1840. ATTWOOD บ. TAYLOR. Whateley, on the same side. Great doubts appear to have existed formerly as to the effect of the payment of money into court, Gutteridge v. Smith (a), Giles v. Hartis (b), Andrews v. Palsgrave (c), Randall v. Lynch (d), Cox v. Parry. (e) In Mellish v. Allnut (g), it was held, that payment of money into court upon a count, on a policy of insurance, though an admission of the contract, does not preclude the defendant from disputing the liability beyond such payment. Lord Ellenborough there says, "If the rule were set out in terms, it would only be evidence, and the jury should have drawn the conclusion." In Dyer v. Ashton (h), the result of the decisions upon this point is thus summed up. "The effect of all these cases upon this subject is, that the payment of money into court admits every thing which the plaintiff would be obliged to prove, in order to recover that money." Talbot, on the same side. In Reid v. Dickons (i), it was held, that the payment of money into court upon a count on a promissory note payable by instalments, admitted the making of the note, and that money to the extent of the sum paid in, remained due; but that it did not admit the non-payment of those instalments to which the statute of limitations was pleaded. In that case, Parke J. says, "The payment of money into court admits the contract as alleged, and a right to recover 1107., but, beyond that sum, every defence is open. It is much the same thing, as if the defendant had admitted the contract, and stated, at the same time, that no more than 1107. 10s. 6d. was due upon it. And Patteson J. says, in Cox v. Parry (k), "It was decided (a) 2 H. Bla. 374. (b) 1 Lord Raym. 254. (d) 2 Campb. 357. (e) 1 T. R. 464. (g) 2 M. & Selw. 106. (h) 1 B. &C.3.; 2 D.& R. 19. (i) 5 B. & Ad. 499., 2 N. & M. 369. (k) 1 T. R. 464. that payment of money into court is an acknowledgment by the defendant, of the contract, and that the plaintiff is entitled to recover the sum so paid; but that it did not preclude him from taking any objection limiting the operation of the contract, in order to bar the plaintiff from recovering more than had been paid into court." So in Long v. Greville. (a) In Watkins v. Morgan (b), which was an action of debt, upon a covenant to pay 2707. with lawful interest for the same from the 15th of June, on the 15th of December, laying the damages at 107.; it was held by Littledale J. at Nisi Prius, that, inasmuch as the contract in the deed was only to pay 270l. with six months' interest, which would be 2761. 15s., all the rest was damages for the detention, and that the plaintiff having laid those damages at 10l., could not recover more. On an application being made to that learned Judge, to amend the declaration as to the statement of damages, his Lordship refused to do it on the ground that it was not any variance between the deed and declaration. In Dickenson v. Harrison (c), it was held, that interest is not a part of the debt secured by mortgage, but rather sounds in damages. (d) In Higgins v. Sargent (e) it was held, that interest was not recoverable upon a sum of money covenanted to be paid six months after due proof of the death of A. In Hollis v. Palmer (g), Tindal C. J. says, " in ordinary cases, interest has always been deemed a mere accessory of the loan, and when the demand for the principal is (a) 3 B. & C. 10.; 4 D. & R. 632. (b) 6 Carr. & P. 661. (c) 4 Price, 282. (d) The marginal note, containing this position, appears to be warranted by what fell from Graham B., by whom this doctrine was laid down, even with reference to an ex- (e) 2 B. & C. 348., 3 D. & (g) 2 New Cases, 713. 1840. ATTWOOD V. TAYLOR. 1840. ATTWOOD บ. TAYLOR. barred, the accessories fall along with it." (a) In Harrison v. Douglas (b), 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 see Dixon v. Parkes, 1 Esp. N. P. C. 110.; S. C. 5 Wentw. Plead. 510. 516.; Hellier v. Franklin, 1 Stark. N. P. C. 291. (b) 3 A. & E. 396.; 5 N. & M. 180. (c) Vide suprà, 316.. ference ought to be drawn either one way or the other. There is nothing to shew that the bill was not filed bonâ 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. (b) 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. (b)] (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 v. Browne, 1 Ball & B. 262.; Pulteney v. Warren, 6 Ves. 73. In which case the annuitant is VOL. I. Ꮓ entitled to interest from the (b) Vide suprà, 279. (a) 1840. ATTWOOD v. TAYLOR. 1840. ATTWOOD V. TAYLOR. 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 (b), "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 16,000l. 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. & R. 143., shortly reported, 7 B. & C. 453. (b) 1 Mann. & Ryl. 155. (c) Ibid. |