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barred, the accessories fall along with it.” (a) In Harri. son v. Douglas (6), where the defendant in an action upon a mutual insurance policy paid money into court, it was considered, that it was open to the defendant to shew, that, by the rules of the society, the money due on a loss was payable by instalments. The declaration in this case does not profess to set out the whole of the agreements. It states, that it was agreed, “ amongst other things;" but the mutual promises are made in respect of the whole of the agreements. (c)

Sir W. Follett now shewed cause against the rule for a new trial. This rule depends upon the construction of the twenty-eighth section of 3 & 4 W. 4. C. 42., which leaves the question of interest in the discretion of the jury. The whole of the evidence was placed by the learned judge before the jury, with a view to the exercise of that discretion. [Wilde, S. G., proposed that the direction to the jury should be taken as it stood upon the short-hand writer's notes; to which Sir W. Follett assented. Bosanquet J. The proper course is to read the judge's note of his summing up.] The plaintiff claims interest upon the interest as it became due. The bill was filed against the plaintiff in 1826. The plaintiff put in his first answer in 1827. After this came the orders for an injunction. At the trial it was urged, on the part of the plaintiff, that, because the orders for an injunction prevented him from proceeding, the defendants were to be punished with interest. It is too much to assume that this bill in the Exchequer was filed for delay. (Lord Abinger said to the jury: We have nothing here but the bill and answer, and no in

(a) 2 New Cases, 717. And Franklin, 1 Stark. N. P. C. see Dixon v. Parkes, 1 Esp. 291. N. P. C. 110.; S. C. 5 Wentw. (6) 3 A. & E. 396.; 5 N. & Plead. 510, 516.; Hellier v. M. 180.

(c) Vide suprd, 316.. .

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ference ought to be drawn either one way or the other. There is nothing to shew that the bill was not filed bona fide. The learned judge certainly commented upon the evidence; but mere comments upon evidence cannot furnish any ground for a motion for misdirection. The late statute does not give interest in the case of a judgment reversed. The sole object of the enactment appears to have been, to enable juries to give interest where they had not such power before. For the defendants, Dickinson v. Harrison was cited; and, according to the argument which the plaintiff founds on that case, the plaintiff might recover interest upon the unpaid instalments of the purchase money, although the interest reserved in respect of such instalments had been actually paid by the defendants. Then it was said that courts of equity allow interest upon annuities. But, except under special circumstances, that is not so. (a) If the plaintiff had sold the estate under the power of sale given by the second agreement, he could have sold only for the principal and simple interest. But it is said that the jury may give interest, if they think fit. Unless they can give it under the 3 & 4 W. 4. C. 42. they clearly cannot. (6) These sums, whatever they are called, are interest (c) on the purchase-money, and therefore interest thereon is compound interest. (d) [Wilde S. G. If the act of parliament is against me, there is an end of that part of the case. (6) ]

(a) And see Creuze v. Hunter, 2 Ves. jun. 157.; Anderson v. Dwyer, 2 Scho. & Lefr. 301. Secùs, where the annuitant has been prevented from exercising his legal remedies by injunction; O'Donnell . Browne, 1 Ball & B. 262.; Pulteney v. Warren, 6 Ves. 73. In which case the annuitant is

entitled to interest from the
filing of the bill; Morgan v.
Morgan, 2 Dick. 643.; or, at
least, from the granting of the
injunction. And see Page v.
Newman, 9 B. &. C. 378., 4 M.
& Ryl. 305.
6) Vide suprà, 279. (a)

Vide suprà, 281. n. ,
(d) Vide suprà, 296. (6)

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Wilde S. G., in support of the rule for a new trial. In Beete v. Bidgood (a) an estate in Demerara was sold for 16,000l., the payment to be made by seven promissory notes, falling due, on the 1st of July in 1822, and the six following years, payable, with interest, at six per cent. In an action brought upon one of these notes, it was objected that the reservation of interest at six per cent. was remaining. Upon a special case being reserved and argued, the court held the payments reserved under the name of interest were, in substance, parts of the purchase-money. Lord Tenterden says (6), “The parties have calculated the price, partly, in what they considered the value in present money, partly in money to be paid at a future day. They have chosen to call it interest, which creates the whole difficulty. If they had said “payable by instalments, there would have been no doubt.” Littledale J. says, “The plaintiff, in effect, said, if you can pay me 16,0001. down, you shall have the estate at that price. The purchaser says, no; but I will pay you by instalments; upon which the seller says, then you shall pay me at the rate of six per cent. That they considered a reasonable rate. The doubt is raised merely by the use of the word interest.' ” (c) [Tindal C. J. That decision was quite right.] The third agreement, by relieving the defendants from personal responsibility as to the principal instalments, and leaving them both for the secondary instalments, reserved as interest, severed the two debts; and an action of debt might have been brought for that which was so reserved as interest; Dickenson v. Harrison. (d) It is true that in Seaman v. Dee (e), Lord Hale was of opinion that no action of debt lay for interest of

(a) 1 Mann. of R. 143., shortly reported, 7 B. & C. 453.

(1) 1 Mann. | Ryl. 155.

(c) Ibid.
(d) 4 Price, 282.
(c) 1 Ventris, 198.




money, though specially reserved by deed. (a) But that case is overruled by Herries v. Jamieson (6), Verney v. Iddings (c), Doran v. O'Reilly. (d) In Higgins v. Sargent (e) there was no day of payment, the money being payable at one month after an uncertain event, the death of A. The cases as to compound interest are collected in an important note to Sackett v. Bagwell. (g) A certain day does not, however, mean a day named, but a certain time. Here it was payable at the expiration of every six months after the 1st of October 1825. The third agreement adopts the half-yearly payments appointed by the first agreement. The interest which would accrue due before 15th of April 1827, when the last instalment was payable, would be interest recovered by the contract; that which accrued since that time would be recoverable as damages only. It may, therefore, be admitted that but for the statute (h) the plaintiff would not be entitled to the interest which he now claims. (e) It was a qualified right, subject to the discretion of the jury, that discretion to be exercised, as in all other cases, under the superintendence of the court. By the course which has been taken the plaintiff is deprived of his bill of exceptions. It is submitted that this is a clear case of misdirection. The defendant's bill, after delaying the plaintiff nine years, was dismissed with costs. The jury

(a) By 13 Eliz. C. 8., which gives the treble forfeiture where more than the statutory maxi mum of interest is reserved, the lender is to forfeit the simple interest if he take any thing under that amount, all usury, i.e.interest, being deemed unlawful, sect. 5. This section, which has never been formally repealed, had probably not become obsolete in Lord Hale's time; and it would have been absurd to allow an action to be

brought for that which, even if
paid without action, the re-
ceiver would, under 18 El. c. 8.
8. 5., have been bound to re-
fund. And see 1 Mann. & Ryl.
207. (a)

(6) 5 T.R. 553.
(c) 2 Chitt. Rep. 234.
(d) 5 Dow, Parl. C. 133.

(e) 2 B. & C. 348., 3 D. &
R. 613. And see 4 Mann. &
R. 307. (a), 309. (6)

(9) 4 Maddocks, 69.

(h) Suprà, 294.

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were told that they were not to try the equity suit, and
the ultimate and the intermediate decision were pre-
sented to them as entitled to equal weight; and that it
ought not to be assumed that the defendants were
guilty of any wrong towards the plaintiff, because they
ultimately failed in this suit in which they had tied up
his hands for nine years. In Pulteney v. Warren (a)
Lord Eldon C. says, “ If there be a principle upon
which courts of justice ought to act without scruple, it
is this: to relieve parties against that injunction occa-
sioned by its own acts or oversights at the instance of
the party against whom the relief is sought.” In Bond
v. Hopkins (6), Lord Redesdale C. says, “ Nothing is
better established in courts of equity than that where a
title exists at law and in conscience, and the effectual
assertion of it at law is unconscientiously obstructed,
relief should be given in equity.” In Grant v. Grant (c),
it was held that in a court of equity, a debt received by
bond may be carried beyond the penalty of the bond, if
the debtor has, by injunction, restrained the creditor
from proceeding at law, and there has been no miscon-
duct on the part of the creditor. In that case Lord
Lyndhurst C. stated “ that in his opinion the plaintiff's
demand was not to be limited by the amount of the pe-
nalty of the bond; for he had always considered, on the
authority of Duval v. Terry (d), that a party who had been
restrained from proceeding at law, while the debt was
under the penalty, had a right, in a court of equity, to prin-
cipal and interest beyond the penalty of the bond.” (e) In
a subsequent part of the case his Lordship says (g), “with
respect to the general jurisdiction, I entertain no doubt

(a) 2 Sch. & Lefr. 413.
(6) Ib. 429.

(c) 3 Russell, 607.; S.C.
3 Sim. 340.

(d) Show. P. C. 15.
(e) s Russ. 607.
(g) 16.609.

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