if the defendant have not appeared, or his attorney be unknown, the notice fhall be delivered to the defendant himfelf, or left at his laft place of abode. Sayer Rep. 133.

16. Where the plaintiff, upon any pleading of the defendant, tenders an iffue, and the paper-book is made up and delivered, with notice of trial, and the defendant ftrikes out the fimiliter and returns the book with a demurrer, if judgment be given thereon for the plaintiff, the defendant's attorney fhall be obliged to accept of notice of executing the writ from the time of giving the notice of trial. R. H. 8 G. 1.

אן.

At what Time 7Vin. 314.

or Place, and what must be proved then.

1. IN an action on a policy on a foreign fhip, where there is a ftipulation that the policy fhall be fufficient proof of interest, if there is judgment by default, the plaintiff on the writ of inquiry needs only to prove the defendant's subscription to the policy, without giving any evidence of intereft. Thellufon v. Fletcher, 1 Dougl. 314.

2. If a writ of inquiry iffues upon confeffion of the action, in trefpafs for taking goods, the plaintiff need not prove the property of the goods, but only the value. 2 Dougl. 510.

3. In an action on an agreement for goods at a fale, and judgment by default, the defendant fhall not, on a writ of inquiry, be allowed to go into evidence of fraud on the fale; for by fuffering judgment to go by default, he admits the agreement as fet out by the plaintiff, and the writ of inquiry is only to fettle the quantum of damages. Eaft India Company v. Glover, 1 Stra.

612.

4. Execution of a writ of inquiry may be adjourned after it is entered upon. Coleman v. Mawbey, 2 Stra. 853.

5. Writ of inquiry may be executed, on due notice, before the fheriff, or his deputy. 2 Wif. 379. Or by leave of the court, under fpecial circumftances, before the Chief Justice. 1 Stra. 512.

6. But unless fome matter of law is likely to arife in the course of the inquiry, the court will not give leave to have it executed before a judge merely on account of the importance of the facts. Boddington v. Boddington, E. 37 G. 3. But vide 2 Sel. 12.

[G]

14 Vin. 445.

Inrolment.

(G) Pleadings.

1. BY ftat. 10 Ann. c. 18. f. 3., and 8 Geo. 2. c. 6. f. 21., where an indenture of bargain and fale inrolled is pleaded with a profert in curia, the party may fhew forth a copy of the inro!ment; and fuch copy, examined with the inrolment and figned by the proper officer, and proved on oath to be a true copy, thall be of the fame effect as the original.

2. On a provifo in a duchy leafe, that it fhall be inrolled with the auditor, the certificate of the auditor on the margin is fufficient evidence of the inrolment. Kinnerfley v. Thorpe, 1 Dougl. 56.

3. If a deed be inrolled and loft, and the clerk of the affize makes out copy of the inrolment only; this is no evidence without proving it examined; becaufe the clerk is entrusted to authenticate the deed itself by inrolment, and not to give out copies of the inrolment of that deed. Gilb. Law of Evid. p. 26, Lofft's ed.

Vide tit. Bargain and Sale, &c,

[B] 14 Vin. 417.

[F]

Infant.

See poft, tit. Time.

Interest.

14 Vin-457 (C) Intereft Money. Allowable in what Cafes, other than Legacies, Mortgages, and Portions.

I.

A. Being indebted to B. in 800l. on a stated account, entered into articles for the payment of this debt by inftalments of 50l. per ann. A. afterwards, by deed, created a term of years for the payment of his debts, out of the rents and profits of

the

the estate, but not by fale or mortgage, only two of these instal ments being paid, a bill was brought for recovering the reft: and on a queftion, Whether they carried intereft? it was held they did. B. P. Cafes, 7 vol. 164. 1734. Countefs Kildare v. Hopfen.

2. Though by deed 51. per cent. was to be allowed, yet as it appeared that the money had been placed out on Government fecurities, yielding 41. per cent. only, the Court reduced the intereft to that rate. 3 P. Wms. 228. Mich. 1733. Lechmere v. Earl of Carlife.

3. In a poor caufe, to fave expence, and where the matter is clear, the court has referred it to the Regifter, instead of a Mafter, to compute interest or arrears of rent. 3 P. Wms. 258. Eaft. 1734. Holder v. Chambury.

4. Tenant for life pays one third of the intereft on debts and legacies, the reverfioner two thirds. 1 Atk. 467. Feb. 1736. Partridge v. Pawlet.

5. A debtor left a creditor by note on demand, his executor: the court will not allow him intereft for it, because he may turn the money to his advantage, which is coming in from the aflets, 2 Atk. 105. Dec. 1740. Adams v. Gale.

6. There is no certain rule as to giving intereft upon arrears of an annuity; the most frequent inftances are where the annuity was meant as bread for the wife or child. 2 Atk. 211. July 1741. Drapers' Company v. Davis.

7. Where an annuitant has entered, and is in poffeffion of the eftate charged with the annuity, the court will not oblige him to quit the poffeffion, till the grantor allows him intereft for the arrears of his annuity. 2 Atk. 411. 07. 1742. Sir John Robinfon v. Cumming.

8. The court had decreed an account against the defendant of the affets of her husband, as his adminiftratrix: fhe took all his goods and flock in trade, and carried on the fame bufinefs: the Mafter reported 1400/. due to the plaintiffs upon the balance of accounts, and the court thought the fhould not be charged with intereft on the fum of 1400/., as it was only a demand by fimple contract, and he had not then fold the goods, her only fund for raising money. 2 Atk. 439. Nov. 1742. Ryves v. Coleman.

And though there be no express refervation of intereft in the decree, yet there is a difcretionary power to allow it on special circumftances. Ibid.

9. If an executor places out affets which are fpecifically deviled, the court will oblige him to account for the intereft he may have made of thofe affets; but there never was a cafe where the Mafter was directed to charge intereft upon an executor, who made ufe of affets come to his hands in the way of his trade. 2 Atk. 603. June 1743. Sir Cafar Child v. Gibson.

10. Bill for the arrear of an annuity of 30l. fecured by bond in the penalty of 5col.: an account was decreed of the rs due fince the year 1741, and intereft at 41. per cent, to de puted at the end of each half year. As this was given o

n

of

It is not a

that a pur

of maintenance, and a bond to fecure it, the plaintiff is clearly entitled to intereft. 3 Atk. 579. Nov. 1747. Newman v. Auling.

11. The advantage a purchafer receives from the wearing out general rule, of lives is not a reafon for his paying intereft for the purchasemoney; but where lives drop after a purchaser is reported the eftares under beft purchafer, he has been directed to make a compenfation in refpect of the estate being bettered. 3 Atk. 636. April 1748. Blount v. Blount.

chafer of

a private agreement

or a decree

for a fale, fhall pay intereft, from the time of poffeffion; and the court, in awarding interest, never regards the execution of articles for a purchafe, but the time of the execution of the conveyances; and even then the purchaser shall pay intereft only from the time the poffeffion was delivered. Ibid.

12. A decree for the fale of an eftate in mortgage. The Mafter's report ftated a certain fum due to the mortgagee for principal and intereft; the report was confirmed. The mortgage was at five per cent.; but as there was another mortgage and creditors befides, from the time of the report confirmed, it was to carry 41. per cent. intereft only; but this feems to have been done by confent, 3 Atk. 722. Feb. 1750. Harris v. Harris.

13. Where a contract is made in England for a mortgage of a plantation in the Weft Indies, no more than legal intereft fhall be paid on fuch mortgage. 3 Atk. 727. March 1750. Stapleton v. Conway. Vefs. 427. S. C.

14. Where there is a debt by covenant in marriage articles, and no mention of intereft, the court will not reduce it lower than 51. per cent. 1 Vef. 99. June 1748. Swynfen v. Scawen.

15. 1600l. being the balance of debts due to the partnership at the time of the bankruptcy received by Stephens, or Rowles his executor, the executor was held anfwerable for the intereft in the fame manner as on the other fums, which were part of the part nerfhip stock; for the debts are part of the stock; and therefore there is as much reafon, that when the money was got in, he fhould be charged with the like value as in the stock in trade. 1 Vef. 375. Feb. 1749-50. Ryall v. Rowles.

16. Sufannah Brown, by deed poll, depofited in the hands of the defendant 400/., which was to be for the ufe of the plaintiff, her grandfon, if he fhould not be fufficiently provided for during his minority by his trustees, in fuch manner as the defendant pleafed; with a claufe that the defendant, his executors or adminiftrators, fhould not be chargeable with intereft. The plaintiff, now of age, by his bill prayed that the defendant might account for the intereft of the 400l.: it appeared that 200, part of the 400, was the plaintiff's own money, which had been recovered in a caufe wherein the defendant had acted as folicitor for Sufannah Brown, and in the decree there was a particular direction for placing out the eflate, part of which this was, at intereft for the benefit of the infant, the plaintiff. And the court ordered the defendant to pay interest upon that part of the money, which he must have known to be truft-money, viz. the fum of 200l. recovered as aforefaid. 1 Vef. 407. March 1749-50. Brown v. Pring.

17. Interest

17. Intereft was allowed on the accumulated fum reported due, being a debt under a will; but, it would have been directed on the principal fum only, had it refted on the report alone. And it was faid by Lord Hardwicke Chan., that intereft by the course of the court was difcretionary, and computed at 51. per cent. krom the 12th of Ann. on the fum turned into principal by the courfe of the court; but fix per cent. on the principal fum due by covenant. 1 Vef. 496. June 30, 1750. Afley v. Powis.

18. Intereft, if generally decreed, is to be conftrued legal; but ftill by the nature of the fund: and if out of land, or money confidered as land, is reduced to 41. per cent. 2 Vef. 239. 1750-1. Denton v. Shellard.

19. Interest decreed on banker's notes, on circumftances, though there was no evidence of an agreement for it; but, it only appearing that two daughters having money advanced them by their mother, came to the banker's fhp and demanded the money, that notes were given them for the fame, and intereft for fome time paid at 41. per cent. viz. for four years. 2 Vef. 255. April 30, 1751. Jacomb v. Harawood.

20. A truft-term created by deed for payment of debts and legacies; fimple contract debis do not carry interest: fo if by will, but otherwife if by deed, in the nature of a fpecialty. 2 Vef. 363. July 1751. Barwell v. Parker.

21. A fcrivener or attorney is bound to place out money received for that purpose, for which he gives a note, and is not difcharged from intereft, unless the client or employer accepts the fecurity upon which the money is placed, and accepts the intereft thereon; but if the fcrivener or attorney does not place out the mcrey, or if he does, and does not deliver over the fecurity and declare the truft for his client, he is anfwerable for it himself, and for the intereft too. Ibid.

22. Intereft is not commonly referved under general directions, unless after a trial at law. 2 Vef. 47c. July 1752. Champ v. Mood.

23. Interest computed on cofts. 2 Vef. 471. July 1752. Bickham v. Crofs.

24. Leffor covenants for quiet enjoyment, and devises his real eftates in trust to pay debts; the lefice is evicted, and recovers against the executors of the leffor, and aligns the judgment; this is a debt by fpecialty, and the affignees of the judgment are entitled to intereft. But on a charge by will for payment of debts, fimple contract debts do not carry intereft. 2 Vef. 587. Oct. 1751. Earl of Bath v. Earl of Bradford.

25. In this cafe, it was faid by Lord Hardwicke Chan, that the rule of the court for allowing intereft for arrears of a jointure is not general; but the court will expect a fpecial cafe to be made for it, as the being obliged to borrow money at intereft. 2 Vef 662. July 1755. Anon.

26 Interest on a mortgage is not stopped, but on a proper and ftrict tender, and notice, and not upon propofals to deduct