
    Dow v. Adam’s Administrators.
    Argued December 4th, 1815.
    1. Rent — Interest on. — Though interest ought not to be given, as of course, in actions for the recovery of rent in arrear, it may nevertheless be given under circumstances to be judged of by the jury; and, in case of a general verdict allowing interest, it shall be intended that sufficient circumstances existed to justify the allowance thereof.
    2. Same — Same—Special Verdict. — But if the jury state the circumstances in a special verdict, the court should disallow the interest, if under those circumstances, it ought not to be allowed.
    3. Same —Same — Always Sufficient Distress on Premises. — Interest on rents in arrear ought not to be allowed, the circumstances being that there always were etlects on tlie premises, liable to distress, suflicient to have satisfied the rents, which were not paid, though demanded by the landlord.
    ♦¡¡•■See Cooke v. Wise; and Newton v. Wilson, 3 H. and M. «58 — 470.
    William Wilson and William .Herbert, surviving' administrators of Robert Adam deceased, brought their ^action for covenant broken against Janet Dow, assignee of Peter Dow, in the Superior Court of law of Loudoun county. The declaration was upon an indenture, whereby Robert Adam, on the 13th of December, 1785, demised to Peter Dow, his heirs and assigns forever, five tracts of land ; — the said Peter yielding and paving for the same, to the said Robert, his heirs and assigns, certain rents, therein reserved, on the days and years therein appointed. The breach assigned was, that, after the death of the said Robert Adam, and after the said Peter Dow had conveyed the lands in question to the defendant, she failed to pay to the plaintiffs the rents which became due for the years ending on the 25th days of December, in the years 1804 and 1805.
    Issue being joined on the plea of covenants performed, the jury found for the plaintiffs, and assessed their damages to the sum of S1110 67 cents, whereof $800. the principal sum due, was to bear interest from the 1st day of April 1813, until paid, at five per centum per annum ; “if the court should be of opinion that it was competent for the jury to allow interest on the payments reserved under the indenture ; there having always been effects on the premises charged, liable to distress, sufficient to have satisfied the said payments ; and the said payments having been demanded by the plaintiffs of the defendant, and not having been satisfied. If the court should be of opinion that, under the above circumstances, it was not competent for the jury to allow interest on the said payments reversed as aforesaid, they then assessed the plaintiff’s damages to eight hundred dollars.”
    The Superior Court of law entered judgment for the $1110 67 cents, with interest as above mentioned ; from which the defendant appealed.
    
      
      Rent — interest on. — interest cannot be recovered as of course in actions for the recovery of rent, but may be given, under circumstances tobe judged of by the jury. Mickie v. Lawrence, 5 Rand. 571, 573, 574, citing the principal case. In this case. Judge Green said (p. 574), "The question, whether interest is of course recoverable on rent in arrear, has been repeatedly and fully considered in this court in the cases of Cooke v. Wise, 3 Hen. & M. 463; Newton v. Wilson, 3 Hen. & M. 470, 500; Dow v. Adam. 5 Munf. 21, and other cases: and the rule is established by those cases, that it is not recoverable of course, but may be allowed under circumstances justifying such allowance.”
      In White v. Gleason Mfg. Co., 8 Fed. Rep. 919, it is said that the early Virginia cases held that the question of the recovery of interest on rent in arrears is within the discretion of the court or jury to whom the issue of the amount of recovery is submitted, and the principal case is cited as authority for the assertion.
      See also, foot-note to Graham v. Woodson, 2 Call 249; foot-note to Kyle v. Roberts, 6 Leigh 495; mono-graphic note on "Interest” appended to Fred v. Dixon, 27 Gratt. 541; monographic note on “Landlord and Tenant” appended to Mason v. Moyers, 2 Rob. 606.
    
    
      
       Sanie — Same—Sufficient Distress on Premises. — In Mercer v. Beale, 4 Leigh 198, Tucker, P., citing the principal case said, that if interest is not allowable upon rent where there is sufficient distress upon the premises, because the landlord always has a remedy in his hands, there would seem to be equal reason for refusing it to a creditor, who,, instead of enforcing his j udgment by execution, when his debtor is full handed and his property easily reached, proceeds to harass him by a new action upon his judgment.
    
   Saturday, January 27th, 1816.

JUDGE ROANE

pronounced the court’s opinion, with an observation of his own subjoined, as follows:—

*“The court is of opinion, that although interest ought not to be given, as of course, in actions for the recovery of rent in arrear, it may nevertheless be given under circumstances to be judged of by the jury ; and that, in case of a general verdict allowing interest, it shall be intended that sufficient circumstances existed to justify the allowance thereof. — The court is further of opinion that the circumstances stated to the court in this case by the jury are not sufficient to justify the verdict, so far as it allows interest; and that, therefore, the appellee should only recover the principal sum found by the jury. The Judgment is therefore to be reversed, and entered for the principal sum. I will take the liberty to add, (speaking for myself only,) that, while I concur in the above judgment in every other point, I doubt, as at present advised, whether the sufficiency of these circumstances, to justify a refusal of the interest, ought not to be left to the jury in exclusion of the power of the court, under the spirit of the decision of this court in the case of M’Call v. Turner. ” 
      
       1 Call 133.
     