СНАР. XXXVII. Jury empowered to allow interest upon debts. Interest not formerly recoverable in trover, or trespass de bonis asportatis, be yond value of goods. Nor in actions on policies of insurance. was not recoverable on an account stated, unless it had been paid on former balances b; or, on money had and received, unless there was some express promise to pay interest, or something from which such a promise might have been inferred; or it was proved that the money had been used by the defendant, and interest made of itd. But now, by the late act for the further amendment of the law, &c. it is enacted, that " upon all debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of "any issue, or on any inquisition of damages, may, if they shall "think fit, allow interest to the creditor, at a rate not exceeding "the current rate of interest, from the time when such debts or 66 sums certain were payable, if such debts or sums be payable by "virtue of some written instrument at a certain time, or, if payable "otherwise, then from the time when demand of payment shall "have been made in writing; so as such demand shall give notice "to the debtor that interest will be claimed from the date of such "demand, until the term of payment: provided, that interest shall "be payable in all cases, in which it is now payable by law." In actions of trover, or trespass de bonis asportatis, interest was not formerly recoverable, as such, beyond the amount of the value of the goods, at the time of the conversion or seizure; though, in trover for a bill of exchange, it was holden, that damages were to be calculated according to the amount of the principal and interest due upon the bill, at the time of the demand and refusal to deliver it up. In actions on policies of insurance, it was formerly usual to allow interest; but this practice having been disapproved of h, it was afterwards settled, that in an action on a policy, the plaintiff could not recover interest upon the sum insured a; unless evidence were given that he had applied to the underwriter to settle the loss, soon after it happened, and notified to him the ground of such application. But now, by the late act for the further amendment of the law, &c. "the jury, on the trial of any issue, or on any “inquisition of damages, may, if they shall think fit, give damages "in the nature of interest, over and above the value of the goods 66 66 at the time of the conversion or seizure, in all actions of trover, or trespass de bonis asportatis; and over and above the money "recoverable in all actions on policies of assurance, made after the "passing of that act." On a writ of error returnable in the King's Bench, it was formerly the practice for that court, on motion, after affirmance, or non pros for not assigning errors, to order the master to computę interest on the sum recovered, by way of damages, from the day of signing final judgment below, down to the time of affirmance or non pros, and that the same should be added to the costs taxed for the plaintiff in the original action. In the Exchequer chamber, though the court, it seems, were bound to allow double costs to the defendant in error, on the affirmance of a judgment after verdict in the King's Bench, yet it was entirely a matter in their discretion, whether or not interest should be allowed on such affirmance: And the course was said to be, for the officer to settle the costs, unless any particular direction were given by the court; and, in taxing them, he allowed double the money out of pocket, or thereabouts, but added no interest as a matter of course f. In the latter court, there was a great variety of decisions, as to the cases in which interest was or was not recoverable, on the affirmance of a judgment; but it seemed at length to be the practice, to give interest only Interest only given in cases where it was recoverable below, unless writ of error was brought for delay. Interest to be allowed on all writs of error, for the time execution has been delayed. in cases where it was recoverable below; unless it were distinctly proved or admitted, that the writ of error was brought for delay": and therefore, though they once allowed interest in an action of 'tort, and on an attorney's bill, yet these decisions were afterwards disapproved of; and interest was refused in the latter action": and it was said to be contrary to the practice of the court, to give interest in an action for mere unliquidated damages f. But now, by the late act for the further amendment of the law 5, &c. "if any "person shall sue out any writ of error, upon any judgment whatsoever, given in any court, in any action personal, and the court "of error shall give judgment for the defendant thereon, then in"terest shall be allowed by the court of error, for such time as "execution has been delayed by such writ of error, for the delaying thereof." 66 66 a Becher v. Jones, 2 Campb. 428. n. and see Porter v. Palsgrave, id. 472. Boyce v. Warburton, id. 480. Marshall v. Poole, 13 East, 98. Slack v. Lowell, 3 Taunt. 157. Hammel v. Abel, and Middleton v. Gill, 4 Taunt. 298. De Tastet v. Rucker, 9 Price, 440, 41. Gurney v. Gordon, 2 Tyr. Rep. 616. 619. Saxelby v. Moor, 3 Taunt, 51. CHAP. XXXIX. Of IMMEDIATE JUDGMENT and EXECUTION, after Jury process, how returnable, before stat. 1 W. IV. c. 7. of this practice. The judge, be fore whom any action shall be tried, maycertify, THE writ of distringas, or habeas corpora juratorum, upon which the cause is tried at the assizes, or sittings at nisi prius after term in London or Middlesex, being returnable only in term time, it consequently happened, before the statute 1 W. IV. c. 7. that when a cause was tried in vacation, the plaintiff must have waited until the next term, before he could have obtained final judgment, or taken out execution. This practice was attended with great incon- Inconvenience venience; as it often happened that, by the intervening insolvency of the adverse party, the whole proceedings were rendered unavailing; and the plaintiff not only lost his debt, but was put to great additional expence, by the costs of the suita: To remedy this inconvenience, it was enacted by the statute 1 W. IV. c. 7., that "in all actions brought in either of the superior courts of law at "Westminster, by whatever form of process the same may be com"menced, it shall be lawful for the judge before whom any issue "joined in such action shall be to be tried, in case the plaintiff or "demandant therein shall become nonsuit, or a verdict shall be given for the plaintiff or demandant, defendant or tenant, to certify, under his hand, on the back of the record, at any time "before the end of the sittings or assizes, that in his opinion ex"ecution ought to issue in such action forthwith, or at some day to be "named in such certificate, and subject or not, to any condition or qualification; and in case of a verdict for the plaintiff, then either "for the whole or for any part of the sum found by such verdict; "in all which cases, a rule for judgment may be given, costs 66 66 C See 2 Rep. C. L. Com. 27. 81. D § 2. Append. to Chap. XXXIX. § 1. d As to the rule for judgment, see Tidd Prac. 9 Ed. 903. It should be remembered however, that, by a late rule of all the courts, (R. H. 2 W. IV. reg. before the end of the sittings or assizes, that ex ecution ought to issue forthwith. In which case judgment may be signed, and execution issued, according to terms of certificate. Decisions on the above statute. 66 b "taxed, and judgment signed forthwith, and execution may be "issued forthwith or afterwards, according to the terms of such certificate, on any day in vacation or term: and the postea, with such "certificate as a part thereof, shall and may be entered of record, "as of the day on which the judgment shall be signed, although "the writ of distringas juratores, or habeas corpora juratorum, may "not be returnable until after such day: Provided always, that it "shall be lawful for the party entitled to such judgment, to post"pone the signing thereof." On this statute certificates have been granted, to entitle the plaintiff to immediate execution, in actions of assumpsit on promissory notes, &c. or in other actions, where there was no reasonable ground of defence, and the judge has been of opinion, upon the facts proved at the trial, that execution ought to be issued forthwith, or at a future day, before the return of the jury process: and the judge will certify for immediate execution, in an action of assumpsit, though the verdict be taken by consent, and the consent does not contain any such terms. It was not formerly usual for the judge to certify, in an action of debt on simple contract, where the defendant was obliged to plead and go to trial, or the plaintiff might have signed final judgment, without any writ of inquiry, on proof of the amount of his debt f: and there has been some doubt amongst the judges, whether the statute was not intended to be confined to cases of contracte: But it seems to be now settled, that the plaintiff is entitled to early execution, under the above statute, in actions of debt, as well as in other forms of action h; and that it is not limited to cases of contract, but applies to all actions, where the judge thinks there ought to be such executions: And accordingly, a certificate has been granted in an action for mesne profits and costs in ejectment : § and, in an action for criminal conversation, 3 1 As to taxing costs, and signing final judgment, see Tidd Prac. 9 Ed. 930. b As to the time of suing out execution in general, see Tidd Prac. 9 Ed. f Fisher v. Davies, 1 Moody & R. ́93. per Ld. Tenterden, Ch. J. Ward v. Crocket, 5 Car. & P. 10. per Parke, J. Percival v. Alcock, 1 Moody & R. 167. per Parke, J. 8 Barden v. Cox, 1 Moody & R. 203. per Patteson, J. Younge v. Crooks, id. 220. per Parke, J. |