and P. (y) Doug. 361, 4th ed. 376; 15 East, 226, 229; 9 Barn and C. 381; 4 Mann. and Ryl. 308; 3 Bing. 359. (z) By Abbott, C. J., 2 Barn and C. 349. (a) By Abbott, C. J., 4 Barn. and C. 723. (b) By Holroyd, J., 2 Barn. and C. 351, (c) Gordon v. Swan, 2 Campb. 429, n. 12 East, 419. (d) Hogan v. Page, 1 Bos. and P. 337. (g) 15 East, 225; 6 Bing. 714 |