An advancement which, by the will of a testator, is to go in dimin. ution of the share of the estate of the one to whom the advancement is made, bears interest from the time of the probate of the will. Verplanck v. De Went, 10 Hun (N. Y.), 612. See Cabells v. Puryear, 27 Gratt. 902. Ryan v. 17. Interest as against guardians. A guardian is a trustee to invest, or to pay over, as the case may be; and as to interest, simple or compound, he is subject to the same rule that trustees are. Blount, 1 Dev. Eq. 382; Spack v. Long, 1 Ired. Eq. 426; Hughes v. Smith, 2 Dana, 257. As to the rule of interest for trustees, see the next section. When a guardian receives sums free from all claims, and that are large, compared with the current expenditures of the estate, he will be charged with interest thereon from a reasonable time after such receipt. Adams v. Lathan, 14 Rich (S. C.) Eq. 304; Bond v. Lockwood, 33 Ill. 212. But he is not liable to be charged with compound interest, unless he is guilty of such gross neglect in the execution of his trust as is evidence of fraud, and a failure to make annual settlements is not evidence of fraud. Calhoun v. Calhoun, 41 Ala. 369. § 18. Interest as against trustees. The authorities do not establish that a trustee is to pay interest, solely for the reason that he deposits the trust moneys with his own; nor because he makes use of them more or less in his own business. There must be superadded to this either a breach of trust, or a neglect or refusal to invest the fund at the time or in the mode which the trust instrument, or the law itself has pointed out. In the case where the trustee has made use of the funds, but no such breach of trust is shown, he may be charged with interest, if it be proved that he has made interest. Rapalje v. Norsworthy's Exrs., 1 Sandf. Ch. 399. See McNair v. Ragland, 1 Dev. Eq. 517; Sparhawk v. Buell's Admr., 9 Vt. 42, 82. If there is a trust to invest, or to receive and pay over, and the trust is not performed, through mere neglect, simple interest only is chargeable; but for an intentional violation of duty, and a corrupt use of the money in the business of the trustee, compound interest will be charged; or, according to the circumstances of the case, rests will be made. Schieffelin v. Stewart, 1 Johns. Ch. 620; Harland's Accounts, 5 Rawle, 323; Rowan v. Kirkpatrick, 14 Ill. 10; Montjoy v. Lashbrook, 2 B. Mour. 261; Fall v. Simmons, 6 Ga. 265. But where a trustee has violated his trust, a party interested in the trust, who delays many years to bring suit for the recovery of the trust property, without showing any reason therefor, will only be allowed interest from the commencement of the suit. Brinkley v. Willis, 22 Ark. 1. An assignee for the benefit of creditors who keeps the trust funds mingled with his own private funds, on deposit at a bank without any separate account of them, is chargeable with interest thereon at the usual rate. Duffy v. Duncan, 35 N. Y. (8 Tiff.) 187. And where a trustee fails to execute a trust to invest money for the maintenance of an infant during minority, and to accumulate the surplus income of the investments, equity will charge interest against him with rests, though he may not have used the trust money, and independent of any question of intention. King v. Talbot, 50 Barb. 453; 40 N. Y. (1 Hand) 76. See Leitch v. Wells, 48 N. Y. (3 Sick.) 585. · A depositor in a National bank, when it suspends payment, and a receiver is appointed, is entitled, from the date of his demand, to interest upon his deposit. Nat. Bank, etc., v. Mechanics' Nat. Bank, 94 U. S. (4 Otto) 437. § 19. Demand, interest from time of. The general rule is that in an action for goods sold and delivered, or services rendered, in account, where no express term of credit is proved, interest will be allowed from the time of a demand, or presentment of the account, or of the commencement of the suit, and not for any earlier period. Barnard v. Bartholomew, 22 Pick. 291; Amee v. Wilson, 22 Me. 116; Second Street, 66 Penn. St. 132. And it is held in Massachusetts that the rule applies in an action for money had and received. Ordway v. Colcord, 14 Allen, 59. Interest on a claim for services may be allowed without proof of a demand, when the debtor, by leaving the State, and having no fixed abode, prevented the creditor from making a demand. Graham v. Chrystal, 2 Abb. (N. Y. ) App. 263; 2 Keyes, 21. Interest may be recovered upon the amount of an award, after the same is due and after demand, under the common counts, although the declaration contains no count for interest. Tucker v. Page, 69 Ill. 179. A legacy charged on lands yielding profits carries interest from the time it becomes payable, even though no demand is made at that time. Keech v. Speakman, 1 Penn. L. J. 72. But in a winding up proceeding against a banking company, interest will not be allowed on its notes payable on demand, when no demand had been made before the proceedings commenced. In re Herefordshire, etc., Co., L. R., 4 Eq. 250. Where money is paid to one, who receives it, believing that it is his due, he is not liable for interest upon it before demand made, and refusal to pay, nor until he shall have reason to be satisfied that he ought to repay it, and shall know to whom he should pay it. Ashhurst v. Field, 28 N. J. Eq. 315; King v. Diehl, 9 Serg. & R. 409, 422. Interest on damages awarded for laying out a highway over the plaintiff's land may be recovered from the time of the demand. Clough v. Unity, 18 N. H. 75. § 20. Judicial demand of interest. Where a note or bond is payable on demand, or on request, although it is suable at once, yet the debtor is not considered in default until demand is made; hence interest runs only from the time of a demand in fact, or of suit brought, which is a judicial demand. National Lancers v. Lovering, 10 Fost. 511; Dodge v. Perkins, 9 Pick. 369; Breyfogle v. Beckley, 16 Serg. & Rawle, 264; Ringo v. R. E. Bank, 13 Ark. (8 Eng.) 584. A plaintiff is entitled to receive interest on the amount of a verdict from the date of the judicial demand. Murison v. Butler, 18 La. Ann. 296. But in an action of trespass interest can only be allowed from the date of the judgment liquidating the damages, and not from the date of the judicial demand. Robertson v. Green, 18 La. Ann. 28. § 21. Interest on verdicts. If no delay has been created by the defendant, no interest is allowed on verdicts. The People v. Gaine, 1 Johns. 343; Pawling's Adm'r v. Sartin, 4 J. J. Marsh. 238; Blickenstaff v. Perrin, 27 Ind. 527. But where delay has been made by the defendant, as by proceedings to obtain a new trial, if the original cause of action was a contract carrying interest, interest on the amount of the verdict till the entry of judgment or taxation of costs will be allowed (Vredenburg v. Hallett, 1 Johns. Cas. 27; Vail v. Nickerson, 6 Mass. 262); but not in an action of tort, not even, it is said, in trover. Henning v. Van Tyne, 19 Wend. 101. But this doctrine is questioned in Bissell v. Hopkins, 4 Cow. 53. See, too, Atherton v. Fowler, 46 Cal. 320. Interest should be added to the amount of a verdict from the time the judgment ought to be entered, and not from the date of the verdict. Shephard v. Brenton, 20 Iowa, 41. § 22. Interest on judgments. Interest is incident at law to judgments (Gwinn v. Whitaker, 1 Harr. & Johns. 754; Tazewell v. Saunders, 13 Gratt. 368); but not as to costs unless actually paid, and then from the date of payment. Rogers v. Burns, 27 Penn. St. 528. But, independently of statutes, the only remedy by which it can be recovered is an action of debt on the judgment, in which way it can be recovered as damages for the detention, from the time of the entry of the judgment. Sayre v. Austin, 3 Wend. 496; Hodgdon v. Hodgdon, 2 N. H. 169; William's Adm'r v. American Bank, 4 Metc. 317. The rule applies even where the judgment is that of a justice of the peace of another State. Mahurin v. Bickford, 6 N. H. 568. And interest will be allowed at the legal rate of the State where it is claimed, in the absence of proof of the existence of a different legal rate in the State where the judgment was rendered. Deem v. Crume, 46 Ill. 69. The rule applies, too, where the original judgment was for a cause of action that does not bear interest, as for unliquidated damages (Klock v. Robinson, 22 Wend. 157; Marshall v. Dudley, 4 J. J. Marsh. 244); or where the action was for a penalty, and the judgment with the interest exceeds the penalty. Smith v. Vanderhorst, 1 McCord (S. C.), 328. A judgment can properly bear interest only from the time of its date. Bibend v. Liverpool, etc., Ins. Co., 30 Cal. 78. A judgment for a penalty in the United States district court bears interest. Booth v. Ableman, 20 Wis. 602. But where both parties to a suit appeal from a decree of a district court awarding to a libellant a sum of money as salvage, and the decree is sustained unchanged in the appellate court, the libellant is not entitled to interest on the sum awarded from the date of the decree in the district court. The Rebecca Clyde, 12 Blatchf. 403. Interest on a judgment on land sold by the sheriff will not be allowed later than the day of sale. Bachdell's Appeal, 56 Penn. St. 386. Where the creditor voluntarily discharges his debtor from imprisonment, and afterward brings an action of debt on a judgment against him, he is not entitled to interest thereon during the time the debtor was imprisoned. Dennison v. Slason, 39 Vt. 606. § 23. Interest on executions. At common law, on an execution on a judgment, interest cannot be levied, because the execution must pursue the judgment, and there is nothing in the record to authorize the collection of interest. Watson v. Fuller, 6 Johns. 283. But in the case of a bond with a penalty, the interest due on the bond will be allowed. Thomas v. Wilson, 3 McCord, 166. As a consequence of the right to levy execution only for the judgment and not for the interest, a judg ment is a lien on land only for the principal amount and not for interest on it. Mower v. Kip, 6 Paige, 89. But interest on a judgment is now allowed by statute in most States. § 24. Interest, suspension of. Interest is not allowed during the time a right of action is suspended by war. Selden v. Preston, 11 Bush (Ky.), 191; Mayer v. Reed, 37 Ga. 482. But as it is the duty of the debtor to seek his creditor and pay his debt, he must show that the failure to pay was not the result of his neglect. Pillow v. Brown, 26 Ark. 240. As to the accruing of interest on debts due by a citizen of a loyal State to a citizen of one of the confederate States during the recent civil war-see Bigler v. Waller, Chase's Dec. 316. Where a bond, given by one residing in the Union lines during the rebellion, was payable within said lines to the authorized agent of the creditor, who resided within the confederate lines, the interest was not suspended. Ward v. Smith, 7 Wall. (U. S.) 447. And where the holder of a promissory note in Maryland parted with the note before it fell due, and entering the confederate army did not return to the State until after the war, and then became repossessed of the note which long before had fallen' due, the maker during the whole time continuing a citizen of the State, the holder is entitled to recover interest during the, war. Thomas v. Hunter, 29 Md. 406. But it is held in a recent case in Virginia that where during the rebellion a creditor resided within the territory of the belligerent powers, and his debtor within that of the other of said powers, such debtor would, under the rules of public law, be entitled to an abatement of interest during the time the war lasted. Roberts v. Cocke, 28 Gratt. 207. And see McVeigh v. Bank of Old Dominion, 26 id. 188. So it was held by the supreme court of the United States, that interest on loans made previous to, and maturing after the commencement of the war, ceased to run during the subsequent continuance of the war, although interest was stipulated in the contract. Brown v. Hiatts, 15 Wall. 77. See, also, Fred v. Dixon, 27 Gratt. 541; Walker v. Beauchler, id. 511. The payment of interest is not arrested by notices from each one of two partners requesting the debtor not to pay to the other any moneys due the partnership. King v. Kelley, 51 Penn. St. 36. § 25. Interest, when barred. Where interest is made payable by the terms of a contract, its collection can be enforced after the principal of the debt has been paid; but where it is allowed, not as a part of the contract, but as an incident and in lieu of damages, or as compensatory for some loss by reason of a breach or default, no action will lie to recover interest after payment of the principal of the debt and its receipt in full, it being extinguished with the debt. Ludington v. Miller, 6 J. & Sp. (N. Y.) 478; Southern Central R. R. Co. v. Moravia, 61 Barb. 180. But where collateral security is given, by bond and mortgage, drawing interest, for an indebtedness of a larger amount, it is fairly inferable that the parties intended that the interest should accumulate to cover the deficiency, and the payment of interest on the principal debt will not necessarily extinguish the interest upon the collaterals. Cory v. Leonard, 56 N. Y. (11 Sick.) 494; 1 N. Y. Sup. (T. & C.) 183. § 26. Tender, its effect upon interest. A tender, so far as the computation of interest is concerned, must be considered as a payment. Hidden v. Jordan, 39 Cal. 61; Davis v. Parker, 14 Allen (Mass.), 94; Raymond v. Bearnard, 12 Johns. 274. And see Vandergrift's Appeal, 80 Penn. St. 116; Rooney v. Dubuque Co., 44 Iowa, 128. But VOL. IV-19 |