is to be implied from the usage of trade, or other circumstances"; per Abbott, C. J., Higgins v. Sargent, 2 B. & C. 349; Page v. Newman, 9 B. & C. 381; Rhodes v. Rhodes, Johns. 653; 29 L. J., Ch. 418; notwithstanding many older cases at variance with the rule as above stated. See Foster v. Weston, 6 Bing. 714; Arnott v. Redfern, 3 Bing. 359; Pinhorn v. Tuckington, 3 Camp. 468; Swinford v. Burn, Gow, 8. That there may be a usage to pay a certain interest on the settled balance of a merchant's account, see Orme v. Galloway, 9 Exch. 544; 23 L. J., Ex. 118. Where title deeds have been deposited to secure a loan the loan carries interest. In re Kerr's Policy, L. R., 8. Eq. 331. In an action on an undertaking to let judgment go by default in a suit for a mortgage debt, and to pay principal and interest, in consideration of staying execution for a certain time, it was held that the jury might give interest by way of damages down to the date of the verdict for breach of the agreement by non-payment; and this without the aid of stat. 3 & 4 Will. 4, c. 42. Harper v. Williams, 4 Q. B. 219. Where the contract is to pay a sum of money, with interest, at a given rate on a given day, if the sum be not paid on that day, there is no contract to continue to pay the same rate of interest after the day for payment; damages may, however, be awarded by the jury for the nonpayment, and the former rate may be taken by them as a guide in assessing the damages. Cook v. Fowler, L. R., 7 H. L. 27. See also Goodchap v. Roberts, 14 Ch. D. 49, C. A.

The following cases in which interest was not allowed must now be taken as subject to the statute hereafter mentioned.

It has been held that interest cannot, at common law, be recovered on money received to the use of another; De Havilland v. Bowerbank, 1 Camp. 50; though the money was obtained by fraud; Crockford v. Winter, Id. 129; nor, for money lent, to be repaid either upon demand or at a given time; Calton v. Bragg, 15 East, 223; Higgins v. Sargent, 2 B. & C. 351; nor, where the borrower by a written instrument promised to repay it at a certain time; Page v. Newman, 9 B. & C. 378; nor, on money paid; Carr v. Edwards, 3 Stark. 132; nor, on money due for work and labour; Trelawney v. Thomas, 1 H. Bl. 303; nor, on money due for goods sold and delivered to be paid for on a certain day; Gordon v. Swan, 12 East, 419; 2 Camp. 229, n; nor, upon a policy of insurance; Kingston v. M'Intosh, 1 Camp. 518; nor, upon a policy of insurance on a life, where the money was payable six months after proof of the death; Higgins v. Sargent, 2 B. & C. 348; nor, on a single bond; Hogan v. Page, 1 B. & P. 337; nor, on rent; per Tindal, C. J., Foster v. Weston, 6 Bing. 714; nor, on an instrument, to pay 1,500l. to be delivered in goods by three payments of 500l. each, at 3, 5, and 7 months." Foster v. Weston, 6 Bing. 709. An auctioneer employed to sell an estate, who receives a deposit from the purchaser, is a stakeholder liable to be called upon to pay the money at any time; and therefore, although he may make interest by it, he is not liable to pay interest to the vendor on the completion of the contract. Harington v. Hoggart, 1 B. & Ad. 577. So of an agent or banker who holds money payable at a moment's notice. See cases cited by Parke, J., S. C.

Interest in the case of mercantile instruments.] The mercantile instruments which have always been held to carry interest, whether mentioned or not, are bills of exchange and promissory notes. By the Bills of Exchange Act, 1882, s. 9 (3), ante, p. 342, where a bill of exchange, or promissory note, see s. 89, ante, pp. 400, 401, is expressed to be payable with interest, unless the instrument otherwise provides, interest runs from the date thereof, and if undated from its issue; and where interest is made

payable at a certain rate, the jury may give interest at the same rate, against the drawer, from the time of being due; Keene v. Keene, 3 C. B., N. S. 144; 27 L. J., C. P. 88; but the jury are not bound to give it. Cook v. Fowler, ante, p. 594. If the instrument be silent about interest, it is payable only from the time when the instrument becomes due. Upon a bill or note, payable on demand generally, not specifying interest, interest is given from the time of the demand proved; Blaney v. Hendricks, 2 W. Bl. 761; or, dispensed with, e.g., by the bank which gave the note closing its doors; In re East of England Banking Co., L. R., 6 Eq. 368; L. R., 4 Ch. 14; overruling In re Herefordshire Banking Co., L. R., 4 Eq. 250. And when no demand is proved, from the issuing of the writ. Pierce v. Fothergill, 2 N. C. 167. Against the drawer of a bill, not mentioning interest, interest is only recoverable from the time of his receiving notice of dishonour. Walker v. Barnes, 5 Taunt. 240; 1 Marsh. 36. It has, however, been said that, in an action on a bill not bearing interest on its face, interest is in the nature of damages, and the jury may allow it, or may disallow it in case the delay of payment has been occasioned by the default of the holder. Per Bayley, J., Cameron v. Smith, 2 B. & A. 308; Brewerton v. Parker, 17 L. T., N. S. 325, Byles, J. But though the jury are to decide whether interest is to be allowed, and what is the interest current at any particular place, it is a question of law what rate of interest is to be allowed on such a bill; therefore where the jury gave the indorsee of a bill interest at 6 per cent., in an action against the drawer on nonacceptance, and the interest at the place where it was drawn was found to be 25 per cent., it was held that the plaintiff was entitled by law to the higher rate. Gibbs v. Fremont, 9 Exch. 25; 22 L. J., Ex. 302. The indorsee of a bill may sue the acceptor for interest, although he has taken another bill from the defendant for the amount of the first, which has been duly paid. Lumley v. Musgrave, 4 N. C. 9.

When goods are sold to be paid for by bill, interest from the time when the bill would, if given, have become due may be recovered as part of the price in an action for goods sold and delivered. Farr v. Ward, 3 M. & W. 25; Davis v. Smyth, 8 M. & W. 399.

Interest implied.] A promise to pay interest may be implied from the acts of the parties. Thus, where a former balance has been settled upon an allowance of interest in a banker's book, it is an admission by the party of a contract to pay interest on the sums advanced to him by the banker. Calton v. Bragg, 15 East, 223, 228, per Ld. Ellenborough, C. J. But where the defendant undertook to transfer to plaintiff's account a sum due from defendant to A., plaintiff cannot recover interest on it merely because interest was allowed in the usual course of dealing between defendant and A. Frühling v. Schroeder, 2 N. C. 77.

Compound interest is not generally allowed unless the parties have expressly or impliedly contracted to pay it, or there be a custom. Fergusson v. Fyffe, infra. Even where the defendant contracted to pay money by certain instalments, and also interest on each instalment from the day appointed for payment, and to secure payment of such interest by his bond, it was held that, on default of payment, a jury was not bound, either at common law or under stat. 3 & 4 Will. 4, c. 42, s. 28, to award interest upon such interest. Attwood v. Taylor, 1 M. & Gr. 279. Where the plaintiffs had acted as agents for the defendant, and advanced moneys, and at the close of each account (which was delivered annually) had charged interest, and at each rest had added the interest of the preceding year to the principal, Ld. Ellenborough held that the accounts, which had not been objected to for a number of years, afforded evidence of a promise

to pay interest in this manner. Bruce v. Hunter, 3 Camp. 467. But where compound interest is so charged, it must appear that the debtor knew that the practice was to make such rests. Moore v. Voughton, 1 Stark. 487; and see Dawes v. Pinner, 2 Camp. 486, n. And even where a mortgage debtor had settled mortgage accounts on the footing of compound interest, both he and the mortgagee being under the erroneous impression that compound interest was payable under the mortgage deed, the debtor was held entitled to have the accounts reopened. Daniell v. Sinclair, 6 Ap. Ca. 181, P. C.

Where, by the course of dealing between a banker and his customer, the former has charged compound interest on the amount of the customer's overdrawn account, the banker loses the right to charge compound interest when the relation of banker and customer ceases between the parties, as on the death of the customer. Williamson v. Williamson, L. R., 7 Eq. 542; following Fergusson v. Fyffe, 8 Cl. & F. 121. But it seems that the balances will carry simple interest from the customer's death. S. CC.

Interest by statute.] By stat. 3 & 4 Will. 4, c. 42, s. 28, "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 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."

By sect. 29, the jury "may, if they shall think fit, give damages in the nature of interest over and above the value of the goods 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 this Act" (14th August, 1833).

Money claimed on a special agreement in writing, to let judgment go by default, in an action against a mortgagor for principal and interest, and to pay the amount of debt and costs on a named day, if certain securities were then ready, is not a debt certain payable at a time certain within sect. 28; semb. Harper v. Williams, 4 Q. B. 219. The deposit paid on a consideration that has failed may be recovered back with interest, on a previous demand of interest made under it; Mowatt v. Londesborough, 4 E. & B. 1; 23 L. J., Q. B. 177; claiming interest from an earlier date than the date of the demand will not vitiate it. S. C. So interest may be recovered on an over-payment made by a person to obtain his goods from a carrier, on which an illegal charge has been made, if due demand be made under the statute. Edwards v. Gt. W. Ry. Co., 11 C. B. 588; 21 L. J., C. P. 72. A letter of application for a loan till a day certain, not showing on the face of it an obligation to repay, is not an instrument by virtue of which the debt is payable at a certain time. Taylor v. Holt, 3 H. & C. 452; 34 L. J., Ex. 1. A demand of payment of the balance of an account, stated therein inaccurately, is not within the statute. Hill v. S. Staffordshire Ry. Co., L. R., 18 Eq. 154; Ward v. Eyre, 15 Ch. D. 130, C. A. In Duncombe v. Brighton Club, &c. Co., L. R., 10 Q. B. 371, it was held (diss. Blackburn, J.), that interest was recoverable, though the day of payment was not mentioned in the instrument if it could be ascertained

afterwards by reference to some event, e. g., the delivery of goods. This decision is, however, inconsistent with that in Merchant Shipping Co. v. Armitage, L. R., 9 Q. B. 99, 114, Ex. Ch., where it was held that a lump sum payable for freight, under a charter-party, on the delivery of the cargo is not within the section.

A claim indorsed on the writ for interest on the amount claimed thereby from its date till payment or judgment, is not a sufficient demand within sect. 28. Rhymney Ry. Co. v. Rhymney Iron Co., 25 Q. B. D. 147, C. A. A notice of a call made on a contributory of a company being wound up, stating that interest would be charged if payment were not made by a certain_day, is within it. Ex pte. Lintott, L. R., 4 Eq. 184; Barrow's Case, L. R., 3 Ch. 784; see In re Welsh Flannel and Tweed Co., L. R., 20 Eq. 360; as to interest on calls on forfeited shares, see Stocken's Case, L. R., 5 Eq. 6.

Interest is not payable under sect. 29, under a policy of insurance, in respect of a delay in payment occasioned only by there being no person who could give a discharge for the amount thereof. Webster v. British Empire, &c. Assur. Co., 15 Ch. D. 169, C. A. Nor in an action brought against an executor for the proceeds of the plaintiff's minerals, severed and converted by his testator. Phillips v. Homfray, 44 Ch. D. 694. As to interest on a solicitor's bill, vide ante, p. 486.

By 17 & 18 Vict. c. 90, s. 1, all Acts or parts of Acts of Parliament mentioned in the schedule, and "all existing laws against usury," are repealed. By sect. 3, where interest was payable on August 10th, 1854, on any contract, express or implied, for payment of the legal or current rate of interest, or where interest was then payable by any rule of law, the same rate shall be recoverable as if the Act had not passed. By sect. 4, nothing is to affect the law relating to pawnbrokers. See Flight v. Reed, 1 H. & C. 703; 32 L. J., Ex. 265, and observations thereon in Rimini v. Van Praagh, L. R., 8 Q. B. 1. The repeal of the usury laws does not, however, deprive the court of the power of relieving expectant heirs from unconscionable bargains. Aylesford, El. of v. Morris, L. R., 8 Ch. 484. See also Bolingbroke v. O'Rorke, 2 Ap. Ca. 814, D. P.

ACTION ON AN ACCOUNT STATED.

By Rules, 1883, O. xx. r. 8, "in every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars, but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings."

To recover upon a claim on an account stated the plaintiff must prove an absolute acknowledgment by the defendant of the plaintiff's claim. A qualified acknowledgment is not sufficient, as "I would have paid you if you had not done so and so." Evans v. Verity, Ry. & M. 239. And an offer of a sum certain, on demand of a larger, is not evidence on the account stated. Wayman v. Hilliard, 4 Moore & P. 729; 7 Bing. 101. An entry in a bankrupt's examination of a certain sum being due to A., is not, it seems, evidence of an account stated between them. Pott v. Clegg, 16 M. & W. 321; and Ex pte. Topping, 34 L. J., Bky. 44, cited post, p. 659, overruling Eicke v. Nokes, 1 M. & Rob. 359. An oral admission of a debt due for goods sold, is evidence of an account stated, though the agreement for the sale was in writing. Newhall v. Holt, 6 M. & W.

662. An agreement by a member of a company, on behalf of the company, to pay the plaintiff's bill in consideration of withdrawing an attachment against the company's funds, is evidence of an account stated in an action against the member as one of the company, though the defendant became a member after the debt was incurred. Barker v. Birt, 10 M. & W. 61. The company in this case seems to have been an unincorporated company or trading partnership. Where a party, examined before commissioners of bankruptcy, admitted that he had received a sum on account of the bankrupt, after an act of bankruptcy, but not that it was a subsisting debt; held that this would not support a count on an account stated with the assignees. Tucker v. Barrow, 7 B. & C. 623.

A promissory note given in 1844 by the defendant for a sum described as interest on a note for 1177. dated 1838, is evidence on an account stated of a subsisting debt of 1177. due in 1844. Perry v. Slade, 8 Q. B. 115. An IO U is evidence of an account stated with the person who produces it, though not named in it, and if another person was meant, the defendant must prove this. Fesenmayer v. Adcock, 16 M. & W. 449. But it may be shown that it was given on a consideration that has failed; as for part of a deposit on a sale which has gone off for want of title. Wilson v. Wilson, 14 C. B. 616; 23 L. J., C. P. 137; and see Berry v. Storey, 2 C. L. R. 815, H. T. 1854, C. P. Where an IO U was given for a stipulated premium, extra the consideration specified in an apprentice deed, which was therefore void by 8 Ann. c. 9, s. 39, yet the master may recover the money under an account stated, the boy having, in fact, served out his full term. Westlake v. Adams, 5 C. B., N. S. 248; 27 L. J., C. P. 271. An account stated may be maintained on an oral agreement of what the balance between the parties is, though one of the items be the price of land sold under an oral agreement, whether the statement be after the land has changed hands; Cocking v. Ward, 1 C. B. 858; or before, if it be shown to have subsequently come into the defendant's possession. Laycock v. Pickles, 4 B. & S. 497; 33 L. J., Q. B. 43. See also Wilson v. Marshall, post, p. 598. But there must be an admission of a debt due, in order to support an account stated therefore when the defendant orally agreed to purchase a lease of the plaintiff, and gave as deposit an IO U for 257., and afterwards refused to complete the purchase; it was held that the IO U, taken with the circumstances under which it was given, was no evidence of an account stated. Lemere v. Elliott, 6 H. & N. 656; 30 L. J., Ex. 350. See Buck v. Hurst, L. R., 1 C. P. 297, ante, p. 573.

In an action by the plaintiff as executrix, where the defendant, on being applied to by her for the payment of interest, stated that he would bring her some, it was held that, though this was an admission that something was due, still, as the nature of the debt did not appear, nor whether it was due to the plaintiff as executrix, or in her own right, nor that it was one for which assumpsit would lie, the plaintiff was not entitled to recover even nominal damages. Green v. Davies, 4 B. & C. 235; and see Teal v. Auty, 2 B. & B. 101. And, generally an account is not stated unless some specific sum is agreed upon; therefore a letter asking the plaintiff "to hold the defendant's cheque till Monday, when I will send the amount," the amount of the cheque being unknown, will not support this claim. Lane v. Hill, 18 Q. B. 252; 21 L. J., Q. B. 318. If it appear that the account is stated of a debt due from a third person to the plaintiff, which defendant promised to pay without any consideration, this is a defence. French v. French, 2 M. & Gr. 644; Wilson v. Marshall, I. R., 2 C. L. 356, Ex. Ch. So where the defendant gave a written promise to pay a debt due from her deceased husband to the plaintiff's