1 Dodge v. Perkins, 9 Pick. 368; Weeks v. Hasty, 13 Mass. 218; Wood guilty of a breach of trust in using money belonging to the estate which they are to administer for their own private profit or advantage, they are chargeable with interest.1 When the claim arises from tort, the form of the action will not preclude the right to interest; and there is no difference in this respect whether the action be assumpsit, or trespass, or trover.2 Thus, it has been held that in an action of trover, interest on the value of the chattels from the time of their conversion may be allowed by way of damages.8
§ 1490. So, also, where there is a breach of contract, the same rule governs4 Thus, where in an action on an agreement for the sale of an estate to recover the deposit, the plaintiff declared specially, and alleged by way of special damage, that by reason that a good title could not be made, he had been deprived of the use of the money deposited, it was held that the plaintiff was entitled to recover interest as special damage, and that having proved the loss of the use of his money, there was no reason why he should not be compensated therefor.5
§ 1491. In all cases where money is received or acquired, or detained by mistake merely, without fraud, interest does v. Robbins, 11 Ib. 504; The Commonwealth v. Crevor, 3 Binn. 121; Ekins v. East India Co., 1 P. Wras. 396; Gillet v. Maynard, 5 Johns. 88; The People v. Gasherie, 9 Ib. 71; Greenly v. Hopkins, 10 Wend. 96; Crawford v. Willing, 4 Dall. 289; Slingerland v. Swart, 13 Johns. 256; Brown v. Campbell, 1 Serg. & R. 179.
1 Schieffeliu v. Stewart, 1 Johns. Ch. 620; Boynton v. Dyer, 18 Pick. 7; Dunscomb v. Dunscomb, 1 Johns. Ch. 508; Piety v. Stace, 4 Ves. 620; 2 Williams on Executors, B. iv. ch. 11, § 11.
2 The People v. Gasherie, 9 Johns. 71; Wilson v. Conine, 2 Ib. 280; Pease v. Barber, 3 Caines, 266; Beals v. Guernsey, 8 Johns. 446. See Ancrum v. Slone, 2 Speers, 594; Suydam v. Jenkins, 3 Sandf. 614.
3 Wilson v. Conine, 2 Johns. 280; Fisher v. Prince, 3 Burr. 1364; Bu-ford v. Fannen, 1 Bay, 273; Fowler v. Shearer, 7 Mass. 24.
4 Hovey v. Newton, 11 Pick. 421. By the English rule interest is not due upon money wrongfully withheld, even after a demand of payment; Page v. Newman, 9 B. & C. 381; De Havilland v. Bowerbank, 1 Camp. 50; De Bernales v. Fuller, 2 Camp. 426; unless the money were payable at a specific time, or unless there were an agreement to pay interest.
5 De Bernales v. Wood, 3 Camp. 258; Dawes v. Swan, 4 Mass. 208; Amory v. M'Gregor, 15 Johns. 24, 38. See, also, Starkie on Evid. 4th Am. ed. p. 791, and note d; Fair v. Ward, 3 M. & W. 26.
§ 1492. So, also, if a party hold money not belonging to him, but it be doubtful to which of two parties claiming it it should properly be paid, interest is not allowed if he retain it bond fide after demand is made, until the question is settled between the parties claimant,2 unless interest be made thereon by the party holding it. A mere stockholder has been held not liable for interest, although he made a profit on the money in his hands.3
§ 1493. Compound interest is never allowed except in special cases in which the parties, by their conduct, or agreement, give a certain portion of the interest already due the character of principal, and make it an original debt. As where there is a settlement of accounts between the parties, and interest is computed up to the time of the settlement; or where an agreement is made therefor, subsequent to the original agreement, and referring to interest already due; or where there is a judgment, or a master's report, which is in the nature of a judgment.4 And on a promissory note payable with interest annually, the holder is not entitled to interest on the annual interest, unless the latter was demanded and not paid when due.5 But an original agreement to allow
1 Jacobs v. Adams, 1 Dall. 52; Brown v. Campbell, 1 Serg. & R. 179; King v. Diehl, 9 Serg. & R. 409; Boston & Sandwich Glass Co. v. Boston, 4 Met. 181.
2 Grattan v. Appleton, 3 Story, 755; Wade v. Wade, 1 Wash. C. C. 477.
3 Jones v. Mallory, 22 Conn. 386.
4 Connecticut v. Jackson, 1 Johns. Ch. 16; Waring v. Cunliffe, 1 Yes. Jr. 99; Dean v. Williams, 17 Mass. 417; Brown v. Barkham, 1 P. W. 652; Wilcox v. Howland, 23 Pick. 167; Cooley v. Rose, 3 Mass. 221; Greenleaf v;. Kellogg, 2 Mass. 568.
6 Ferry v. Ferry, 2 Cush. 97. Shaw, C. J., there said, "It has been repeatedly decided that compound interest is not allowed by law, and it makes no difference that by stipulation the interest is to be paid annually. The contract to pay interest at the expiration of each year is a valid contract, and may be enforced by action. Greenleaf v. Kellogg, 2 Mass. 568; Cooley v. Rose, 3 Ib. 221; Hemes v. Jamieson, 5 T. R. 553. So if a new compound interest in futuro is not binding, because of the avaricious and usurious nature of such a contract.1 note is given for the interest, it is thereby converted into capital, and may rightfully be given with interest. Wilcox v. Howland, 23 Pick. 167. Or if, after interest had become due, an account is stated, making rests, it is lawful. Eaton v. Bell, 5 B. & Ald. 34. So where partial payments have been made in cash, or by rents and profits, or otherwise, the payments are to be first applied to the satisfaction of the interest then due, and the balance only is to go towards the reduction of the principal. Dean v. Williams, 17 Mass. 417; Fay v. Bradley, 1 Pick. 194; Reed v. Reed, 10 Pick. 398. This principle gives the creditor the benefit of compound interest, where payments from time to time have been made, or where after the interest becomes due he obtains security for it, or resorts to an action to enforce the payment.
"But where there has been no payment, demand, or adjustment, it has been repeatedly settled that in ascertaining the amount due on a note made payable with interest annually, simple interest only is to be computed. Hastings v. Wiswall, 8 Mass. 455; Dean v. Williams, 17 Mass. 417; Von Hemert v. Porter, 11 Met. 210. The same rule has been followed in Maine, in a case in which the reasons are very fully stated. Doe v. Warren, 7 Greenl. 48. The same rule is adopted in New York, in equity, and, we believe, at law. Connecticut v. Jackson, 1 Johns. Ch. 13; Van Benschooten v. Lawson, 6 Johns. Ch. 313.