
    
      Benjamin Johnson ads. William J. Bennett.
    
    Where the jury allowed interest on an open account, there being no proof of any custom to pay interest on plaintiff’s demand, nor of any agreement to that effect, except that a witness examined had inferred, from a conversation with the defendant, that he did not dispute his liability to pay interest from the expiration of a year; anew trial Was ordered,'unless plaintiff released the amount of interest included in his verdict.
    
      Tried before the Hon. Jacob Axson, Recorder, in the City Court of Charleston, November Term, 1841.
    This was an action of assumpsit on an open account for lumber sold and delivered. ' The only question was about the interest. Mr. Campbell, the only witness examined, stated that, before suit commenced, he had an interview with defendant. The account was presented to him, containing a charge of interest from the expiration of six months. Defendant objected to this, but proposed, if suit was not commenced, and time allowed, he would give his obligation, including the interest. This proposition was not acceded to; but Mr. Campbell stated that defendant’s liability to pay interest from the expiration of a year was not disputed by him; but, on the contrary, in the whole conversation, that seemed to be admitted. He so regarded it.
    His Honor, the Recorder, charged the jury that interest was not chargeable on an open account, unless in pursuance of a custom or an agreement. There was no custom or agreement positively proved, but they might infer, from the evidence, either that there was a custom, of which the defendant was aware, or that there was an agreement to that effect.
    He also charged, that in no view of the testimony could they be authorized to allow interest from the expiration of six months.
    The jury rendered a verdict for plaintiff, for the amount of the account, with interest from the expiration of a year.
    The defendant appealed, and moved that the verdict might be set aside, and a new trial awarded, on the following grounds:
    1. That there was no evidence of any custom or agreement to pay interest on the plaintiff’s demand; and that his Honor therefore erred in charging the jury that they might, nevertheless, infer either such custom or an agreement.
    2. That the proposal of the defendant to give an obligation to pay interest was conditional, upon time being allowed and no suit commenced; and the proposal having been distinctly refused by the plaintiff, it cannot avail to entitle him to interest, and at the same time to charge the defendant with the costs and expenses of an immediate action besides.
    3. That the plaintiff is not entitled to interest, and the verdict allowing it is contrary to law and evidence.
    Baily, for the motion; Memminger, contra.
   Caria, per

Butler, J.

The account on which this action was brought is not an interest-drawing demand. It cannot be pretended, from the evidence at the trial, there was any such custom established as would control the contract under the general laws of the land. Nor was it proved that the defendant himself said an? thing expressing or acknowledging his liability to pay interest. The inference of the witness has been substituted for the promise of the defendant. As the case was submitted under the instructions of the presiding Judge, the jury were at liberty to infer a promise to pay interest from the conclusion of the witness, without his detailing the declarations of the defendant from which, such conclusion was drawn. We think the Judge should have directed the jury that they were not at liberty to find interest from such evidence. A new trial is therefore ordered, unless the plaintiff will release the amount of interest included in his verdict.

Richardson, O’Neall, and Wardlaw, JJ., concurred.  