
    
      Benj. F. Sims, Ex'or of Nathan Sims, vs. Milton Goudelock.
    
    One who is indemnified, by contract, against a particular debt, and is afterwards compelled by the creditor to pay it, is entitled, in his action founded on the contract of indemnity, to recover interest on the amount paid, from the time of payment; and his declaration need not contain a count for the interest.
    So, also, he may, as a general rule, recover any costs he may have been compelled to pay, and interest thereon.
    A count for interest is unnecessary where the law gives it as a matter of course.
    
      Before Gloved, J., at Union, August, Extra Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was a new trial granted on the plaintiff’s motion. The following report embraces so much of the evidence as is necessary to understand the grounds of appeal on which the plaintiff relies for another new trial.
    “ The action was assumpsit, brought to recover money which the plaintiff, as executor, had paid, and which he alleged the defendant is legally bound to reimburse. ‘The counts are in-debitatus assumpsit for money paid, and special counts on promises to indemnify,’ &c.
    
      “ Nathan Sims, in his lifetime, had advanced money, and had assumed pecuniary responsibilities for the children of Reuben Sims, and for a time managed their property. About 1842, and after a partition of their negroes, Reuben Sims’s children met for the purpose of making a settlement with Nathan Sims, who then exhibited an account showing his management of their business, and the amount which he had advanced on their account. A paper was produced in Nathan Sims’s handwriting, purporting to be a statement of the accounts between him and Reuben Sims’s children, and the respective liabilities of the children for the balance due to him. Opposite J. J. Caldwell’s note, which was then computed to amount to four hundred and fifteen dollars, is the letter G., which, it is alleged, was intended for M. Goudelock, the defendant, who had married a daughter of Reuben Sims, and who, it was said, had assumed to pay this amount. The witnesses do not prove either the assumpsit of M. Goudelock or the identity of the paper; but a copy of this paper was filed, and marked as an exhibit, in a bill in equity, wherein Benjamin F. Sims, executor of Nathan Sims, was the complainant, and M. Goudelock and the other children of Reuben Sims were defendants. The answer of M. Goudelock admitted that the exhibit filed with the bill was a copy of a paper made and submitted by Nathan Sims, and that the children did agree to pay according to said exhibit.
    
      “ The promissory note drawn by Nathan Sims in favor of J. J. Caldwell was for $347 35, dated 6th January, 1840, and payable one day after. An action was commenced on this note against the plaintiff, as executor of Nathan Sims, and judgment entered 9th April, 1849, who paid in satisfaction of the judgment, at sundry times, $>623 86.
    “ I instructed the jury that the extent of the defendant’s liability was shown by the exhibit filed in the Court of Equity, which was there stated to be four hundred and fifteen dollars— that he was not liable for costs incurred in the case of J. J. Caldwell vs. B. F. Sims, executor, nor would I advise them to allow interest, eo nomine, on that amount.
    “ The jury found four hundred and fifteen dollars for the plaintiff.”
    The plaintiff appealed, and now moved for a new trial, on the ground of error, in the charge, respecting the costs and interest.
    
      Thomson, for the motion.
    
      Herndon, contra.
   The opinion of the Court was delivered by

O’Neall, J.

When this case was before the Court at a former term, (6 Rich. 100,) it disposed of the questions affecting the general liability of the defendant. His contract to pay the debt to Chancellor Caldwell, was there put on the same footing as an indemnity. The questions now presented are, 1st. Is the defendant liable to pay interest on the' money paid by the plaintiff, in discharge of the debt to Chancellor Caldwell? 2d. Is he liable for the costs, and interest on the same ?

The first question divides itself into two inquiries — 1st, the liability generally; and 2d, is he liable for the interest unless it be counted for ?

That a principal, or one who undertakes to indemnify another, is liable for interest, is too clear to admit of doubt. In Schmidt vs. Limehouse, 2 Bail. 276, it is said by the Judge delivering the opinion, “ I admit that for money had and received, money lent, or paid, interest is generally recoverable from the day on which it is received, lent, or paid ; for it is at that moment that the law imposes the duty to pay it, and it is then due and payable.” This was in conformity (so far as money had and received, and money paid, were concerned) to what Had been ruled and said in Sollee & Warley vs. Meugy, 1 Bail. 620-3, 4. The same thing was repeated in Aiken vs. Peay, 5 Strob. 15-18.

The debt and interest paid to Caldwell constitute the principal, which the plaintiff is entitled to recover, and upon that he is entitled to recover interest from the times at which he respectively paid it.

But it is urged, he cannot recover it, unless he has counted specially for the interest. The general rule is, where the law gives interest as a matter of course, there a count is unnecessary. For then it is a necessary incident of the principal, and follows it as inseparably as the shadow the substance. Where the interest depends upon a contract to pay it, then generally, it must be counted for specially. In this case, on looking at the declaration, it seems to me the plaintiff has actually counted for the interest claimed. But this was unnecessary.

2. The next question is, whether the plaintiff is entitled to recover the costs which he paid, and the interest on the same. If entitled to the costs, it follows from the previous part of this opinion, that he is entitled to interest upon the same as for so much money paid.

In Legare & O'Hair vs. Fraser, (3 Strob. 378-80,) it is said, “ There is nothing in the second ground — the counsel fee, like the costs and expenses incurred, might be recovered, if the plaintiffs litigated in good faith.”

In Cleveland vs. Covington, (3 Strob. 184,) it was held and ruled that the principal is liable for costs paid by his surety. It is very true, if sureties litigate improperly, or if one indemnified cause a suit to be set on foot against him, costs could not be recovered. The defendant here has no cause of complaint; he promised to pay the debt to Chancellor Caldwell, and when it was demanded from the plaintiff, he was called upon for payment, and refused.

If he had to pay a much larger bill of costs than is now demanded, it is no more than what he might expect from such folly.

The motion is granted.

Wardlaw, Withers, Whitner and Glover, JJ., concurred.

Motion granted.  