be seized under an extent before it is due, the neglect of the officer of the crown to give notice of the dishonor will not discharge the drawer or indorser.(h)

A prior dispensation with notice, as absence of effects, must be specially alleged.(i) So must the impossibility of giving notice, or any other excuse for not giving it.(k) And a subsequent promise, when used as a waiver of notice, must also be specially pleaded.(?) But a subsequent promise to pay, when used as evidence of the fact of notice, need not.(m)

After the bill is due, a promise to pay, or a part payment,(n) or the offer of it,(o) or any admission of liability, (p) whether before or after the period for giving notice has expired, is primâ facie evidence of notice; but though there be no evidence to repel the inference, the jury are not bound to draw it.(g) A letter from the defendant containing no promise of payment, but merely an ambiguous allusion to the bill being dishonored, was held sufficient to warrant the jury in finding that the defendant had received due notice of dishonor. (r) And the sending a person by the defendant, the drawer, to a remote indorsee two days after the bill had become due, to inform him that he, the drawer, had been defrauded of the bill, and that he should defend any action upon it, was left by Lord Tenterden to the jury as evidence to prove notice of dishonor.(s) And a statement by the defendant that he should pay the bill, and not avail himself of the informality of the notice,

[*307]

(h) West on Extents, 28, 29.

(i) Cory v. Scott, 3 B. & Ald. 624 (5 E. C. L. R.); Burgh v. Legge, 5 M. & W. 418.

(k) Allen v. Edmundson, 17 L. J., Exch. 91; 2 Exch. 719, s. c.

(7) Cordery v. Colville, 32 L. J., C. P. 211.

(m) Lundie v. Robertson, 7 East 231; Gibbon v. Goggon, 2 Camp. 188.

See post, chapter xxxiv.

(n) Horford v. Wilson, 1 Taunt. 12.

(0) Dixon v. Elliott, 5 C. & P. 437 (24 E. C. L. R.).

(p) Jackson v. Collins, 17 L. J., Q. B. 142; Mills v. Gibson, 16 L. J., 249; Rabey v. Gilbert, 6 H. & N. 586.

C. P.

(g) Bell v. Frankis, 11 L. J., C. P. 300; 4 M. & G. 446 (43 E. C. L. R.), s. c. (r) Booth v. Jacobs, 3 Nev. & M. 351.

(8) Wilkins v. Jadis, 1 Moo. & R. 41; and see Curlewis v. Corfield, 1 Q. B. 814 (41 E. C. L. R.).

has been held to be evidence of due notice.(t) And a conditional promise to pay, although the condition be not complied with, is still evidence.(u)

Notice to produce a notice of dishonor is not necessary.(x)

(t) Bronwell v. Bonney, 1 Q. B. 39 (41 E. C. L. R.).

(u) Campbell v. Webster, 15 L. J., C. P. 4; 2 C. B. 258, s. c.; but see Pickin v. Graham, 1 C. & M. 725; 3 Tyr. 923, s. c.

(x) Swain v. Lewis, 2 C., M. & R. 261. B. 210.

See Doe v. Somerton, 14 L. J., Q.

INTEREST, where not made payable on the face of the instru ment, (a) is in the nature of damages for the retention of the principal debt.1

[*309]

The general rule of the common law is that interest is *not recoverable unless there were an express stipulation(b) that interest should be paid, or unless such be the usage of trade. Bills

(a) But if interest be payable by the terms of the instrument it is recoverable, not as damages but as a debt: Watkins v. Morgan, 6 C. & P. 661 (25 E. C. L. R.); Hudson v. Fossett, 13 L. J., C. P. 141; 7 M. & G. 348 (49 E. C. L. R.), s. c. So if there be a collateral agreement to pay a particular rate of interest: Florence v. Jennings, 26 L. J. 275; 1 C. B. N. S. 584 (87 E. C. L. R.), s. c. As to payment of principal, in full of both principal and interest, see ante, p. 230.

(b) If at the time of a contract of sale the vendee agrees to pay by bill or note, and neglects to do so, interest is recoverable as part of the price : Marshall v. Poole, 13 East 98; Davis v. Smyth, 8 M. & W. 399.

1 The suspension of intercourse consequent upon civil war does not prevent interest from accruing: Shortrige v. Macon, 1 Phillips (Law) 392.

1

and notes, by the usage of trade, carry interest from the time of maturity; but a jury are not bound, unless they see fit, to give more than nominal interest, or, indeed, any interest at all.(c)

And now, by a recent statute for the amendment of the law, (d) interest is recoverable on all debts payable by virtue of a written instrument, at a time certain or ascertainable, and on all other debts after a written demand and notice that interest will be claimed from the date of the demand; but it is discretionary with the jury to give or withhold it.

Interest is seldom expressly made payable on the face of the instrument, but sometimes it is so.

Where interest is expressly made payable on the face of the instrument, it carries interest from its date, and not merely from its maturity. For unless the words "bearing interest," or other words of similar import, are taken to mean that interest is payable from the date of the instrument, they would be idle, since without any such words the owner of the bill or note would be entitled to interest from its maturity. Thus it has been held that on a bill drawn payable at a certain period after date, bearing interest, the plaintiff is entitled to recover interest from the date of the bill.(e) So where a note was made payable on demand with lawful interest, it was held to carry interest from the date. (f) So a promissory note whereby the maker promised to pay one year after his death 300l. with legal interest, bears interest from the date of the note.(g)1

(c) Keene v. Keene, 27 L. J., C. P. 88; 3 C. B., N. S. 144 (91 E. C. L. R.), S. C. See Cameron v. Smith, 2 B. & A. 305 (22 E. C. L. R.); 5 Taunt. 626 (1 E. C. L. R.); In re Burgess, 2 Moore 745; Ex parte Williams, 1 Rose 399; Ex parte Cocks, ibid. 317; Lowndes v. Collins, 17 Ves. 27; Lithgow v. Lyan, 1 Coop. C. C. 29. See post, p. 312.

(d) 3 & 4 Will. 4, c. 42, ss. 28, 29. See Taylor v. Stott, 34 L. J., Exch. 1; and Duncombe v. Brighton Club, L. R., 10 Q. B. 371.

(e) Kennerly v. Nash, 1 Stark. 452 (2 E. C. L. R.); Doman v. Dibden, 1 R. & M. 381; Richards v. Richards, 2 B. & Ad. 447 (22 E. C. L. R).

(f) Weston v. Tomlinson, Chitty, 9th ed. 681; Hopper v. Richmond, 1 Stark. 507 (2 E. C. L. R.).

(g) Raffey v. Greenwell, 10 Ad. & E. 222 (37 E. C. L. R.); 2 Per. & Dav. 365, s. c.

1 The interest on a note payable with annual interest on the happening of a certain event should be computed from the date of the note: Washband v. Washband, 24 Conn. 500. The words payable " with interest from day" are an equivalent to "from date:" Harrell v. Durrance, 9 Florida 490. A prom

Where interest is not expressly made payable by the terms of the instrument, it runs from the maturity of the *bill or note. [*310] If the bill or note, not expressly made payable with interest, be payable on demand, interest runs, not from the date of the instrument, but from the time of the demand. (h)1

Where there has been no demand except the action, interest may be given from the service. of the writ of summons.(i)

The indorser of a bill or note has been held liable to pay interest only from the time that he receives notice of the dishonor. "The drawer cannot," says Mansfield, C. J., "find out by inspiration who is the holder, and till he finds that out he cannot pay the bill. When he has found out who is the holder, he is bound to pay the bill within a reasonable time. If he does not he is liable to damages for not performing his contract; those damages are the interest on the bill."(j)

(h) Blaney v. Hendricks, 2 Bla. 761; Cotton v. Horsemanden, Prac. Reg. 357; and see Burough v. White, 4 B. & C. 327 (10 E. C. L. R.) ; 6 D. & Ry. 379; 2 C. & P. 8 (12 E. C. L. R.), s. c.; Parker v. Hutchinson, 3 Ves. 134; King v. Taylor, 5 Ves. 808; Lithgow v. Lyon, 1 Coop. 29; Lowndes v. Collins, 17 Ves. 27.

(i) Pierce v. Fothergill, 2 Bing. N. C. 167 (29 E. C. L. R.); 2 Scott 334,

S. C.

(j) Walker v. Barnes, 5 Taunt. 240; 1 Marsh 36, s. c.

issory note, made payable at a certain time after date, with interest from date at the rate of ten per cent. per annum, draws interest at said rate after maturity, and until paid: Hand v. Armstrong, 18 Iowa 324; Thompson v. Pickel, 20 Ibid. 490. If a note is given payable by installments, "with interest on the said sum," no interest is due upon the last installment until it becomes due: Saunders v. McCarthy, 8 Allen 42. A promissory note payable in three years, "with interest thereon till paid," bears interest from its date: Pittman v. Barrett, 34 Mo. 84. A promise to pay "with legal interest" imports interest from date: Gholson v. King, 79 N. C. 162. Interest on interest: House v. College, 7 Heisk. 128. Notwithstanding a note is payable without interest, interest is recoverable as damages for the detention of the money after due: Owsley v. Greenwood, 18 Minn. 429.

1 Patrick v. Clay, 4 Bibb 246; Schmidt v. Limehouse, 2 Bailey 276; see Pullen v. Chase, 4 Pike 210. A note on demand "with interest till paid" bears interest from the day of its execution: Pate v. Gray, 1 Hemstead 155. A note payable at a given time, to bear interest if not paid when due, bears that interest only from maturity: Horn v. Nash, 1 Clarke 204.

2 It is error to calculate interest on the damages allowed in a protested bill of exchange from the maturity of the bill: Rowland v. Hoover, 2 Howard (Miss.) 769; Murphy v. Andrews, 13 Alabama 722.