1814. ELLENBOROUGH C. J. The communication may be RAMSBOTTAM as penurious as will be necessary to satisfy this rule. You may put paper over the top and bottom, and shew them only the part they want.

against COOPER.

Rule absolute.

INTEREST.

ES

BISHOP against BEST.

ac

1818.

20th Nov.

grant a rule to

compute in

terest on a judgment, in an action upon a

bill of ex

change (a).

SPINASSE shewed cause against a rule which Court will not had been obtained by F. Pollock, for a reference to the Master to calculate interest upon a judgment recovered in an action upon a bill of exchange. It was admitted that interest might be given in an tion upon the judgment (b), but it could not, it was insisted, be given on motion. An action upon a judgment is watched jealously by the law. Thus, by the statute for preventing vexatious arrests, the plaintiff is not entitled to costs, unless the judge certifies (c).

Pollock urged, that the Court had clearly a discretionary power of granting the rule. The facts are left in the discretion of the Court.

PER CURIAM.

Rule discharged.

(a) Where an action is brought on a bill of exchange, the Court will grant a rule to compute principal and interest on the bill, though the plaintiff died after interlocutory judgment signed. Berger v. Green, 1 M. & S. 229; and see Brown v. Messiter, 3 M. & S. 281, where the bill was lost, and the Court granted the rule upon the production of a copy of the bill, verified by affidavit of the plaintiff's attorney, the original having been stolen from his pocket. But in Nelson v. Sheridan, 8 Term Rep. 395, the Court refused a rule to compute interest on a judgment, and to ascertain the damages sustained by the plaintiff by reason of the detention of the money recovered.

(b) Vide, M'Clive v. Dunkin, 1 East, 436.

(c) 43 Geo. 3. c. 46. sec. 4.

1817.

20th June.

Interest recoverable in an action of debt.

Semble-particularly where there is a cove

nant for inte

rest, and at all events, would be given as da

VERNEY against IDDINGS.

BAYLEY, R. in support of a demurrer in an action of debt on a mortgage deed, upon a covenant therein for payment of 8861. and interest, alleged to amount to 940l. The special demurrer assigned for cause, that 940l. were alleged to be due and owing; and such sum could not be due, because the date of the deed as shewn was the 20th of January. First objection, Action will not lie for interest. [PER CURIAM. Then the Court will give judgment for 8861. and damages interest by the for detention.] Bayley, R. submitted, that as the plaintiff declares for one entire sum, the Court cannot divide it. Second objection, that there was only a covenant to pay interest upon February 1817.

mages for de

tention of the

debt. Semb.

The demand of principal and

declaration is

divisible.

LORD ELLENBOROUGH C. J. He does not shew by the declaration from what time the interest begins: it may be for an old debt.

BAYLEY J. The declaration claims 8867. and plaintiff is not bound by the statement at the commencement of the declaration of a plea that he render 940l.; that has been held not to tie down the plaintiff (a): and if it appear on the declaration that the same certain debt is demanded, it is sufficient.

HOLROYD J. Have you any case to shew that interest cannot be recovered in an action of debt where there is a covenant to pay it?

PER CURIAM. This is a general demurrer, and you must shew that no judgment can be given upon the declaration, and that nothing can be recovered. The

(a) Lord v. Houstoun, 11 East. Rep. 62.

demurrer is too extensive. If the interest is uncertain, the Court will only give judgment for 8861. and then there will be an application to the Court to refer it to the Master to compute the principal and interest, and the interest will be given not as interest, but as damages for the detention of the debt; and so the interest, if uncertain, and therefore cannot be recovered as interest, will be made certain, and reserved as damages.

BAYLEY J. The demand is divisible.

Richardson, amicus curia, said, that there had been a case in the last sessions before the House of Lords, in which they had held that interest was recoverable in an action of debt.

LORD ELLENBOROUGH C. J. asked the name of the case; and BAYLEY J. said, that interest would be recovered if the principal was paid.

Judgment for plaintiff.

1817.

VERNEY

against IDDINGS.

IRREGULARITY.

1814.

28th May. Irregularity in process, on the ground of a variance between

the return of the writ and the day in the notice to appear, cannot be taken advantage of after

plaintiff had filed common bail, and also

tion in the of

fice, and given notice thereof

to the defendant.

COM

HOMPAY against Kenning.

OMYN obtained a rule, calling upon the plaintiff to shew cause why the writ and subsequent proceedings should not be set aside with costs, for irregularity, for a variance between the return and the day of the notice to appear at the bottom of the writ.

Abbott, in shewing cause, insisted that the application was made too late. The facts were, that the filed a declara- writ was returnable the 2d of May. The defendant not appearing on the 11th, the plaintiff filed common bail for him, according to the statute. He relied that in the case of an irregularity the party must come in the first instance, and if another step is taken in the cause, it is a waiver of the previous irregularity. He said it might be doubtful whether the act of filing common bail was such a step; but he contended that what the plaintiff had subsequently done was a waiver of it, namely, that the plaintiff had filed a declaration, and given notice of it to the defendant.

LE BLANC J. the only judge in the Court, was of opinion that it was a waiver, and discharged the rule with costs.