
    Duke of Richmond & Al. v. Milne’s Executors & Al.
    When legal interest is the legal consequence of the debt or obligation without stipulation, a demand, of the principal is a demand both of principal and interest; the one necessarily follows tho other, even when the latter is not claimed in the petition.
    So, interest on a particular legacy is due from the day of demand of its delivery, arising [029] mora, depending on the lapse of time tho legatee is deprived of the use of it; being a legal consequence of tho debt or obligation and maybe allowed without being specially claimed in tho petition.
    Interest is due on a legacy for a specific sum of money from judicial demand and follows as a legal consequence of the debt or principal obligation.
    Ox a rehearing in part.
    
      JSustis & T. Slidell, of counsel for the plaintiffs,
    obtained a rehearing on the ground that interest had not been allowed on the amount of the legacy claimed from the time it was demanded. They argued as follows:
    1. The court considers that interest cannot he included in the judgment because it was not claimed in the petition. The court is pleased to acknowledge the soundness of the principle that interest is due on a legacy like this, from the day of the demand. The provisions of the Oode leave this beyond all question.
    2. In every principle of equity the plaintiffs are entitled to interest. The succession was left without a debt, there were ample funds to pay it, and the residuary legatees and the absent heirs were, with the executors, their antagonist parties, resisting the payment of the legacy. The law and equity is in favor of the claim, its allowance then is a mere matter of practice.
    3. A suit for interest which is due by the effect of law independently of tho principal demand, would, to say the least, he an unusual proceeding.
    The decision on this point, which was not made by the opposite counsel in argument, is believed to he contrary to the long established practice as settled by the decisions of this honorable court.
    
      The article of the Oode of Practice, No. 553, has received a construction which counsel was certainly justified in adopting.
    4. In the case of Daquin and others v. Coiron and others, reported in [330] 8 Mart. Reports, N. S. 608, the rule of practice on the subject was considered as established after an elaborate discussion by distinguished counsel. The court says: “ The fourth point relates to the interest allowed by the judgment. It is objected th,at it was not claimed in the answer, and that it was allowed on a sum not liquidated. The 553d article of the Code of Practice declares that interest shall not be allowed by the judgment unless the same has been expressly claimed, and then only in cases in which the law permits such interest to be stipulated.
    5. “ We do not understand this provision to apply to cases where the interest is a legal consequence of the obligation, on which suit is brought. It was made, as the last clause of the article shows, for those cases where the pa/yment of interest was stipulated and where interest could not be given without that stipulation. In such cases, where the petition, or claim in reconvention, as the case may be, only asks for an execution of part of the contract, the judgment cannot go beyond the demand in the pleadings.
    6. “ But when the interest due, is a legal consequence of the debt, without any stipulation, a demand of the principal is a demand of both principal and interest; the one necessarily follows the other. The amount claimed here was sufficiently liquidated, and we do not see that in this part of the judgment any error was committed.”
    
      L. C. Duncan, for the asylums and legatees,
    insisted that what is not demanded cannot be allowed; and not having amended the petition in time, the plaintiffs are now concluded.
    
      Hoffman, for the absent heirs,
    was of opinion that it was now too late to demand interest.
    
      Canon, for the executor,
    submitted the case to the court; the,executor having no interest to oppose the execution of the will.
   Simon, J.

delivered the opinion of the court.

[331] On the application of the plaintiffs’ counsel, a rehearing was granted on the sole question whether legal interest should be allowed on the amount of the legacy from the day of the judicial demand of its payment or delivery, although such interest was not claimed in the petition.

This interest was disallowed in our first judgment, because the petition contained no prayer to that effect, but after an attentive and mature reconsideration of the question, we have been prompted to come to a different conclusion.

It is true that the art. 553 of the Oode of Practice, provides that “ interest shall not be allowed by the judgment, unless the same has been expressly claimed, and then, only in cases in which the law permits such interest to be stipulated.” But this article has received from this court in the case of Daquin et al. v. Coiron et al. 8 Mart. N. S. 608, the same construction which is contended for by the plaintiffs’ counsel; and which he was clearly justified in adopting, when he instituted this action. Our first impression was that this court had gone too far in establishing an exception to a rule which appears to be general in its terms; but from a closer examination, we feel convinced that its application ought to he limited to cases in which conventional or stipulated interest is sought to he recovered without having' been demanded in the petition; with this view of the question, we are not disposed to deviate from the doctrine already established in our jurisprudence, that “ when the interest is a legal consequence of the debt or obligation, without any stipulation, a demand for the principal, is a demand of both principal and interest; the one necessarily follows the other.” Indeed, at the time that this suit was instituted for the recovery of the legacy, no interest was clue; consequently it could not he considered as being any part of the demand which might either be remitted or abandoned ; Code of Practice, arts. 1S6 and 157; such interest was to accrue subsequently, subject to its amount being increased in proportion to the delay occasioned by the refusal of the executors to comply [332] with the object of the principal demand; and the article 1619 of the La. Code, says positively that “ the particular legatee is entitled to claim the proceeds or interest of the thing bequeathed, from the day of the demand of its delivery, or from the day on which that delivery was voluntarily granted to him.” This interest, arising ex mora, depends merely upon the lapse of time during which the legatee has been deprived of the use and enjoyment of the legacy after his demand; and we are satisfied that in such case, the interest being a legal consequence of the demand of the debt or obligation on which the suit is brought, it may he allowed without its being specially claimed or prayed for in the petition. We conclude, therefore, that the plaintiffs are entitled to recover from the testamentary succession of Alexander Milne, deceased, five 'per cent, interest per annum on the amount of the legacy, from the day of the judicial demand thereof until paid; and that onr first judgment ought to he amended accordingly.

It is therefore ordered, adjudged and decreed, that in addition to our previous judgment, the plaintiffs do recover of the estate of Alexander Milne, deceased, five per cent, interest per annum on the amount of the legacy therein mentioned, from the day that the judicial demand thereof was made of the testamentary executors until paid.  