
    *Brooke v. Roane & Co.
    [Thursday, April 19th, 1798.]
    Interest — Change of Rate. — A forthcoming bond given on a judgment which bore only five per cent, interest, shall carry but five per cent., although the bond was taken after the act allowing six per cent.
    This was an appeal from a judgment of the District Court of King and Queen, upon a forthcoming bond. The judgment was for 2061. 10s. 2d. and costs, but to be discharged by payment of 1031. 5s. Id. with interest, to be computed after the rate of 6 per cent, per annum, from the 18th dajr of July, 1797, till payment, and the costs.
    
      
      interest — Rate—Power of Courts to Change. — In contracts for the payment of money interest on the principal sum is a legal incident of the debt and a part of the contract, and wherever there is a contract for the payment of a specified legal rate of interest, whether such rate is fixed by the contract itself or by the law of the place where the contract is made, the obligation of the contract extends to the payment of such interest as fully as it does to the principal sum, and courts have no more power to change the rate of interest thus fixed, than they have to dispense with the enforcement of the contract either in whole or in part. Shipman v. Bailey, 20 W. Va. 146; Pickens v. McCoy, 24 W. Va. 353, both citing, with approval, the principal case; Bent v. Patten, 1 Rand. 25. The principal case is also cited with approval iri Bent v. Patten, 1 Rand. 81, 36.
      
        In Bent v. Patten, 1 Rand. 35, the court decided, that when an action is brought on a note executed while live per cent, was the legal rate of interest, a judgment on such note with interest at six per cent., the legal rate at the date of the judgment, was erroneous. It was held, that the contract fixed the rate of interest the debt should bear until it was paid. See also, Cecil v. Hicks, 29 Gratt. 1, 26 Am. Rep. 391.
      Principal Case. — And in Brooke v. Roane, 1 Call 205, it was held that neither a forthcoming bond, nor the judgment could change the rate of interest fixed by the original contract so as to make the rate of interest conform to the law at the time the forthcoming bond was made or the judgment rendered. See generally, monographic note on “Interest” appended to Fred V. Dixon, 27 Gratt. 541.
    
   PER CUR.

The judgment is erroneous in this: that it is 1 ‘to be discharged by the payment of the sum due on the forthcoming bond, in the proceedings mentioned, with interest thereon at six per cent, instead of five per cent, per annum; the Court considering the said bond not as a new contract, (in which the concurrence of both parties is necessary,) but as a measure legally imposed on the creditor in his pursuit of his execution of the former judgment, which bore an interest of five per cent, only; and which alone the Sheriff could have raised, if the condition of the bond had been complied with, and he had proceeded to sale. ’ ’ The judgment of the District Court must, therefore, be reversed, with costs, and judgment entered for the penalty of the bond, with costs, in the District Court; but’ to be discharged 206 *by payment of 1031. 5s. Id., with interest after the rate of five per cent, per annum, from the 18th day of July, 1797, till payment, and the costs.  