
    A. S. Marvin v. Colin McRae, survivor of C. McRae & Co.
    
    The general count for money had and received, in an action brought upon an interest-bearing demand, carries interest.
    “It -was not necessary to count upon the interest, for it is an incident of money had and received, and does not depend upon an express promise.”
    Before Evans, J., at Marion,-Term, 1839.
    This was an assumpsit, which went to the jury upon the general count, for money had and received, a special count having been overruled on demurrer at a previous term, and the Court of Appeals having determined that, upon this general count, the plain tiff might recover. (See the case in Rice R. 171.) The following statement, upon which the case was now brought up, is extracted from the report of the circuit Judge upon the former appeal.
    “ Mr. Cohen was the only witness, and deposed that Colin McRae and George C. Brown, composed , the. firm of Colin McRae & Co. Brown was arrested in the Federal Court, at the suit of the plaintiff, for a large amount, and transferred to the witness, as the agent of Marvin, many notes, and among them the note which was the subject of this suit, given by C. McRae & Co. to George C. Brown himself. Shortly after-wards, and before it became due, Mr. Cohen saw McRae and informed him that he held this note, and also of the circumstances under which he held it and had obtained it. McRae replied, “ that in the settlement of the concern of McRae & Co. he would retain money enough to pay the note.” Cohen saw him frequently, and he repeatedly made the same promise. On the 17th March, 1835, after the death of Brown, saw him, and asked him for the money. He replied, that he had settled with Brown, and told him that he ( McRae) must retain money to pay this debt. Brown had said, “never mind, allow me to take the money and I will pay the note,” and he, McRae, had permitted Brown to do so. The witness stated that he was induced entirely by the promises of McRae not to proceed against Brown, from whom he might have collected the money. The note was for three hundred and thirty-eight dollars, dated January 9,1831, signed C. McRae & Co., payable to George C. Brown or order, at sixty days, and not indorsed.”
    The jury found for the amount of the note, with interest from the settlement between McRae and Brown, in 1833.
    The defendant, upon appeal, moved to review the former decision of the appeal court; as well as for a new trial, on the ground,
    That the plaintiff ought not to have recovered interest, or damages in lieu of interest, on a general count for money had and received.
    
      
       S. C. before; Rice, 171. An.
      
    
   Curia, per O’Neall, J.

The well considered opinion of this Court, to be found in Rice’s Rep. 171, decided that the plaintiff was entitled to recover. We do not think that we ought to yield to the application to review that decision. The only question which is now to be considered is, whether the plaintiff is entitled to recover interest on the count for money had and received. I have no doubt he is. It was so ruled in Bulow v. Goddard, (1 N. & McC. R. 45;) Barrelli, Torre & Co. v. Brown & Moses, (1 M’C. R. 449.) It is true, that in the first of these cases, the right was put upon the ground of the defendant having forced the plaintiff to pay him money which he was not entitled to receive. In the other no qualification was suggested; though, as it was not necessary to the decision of that case, I concede that it is not conclusive authority. But I think the rule there stated has been ever since followed. If, however, there never had been a decision upon the subject, there could not be room for a well-founded doubt about it. The use of money is always worth the legal rate of interest. He who receives the money of another, is to be regarded as using it, unless it appears that he received it under such a character, or in such a way, that he could not use it without violating his duty. He who receives the money of another without any right to retain it, will not be supposed to keep it without putting it to use. The fact of the party being deprived of that which would produce interest, generally entitles him to demand it. It is so in all cases of contract, where payment of a certain sum is delayed after a time limited by writing. In the action for money had and received, the defendant is considered as in the actual use of the plaintiff’s money, until the contrary appears. The use of it establishes the plaintiff’s right to interest; and it is perfectly immaterial whether a legal implication, or express evidence, establishes the conclusion that the defendant is in the use of it. This action likewise proceeds upon the notion that the defendant withholds from the plaintiff money to which he is entitled. In either of these points of view, the plaintiff is clearly entitled to interest.

■In the case before us, there is still less difficulty, for the demand of the plaintiff against the defendant and Brown was an interest-bearing demand. When he made himself liable for its amount, he took it with all its consequences; and in parting with the fund out of which he had promised to pay it, he deprived the plaintiff of the use of that which would have produced interest to him.

It was not necessary to count upon the interest, for it is an incident of money had and received, and does not depend upon an express promise. Where interest is sought to be recovered upon a book account, its recovery depends upon a promise in fact, and it is, for that reason, necessary to declare on such promise.

Munro, for the motion.

Motion dismissed; Gantt, Richardson, Earle, and Butler, JJ., concurring. 
      
       See 5 Rich. 298; 2 Sp. 30 ; 8 Rich. 291; 7 Rich. 120, 125. An.
      
     
      
       See 7 Rich. 25 ; 2 Sp. 33. An.
      
     