the tender of a less sum than the amount due will not stop interest on that money. Shobe v. Carr, 3 Munf. 10. And the tender, in order to be availing, must be followed up, and the money brought into court. Hamlett v. Tallman, 30 Ark. 505. An offer to pay on a reasonable condition, such as the giving up of the security, and a tender after action brought, will stop interest if the debtor does not afterward use the money. Dent v. Dunn, 3 Campbell, 296; Suffolk Bank v. Worcester Bank, 5 Pick. 106.

When the purchaser tendered the purchase-money for a tract of land, and demanded a deed in pursuance of the contract, but the vendor was unable at the time to make the title, and did not take the money, it was held that he could not charge the purchaser with interest from the date of the tender until the title was made. William v. Willhite, 3 Head (Tenn.), 344. So an offer by the maker of a promissory note to pay the sum due thereon, upon a restrictive condition which the holder refuses, or is not in a situation to fulfill, is sufficient to stop the running of interest. Haywood v. Hartshorn, 55 N. H. 476.

In a suit for the specific performance of a contract to convey land, the defendant is not entitled to interest on the purchase-money which has been tendered and refused, from the date of the tender, unless he proves that the plaintiff has used it. Hunter v. Bales, 24 Ind. 299. But where a vendee, apprehending no danger as to the title to the land, made a formal tender, not in good faith, but for an unreasonable advantage, and subsequently used the money tendered, as well as the land for which he owed it, he is not entitled to exoneration of interest. Nantz v. Lober, 1 Duv. (Ky.) 304.

§ 27. Compound interest. As a mere incident to interest, new interest is not allowed. Stokeley v. Thomson, 34 Penn. St. 213; Wilson v. Davis, 1 Mon. T. 183. It cannot be allowed where there is no special agreement incorporated in a contract or stipulated between the parties. Young v. Hill, 67 N. Y. (22 Sick.) 162; Stoner v. Evans, 38 Mo. 461; Doe v. Vallego, 29 Cal. 385; Van Husan v. Kanouse, 13 Mich. 303; Banks v. McClellan, 24 Md. 62. But an agreement to pay interest on interest is not usurious nor illegal (id.; Dow v. Drew, 3 N. H. 40; Guernsey v. Rexford, 63 N. Y. [18 Sick.] 631), although parties should not prospectively agree that interest shall bear interest. Gunn v. Head, 21 Mo. 433. Without a special agreement compound interest is only allowed in case of gross delinquency, or intentional violation of duty. Bennett v. Cook, 2 Hun, 526; 5 N. Y. Sup. (T. & C.) 526; Rayner v. Bryson, 29 Md. 473.

A note due to a guardian bears compound interest up to the time the ward arrives at full age, and thereafter simple interest upon the whole

amount, principal and interest, due at said date. Little v. Anderson, 71 N. C. 190; Payne v. King, 38 Mo. 502.

In Texas, where a contract stipulates for interest annually, interest runs on the annual interest as it accrues. Lewis v. Paschal, 37 Tex. 315.

A contract made in California, to pay monthly 2 per cent interest and to compound it, although lawful under the lex loci, is unconscionable and deceptive and will not be enforced by a court of law in Pennsylvania. Lime v. Norris, 8 Phil. (Penn.) 84.

§ 28. Payments, interest on, how computed. Where partial payments have been made on a note, or other claim bearing interest, interest is to be computed on the principal sum from the time when the interest commenced, to the first time when a payment was made, which alone, or taken in conjunction with preceding payments, if any, exceeds the interest at that time due. Then add this interest to the principal and from the sum subtract the payment made at that time together with preceding payments, if any. The remainder forms a new principal, on which to compute and subtract interest as upon the first principal, and the computation should proceed in the same manner to the time of payment or judgment. Pierce v. Faunce, 53 Me. 351; Markel's Admr. v. Spitler's Admr., 28 Ind. 488; Heartt v. Rhodes, 66 Ill. 351; Curd v. Davis, 1 Heisk. (Tenn.) 574; Den's Estate, 35 Cal. 692. But where, by the terms of a written contract, payments become due on a certain day in each month, it is proper to allow interest on such sum as may be due on the specified day, from that time until paid. Dobbins v. Higgins, 78 Ill. 440. Upon a contract to pay a sum in installments, the payments to begin at a future time "with interest," the interest begins to run from the making of the contract. Conners v. Holland, 113 Mass. 50. In mutual accounts, interest is to be cast on the annual balance. Davis v. Smith, 48 Vt. 53.

Where there is an agreement to pay money, but no time is limited for the payment, interest is payable from the time when the money becomes due (Ruckman v. Bergholz, 38 N. J. L. 531), and interest is chargeable from the time money was wrongfully obtained, and not merely from the time of demand. Atlantic Nat. Bank v. Harris, 118 Mass. 147; Robbins v. Laswell, 58 Ill. 203.

Partial payments made upon a debt drawing interest should be first applied in payment of the interest, and afterward to the reduction of the principal. Spires v. Hammet, 8 Watts & S. 18; Smith v. Shaw, 2 Wash. (C. C.) 167; Mills v. Saunders, 4 Brown (Neb.), 190.

§ 29. Law of place and its effect. If a promissory note, dated in one State and made payable in another, contains no stipulation as to

the rate of interest, the rate will be determined by the law of the State where it is made payable (Howard v. Branner, 23 La. Ann. 369); and in a suit upon an open account or note created in a foreign country, if the plaintiff fail to allege and prove the legal rate of interest in that country, the rate of interest allowed by law in the State where the remedy is sought will govern. Pauska v. Daus, 31 Tex. 67;

Booty v. Cooper, 18 La. Ann. 565. But this general rule must be understood as applicable to those contracts only in which the parties have failed to make any stipulation as to the rate of interest. Bolton v. Street, 3 Cold. (Tenn.) 31.

Where interest is allowed not under contract, but by way of damages, the rate must be according to the lex fori. Goddard v. Foster, 17 Wall. 123. And where there is no statute where the transaction takes place, interest at a reasonable rate, and according to the customs which obtain in the community in dealings of the same character, will be allowed. Young v. Godbe, 15 Wall. 562.

Interest or damages for the non-payment of bonds at maturity is to be computed by the laws of the State where the same and the mortgage to secure them were executed and the parties resided, if no provision is made for payment elsewhere, although the mortgage is upon real estate in another State. Kavanagh v. Day, 10 R. I. 393; 14 Am. Rep. 691; Chase v. Dow, 47 N. H. 405. Or they may draw the rate of interest of the State where the security is situate. Lewis v. Ingersoll, 3 Abb. (N. Y.) App. Dec. 55; 1 Keyes, 347.

A mortgage and note drawing 12 per cent interest, executed in a State where such rate of interest is allowed by law, is valid in the State where executed, although made payable in a State in which such a rate would render it usurious. Fisher v. Otis, 3 Pinn. (Wis.) 78 ; 3 Chand. 83; Kilgore v. Dempsey, 25 Ohio St. 413.

Interest is allowed upon a foreign judgment 'where a recovery is had upon it in another State. Mahurin v. Bickford, 6 N. H. 567.

The legal rate of interest of one State is not presumed to be within the knowledge of the courts of another State, but it must be proved like any other fact. Richardson v. Williams, 2 Port. 239. And the court cannot, without the intervention of a jury, to find the rate of interest, render judgment for interest on a note made and payable in another State. Pawling v. Sartain, 4 J. J. Marsh. 238; Hunt v. Mayfield, 2 Stew. 124; Russell v. Shepherd, Hardin, 48.

The lex loci is to govern on the question whether interest is to be allowed upon a merchant's account. Cocke v. Conigmaker, 1 A. K. Marsh. 254; Courtois v. Carpentier, 1 Wash. C. C. 376.

CHAPTER LXXXIV.

INTERPLEADER.

TITLE I

OF INTERPLEADER IN GENERAL.

ARTICLE I.

NATURE AND OBJECT OF THE REMEDY.

Section 1. In general. Interpleader is the remedy given to a person standing in the position of a mere stakeholder, against whom two or more persons severally make claim to the same thing, under different titles or in separate interests; and who, not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties; and who, therefore, applies to the court, not only to protect him from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation attending upon the suits, which are or may be instituted against him, upon the deposit in court of the thing claimed. Bedell v. Hoffman, 2 Paige, 199; Hodges v. Griggs, 21 Vt. 280; Farley v. Blood, 30 N. H. 354; Union Bank v. Kerr, 2 Md. Ch. 460; Cornish v. Tanner, 1 Y. & J. 333; Laing v. Zeden, L. R., 9 Ch. 736; Desborough v. Harris, 5 DeG., M. & G. 439; Nelson v. Barter, 2 H. & M. 334; Atkinson v. Manks, 1 Cow. 691, 703; Goddard v. Leech, Wright (Ohio), 476; Strange v. Bell, 11 Ga. 103; Burton v. Black, 32 Ga. 53. § 2. Interpleader at common law. The remedy by interpleader was recognized at common law, but its application was restricted to the case where there was a joint bailment by both claimants (Crawshay v. Thornton, 2 Myl. & Cr. 1, 21); or to the case where a chattel had come to a man's possession by accident, or by finding, and he was sued in detinue by different persons, each claiming to be the owner in severalty.

The depositary might then plead the facts of the case, and pray that the plaintiffs in the several actions might interplead with each other. Id.; 3 Reeves' Eng. Law, 250, 448. The remedy, being principally confined to actions of detinue, afforded very imperfect relief in a great variety of cases, and is of little or no practical advantage in modern times, since the action of detinue is but seldom resorted to in any case. See ante, Vol. 2, pp. 529, 530.

§ 3. Interpleader as an equitable remedy. The proper remedy, therefore, of a person sued, or who is in danger of being sued, by several claimants of the same property, is to file a bill to compel them, by the authority of a court of equity, to interplead, either at law or in equity. Farley v. Blood, 30 N. H. 363. That in such cases the protection of the court ought to be extended upon principles of a most obvious equity, which require that the claimants should be compelled to interplead and settle the contest between themselves, without involving the plaintiff in a dispute in which he is not interested to any greater extent than as a mere stakeholder. Langston v. Boylston, 2 Ves. Jr. 109; Angell v. Hadden, 15 id. 245; Glyn v. Duesbury, 11 Sim. 147. And an interpleader will be sustained whenever it is necessary for the protection of a person from whom several others claim, legally or equitably, the same thing, debt, or duty, but who has incurred no independent liability to any of them, and does not himself claim an interest in the matter. Cady v. Potter, 55 Barb. 463; Barry v. Mut. Life Ins. Co., 53 N. Y. (8 Sick.) 536. See, also, Perkins v. Trippe, 40 Ga. 225. A party, holding a fund in which he has no interest, and to which adverse claims are set up, will not be compelled to stand an action at law brought by either party, even under a promise of indemnity from the other. Nor will he be obliged to exercise any judgment on the subject of the conflicting rights of the parties, when one threatens or commences a suit and the other forbids payment. Bleeker v. Graham, 2 Edw. Ch. 647. He may file the bill before he is actually sued. Farley v. Blood, 30 N. H. 363; Richards v. Salter, 6 Johns. Ch. 445. The filing of bills of interpleader ought not, however, to be encouraged, while there are other means of adjusting conflicting claims with safety to the stakeholder. Bedell v. Hoffman, 2 Paige, 199; Greene v. Mumford, 4 R. I. 313. And, in general, where the case presented by the bill praying relief by interpleader is not a claim by different parties to the same fund or assets in the hands of the complainant, for which he has a right to ask them to discharge him and interplead between themselves, such relief will be denied. Leddel v. Starr, 20 N. J. Eq. 274.