pay a debt by a bill of exchange or promissory note, and the debtor refuse to give it, he is liable (on the common counts for the debt) to pay interest from the time when the instrument, if given, would have become due (m).

But, if the delay of payment of a bill or note has been occasioned by the default of the holder, or the claim has lain dormant for a long time without demand by him, the jury may refuse to allow interest (n). And if, at the time a bill fall due, there be no person legally authorized to receive it, as if the holder be dead intestate, and administration be not then taken out, even the acceptor shall be charged with interest, only from the time the administrator demands payment of the principal (0).

Money awarded to be paid on a particular day carries interest from that day, if duly demanded thereon (p), provided the plaintiff proceed by action; aliter if he proceed by attachment (q). And it has been allowed, on the affirmance of a judgment on a promise to execute a mortgage, &c. (r). And a bond, conditioned for the payment of money, impliedly carries interest from the time of the obligor's default (s).

In all cases interest is allowed, if there be a contract for the payment thereof. And an agreement between the parties that it should be paid, may be inferred from the course of dealing between them; as if it has frequently been charged and paid without objection, in former and similar accounts (t). The invariable custom or usage in any particular trade or business to charge interest, may also evidence and establish a contract to allow it between parties having transactions therein (u). And even compound interest is allowed, if the claim be supported by the

(m) De Bernales v. Fuller, 2 Camp. 428, note; Marshall v. Poole, 13 East, 98; Slack v. Lowell, 3 Taunt. 157; Middleton v. Gill, 4 id., 298; Sutton v. Morgan, 5 id., 758.

(n) Cameron v. Smith, 2 B. & Al. 308; Du Belloix v. Lord Waterpark, 1 D. & R. 16. When not allowed after tender, &c.; Dent v. Dunn, 3 Camp. 296.

(0) Murray v. The East India Company, 5 B. & Al. 204.

(p) Pinhorn v. Tuckington, 3 Camp. 468; Johnson v. Durant, 4 C. & P. 327.

(q) Churcher & Stringer, 2 B. &

Ad. 777.

(r) Anonymous, 4 Taunt. 876; Page v. Newman, 9 B. & C. 381, per Tenterden, C. J.

(s) Furquhar v. Morris, 7 T. R. 124; Hogan v. Page, 1 B. & P. 337. But not beyond the penalty; Bromley v. Goodere, 1 Atk. 75.

(t) Calton v. Bragg, 15 East, 223; Bruce v. Hunter, 3 Camp. 467; Denton v. Rodie, id., 496; Gwyn v. Godby, 4 Taunt. 346; Eaton v. Bell, 5 B. & Al. 34.

(u) Id.; see Ikinv. Bradley, 2 Moor, 206. See ante, 18.

known usage or custom of trade, or the particular course of dealing between the parties (x). But it seems that a customer is not bound or affected by the practice of his bankers, to charge interest upon interest, by making rests in their accounts at stated intervals, unless it be proved that he was aware that such was their custom (y).

5thly. ACCOUNT STATED.

Form of the count.-The form of the common count, upon an account stated, or balanced account, is that the defendant was indebted to the plaintiff in a certain sum for money found to be due from the defendant to the plaintiff (z), upon an account stated between them, and in consideration thereof promised payment. This form should always be introduced in an action upon a simple contract, for the recovery of a pecuniary demand.

Nature of the count.-It is not necessary, in support of this count or form, to shew the nature of the original debt, or to prove the specific items constituting the account. The usual proof is, that there existed some demand between the parties, respecting which an account was stated (a), and that a balance was struck and agreed upon (b); but it suffices to prove that the defendant expressly admitted that a certain sum was then due from him as a debt, without shewing the origin or nature of the claim (c).

Nor is it essential that there should be cross or reciprocal demands between the parties, or that the defendant's acknowledgment that a certain sum was due from him to the plaintiff should relate to more than a single debt or transaction (d). An I. O. U. is evidence of the amount admitted to be due, upon an account stated (e). An admission by the defendant that so much was agreed to be paid to the plaintiff, for the sale of standing

(x) Caliot v. Walker, 2 Anstr. 495; Scholey v. Ramsbottom, 2 Camp. 486, note; Bruce v. Hunter, 3 Camp. 467; Eaton v. Bell, 5 B. & Al. 34; Sackett v. Bassett, 4 Madd. 64, note; Moore v. Voughton, 1 Stark. R. 487; Newal v. Jones, Moo. & M. 449; 4 C. & P. 124, S. C.

(y) Moore v. Voughton, 1 Stark. R. 487.

(z) In Brinsley v. Partridge, Hob. R. 88, in error, the Court held that it need not be shown in the declaration what was the ground or nature of the original debt, as it was confessed good by the accounting.

(a) Whitehead v. Howard, 5 Moore,

105; Green v. Davies, 4 B. & C. 235, 242; 6 D. & R. 306, S. C.

(b) Trueman v. Hurst, 1 T. R. 42, note; Prouting v. Hammond, 8 Taunt. 688.

(c) Ashby v. Ashby, 3 M. & P. 186. The action was on an unstamped note proved to have been given for goods sold. The defendant had admitted, without adverting to the note or goods, that he owed the creditor a named sum: held, that the action was maintainable on the account stated.

(d) Highmore v. Primrose, 5 M. & Sel. 65.

(e) Payne v. Jenkins, 4 C. & P. 324. No stamp necessary, ante, 96.

trees, made after the trees had been felled and taken away by the defendant, will support a count upon an account stated, though not for goods sold and delivered (f). But where the plaintiff demanded 407., upon an agreement by the defendant as an incoming tenant to pay for growing crops, and the defendant offered 17., it was held that this was not evidence to support a count upon an account stated; for that there was no settled or agreed balance, no acknowledgment of a debt, but a mere offer to purchase peace(g). And Tindal, C. J., said, that in Knowles v. Mitchel, certain trees had been felled, to which the defendant expressly referred.

In the case of an account stated in reference to a demand upon a bill of exchange or promissory note, the plaintiff must show that the defendant admitted that the amount acknowledged to be in arrear was due to the plaintiff; or must show he is the party entitled to receive the money the defendant admits to be payable. Jardine v. Payne (h) was an action of assumpsit by the plaintiff, as indorsee of a bill of exchange for 571. 10s., and upon an account stated, against the defendant as acceptor. The bill was upon an insufficient stamp; and the plaintiff, in order to recover upon the account stated, produced two letters written by the defendant after the dishonour of the bill. In the first, which was dated on the day the bill became due, and which was addressed, "To the gentleman who calls with the bill," the defendant expressed his regret that it was not in his power to take up the bill for 571. 10s. In the second letter, which was in answer to one from the plaintiff's attorney, requiring payment of the defendant's acceptance in favour of Tilbury for 571. 10s., the defendant said, "if he had had the money he should not have let his acceptance be dishonoured;" and he proposed that Tilbury should draw upon him in a month. It was held, that these letters did not amount to an acknowledgment that the sum of 577. 10s. was due to the plaintiff, but merely that it was due to the person legally entitled to the bill; that it was necessary, therefore, for the plaintiff to prove an indorsement of the bill; and that the bill, not being on a sufficient stamp, could not be looked at by the jury for the purpose of ascertaining this fact.

(f) Knowles v. Mitchel, 13 East, 249; Pinchon v. Chilcott, 3 C. & P. 236. See Elmes v. Wills, 1 H. Bla. 64; Prouting v. Hammond, 8 Taunt. 688. Party stating he will call and settle, when evidence of an account

stated; Clarke v. Glennie, 3 Stark. R.

10.

(9) Wayman v. Hilliard, 4 M. & P. 729; 7 Bing. 101, S. C.

(h) 1 B. & Ad. 663. See Singleton v. Barrett, 2 C. & J. 368, past, 512.

If the plaintiff declare upon an account stated with him in a representative character, namely, as executor, it must appear that the defendant admitted that the debt was due to the plaintiff in that character. In Green v. Davies (i), the plaintiff sued as executrix on an instrument, void for want of a bill stamp, in the following form, "Received of Mr. B." (the testator) "1007., which I promise to pay on demand, with interest." The defendant, on being applied to by the plaintiff for payment of interest, stated that he would bring her some on the following Sunday. It was held that, although this was an admission that something was due, still, as it did not appear what the nature of the debt was, or that it was due to the plaintiff as executrix, or in her own right, or that it was one for which assumpsit would lie, the plaintiff was not entitled to recover even nominal damages; and a nonsuit was entered.

In Tucker v. Barrow (k), the plaintiffs sued as assignees upon an account stated with them in that capacity. They proved that the defendant was examined before the commissioners, and admitted that he had, after the act of bankruptcy, received money from the bankrupt. It was decided that there was no admission of a subsisting debt payable to the assignees; but merely that, at a certain time, a sum had been received; and that the action was not maintainable upon the account stated. And Littledale, J., inclined to the opinion that an admission obtained under a compulsory examination, was not evidence of an account stated.

It appears that, to support this count, it must in general be shown not only that the defendant admitted a debt, but also, expressly or by reference, acknowledged that some specific sum was due from him (7). But where, in assumpsit for goods sold, the defendant said that he owed the debt, and that the plaintiff had applied to him to pay him, and that he would do so as soon as he could, but did not mention any sum, and the plaintiff could not prove the amount due; Abbott, C. J., held that, on this evidence, the plaintiff was entitled to a verdict with nominal damages (m).

Where the plaintiff does not prove any consideration upon which the defendant became indebted to him, the plaintiff cannot recover upon a count upon an account stated, merely by showing

(i) 6 D. & R. 306; 4 B. & C. 235. See Ashby v. Ashby, 3 M. & P. 186, ante, 507, note (c).

(k) 7 B. & C. 623; 1 Man. & R. 518. (1) Bernasconi v. Anderson, Moo. &

M. 183. See Kennedy v. Withers, 3 B. & Ad. 767.

(m) Dixon v. Deveridge, 2 C. & P. 109. See Dickenson v. Hatfield, 5 C. & P. 46.

that the defendant, in answer to a demand of a specific sum, said that he would have paid it if the plaintiff had not done certain acts, &c. The acknowledgment must be unqualified (n).

If moneys be due from a feme sole, and she marry, and her husband state an account with the creditor and promise to pay the balance, he is not liable to be sued alone on this account and promise; there being no new consideration to fix him separately, and the mere account not altering the nature of the original debt for this purpose (o). But there are some instances in which the settlement of an account and a promise to pay the balance will, to a certain extent, afford a new cause of action, and confer a legal right which did not before exist in regard to the original debt. Thus, in general, one partner cannot sue his co-partner at law for his share of the profits, &c.; but if a final account be stated, and one partner expressly promise to pay the balance found to be due from him, he may be sued at law by his co-partner for the amount (p).

So, where A. was indebted to B., and afterwards C. entered into partnership with B., and A. contracted a further debt with both, and then settled an account with both, as well upon what was due to B. before his partnership with C. as upon the debt contracted afterwards; it was held, that B. and C. might join in an action on an account stated (q).

The defendant agreed with the plaintiff, by parol, that, if she would take a lease of certain premises belonging to him, he would pay her 207. towards putting them in repair. The lease was afterwards executed and accepted by the plaintiff, who took possession and repaired the premises, and on payment of the first quarter's rent demanded the sum of 207. from the defendant, who said he would pay it when the next quarter's rent became due. It was held, that such acknowledgment of that sum being due, raised a moral obligation on the defendant to pay, and that the plaintiff was entitled to recover upon an account stated; although it was objected that parol evidence, as to the terms on which the lease was to be granted, was inadmissible by the Statute of Frauds (r).