
    *N. Goddard ads. Charles and John J. Bulow.
    Where the words “British weight” in a charter party may have two meanings, it is such a latent ambiguity as to warrant the introduction of parol testimony, to show whether, in commercial usage, it is understood to mean gross or nett weight.
    In a charter party it was stipulated, that “if the vessel entered the port of Lisbon, the voyage should be determined:” the ship arrived at the outer port of Lisbon, and after remaining there a short time, proceeded to another market; whether the stoppage at Lisbon, is such an entry as terminated the voyage, is a question of fact for the jury.
    Wherever a person obtains money by extortion or oppression, or by taking an undue advantage of the situation of a party, or where ex aiquo et bono, he ought not to retain it, an action will lie against him for money had and received, 
      
    
    Although parties are reciprocally bound in a penalty, for the performance of a contract, yet one of them may maintain an action of assumpsit on a subsequent ■ transaction, distinct from and unconnected with the deed.
    Interest may be recovered (in an action for money had and received) on money' where there is proof, or where, from circumstances, it can be inferred that it has been employed; or wherever it has been obtained by fraud, extortion, oppression, &c. 
    
    This cause was tried in the Spring Term, 1815, in Charleston, before Mr. Justice Nott.
    The plaintiffs were the affreighters of the ship Ariadne, of which the defendant was the owner; and this ':<‘was an action for mqney had and receivid, to recover back the sum of $3,985.45, with interest thereon, being so much over-paid, as was contended on the part of the plaintiffs, by them in the manner following:
    
      1. Over freight paid on a cargo of rice and cotton, from Charleston to Lisbon ; having paid on the- gross weight, whereas, by the charter party, they were bound to pay on the nett weight only.
    
    2. Extravagant freight on the same cargo, from Lisbon to Cadiz, which, it was contended, -was extorted from the plaintiff’s agent under 'such circumstances as entitled them to recover it back.
    3. Demurrage of fourteen days, paid at Cadiz at $50 per day.
    It appeared by the charter party, that the plaintiffs were to pay at the rate of five pounds per ton of 2240 lbs. for the rice, and one penny half penny for the cotton, without mentioning nett or gross weight. On their arrival at Lisbon, the supercargo paid on the gross weight, but entered into a written agreement with the captain, that if the charter party should be construed to mean nett weight, the difference should be refunded. The charter party contained the following stipulation : “ The captain is to depart immediately, wind and weather permitting, and proceed on his voyage directly to the port of Lisbon ; but, if Lisbon is in possession of the French, then, and in that case, the said ship is to proceed to Fayal, and there discharge the cargo ; in this case no additional freight is.to be paid ; but, if the affreighters choose to order the vessel to Fayal; when slie could safely discharge her cargo at Lisbon, then an additional freight of one farthing sterling is to be paid per pound.” At the bottom of the instrument, was a note in the following words: “ It is clearly understood and agreed to by the parties that, if the said ship Ariadne enters into the port of Lisbon, that she shall there discharge her cargo, and the voyage shall determine.” The bill of lading was produced, and read without objection. It was signed by the captain, and states, that the freight was to be paid on the nett weight.
    
    x Mr. Brown, the supercargo, swore that they sailed immediately for Lisbon, and arrived at Belem Castle, the 13th December, 1800 ; (Belem Castle is the outer port of Lisbon, about four or five miles below the town.) 'They were not permitted to go up to the town, until they had performed quarantine eighteen days. Lisbon was not then in possession of the French, but they were expected there every day, and there was a duty from fifty to fifty-six per cent, on cotton. He immediateiy gave notice to the captain on the day of their arrival, that he would not sell at Lisbon, but would go to Fayal. He had not, however, then determined to do so, but wished to see Mr. Gold, the consignee. He sent to him that day. He heard from him the next day, but did not see him ; but from the information he received, he determined to go immediately to Fayal, and gave the captain notice to that effect, and requested him to sail immediately. The captain refused to go, until he could see Mr. Gold. Witness assented to his waiting for that purpose. In three or four days they saw him. He advised him to go to Cadiz. Witness declined going to Cadiz; his instructions authorizing him to go to Fayal only. He urged the captain to sail immediately to Fayal, but he refused. He would go no where but to Cadiz, and would not go -there upon any other terms, than two-thirds of the freight from Charleston to Lisbon. The distance to Cadiz was only about half of that to Fayal. The captain would take no less, nor leave it to any one to settle. He therefore had no alternative, but to comply with those terms, or to have the goods put on shore. Mr. Gold considered the price as very extravagant, and the captain himself acknowledged, that, if he had got a better price from Charleston to Lisbon, he could not, in his conscience, have charged so much to Cadiz. One farthing would have been a good price on cotton, and a proportionable sum on ric.e. The ship remained twenty-three days before Lisbon. Witness was continually urging the captain to leave the port; but he refused, until he could go to Lisbon, which he could *not do until after the quarantine. There was no extraordinary risk to-run between Cadiz and Lisbon, to raise the freight. They arrived at Cadiz the 13th January, at the lower harbor. They were not permitted to go up to the town until eight days after the cargo was landed. They might have landed the cargo at the lower harbor, but it was tedious and expensive, as they must have employed lighters. The usual course of trade, therefore, is to go to the upper harbor. The captain waited from the 13th until 19th, for a pilot to take him up to the upper harbor, but could not get one. He therefore took up the ship himself. On the 19th, they began to ufiload. After they had been employed several days unloading, and before they had finished, they were obliged to drop down again to the lower harbor, to avoid the,fire of the French, who were then investing the town. They were thus detained until the 27th of February. The captain allowed him thirty days, after which he charged demurrage, which was paid.
    Two other witnesses were called for the plaintiffs, Mr. Haslett and Mr. M axwell.
    They swore that it was always usual to pay on the nett weight of cotton and rice, and that must have been the meaning of the parties. But cotton frequently contracts a dampness, by which its nett weight at t'he port of delivery is more than the gross weight when shipped. It is very doubtful whether any deduction ought to be made on that account. They also further swore, that the distance from Lisbon to Cadiz was about two hundred miles, that from a farthing to a half penny would be a sufficient freight on cotton, and thirty shillings on rice. But the price must vary according to circumstances. That freight from Charleston to Lisbon and Cadiz was about the same. It was usual at that time to touch at Lisbon, on the way to Cadiz, without any additional charge. The sea risk from Cadiz to Fayal, about the same. Barely stopping at Belem Castle, was not considered an entry into the port of Lisbon. If, however, the vessel was ^'detained there by the supercargo until she performed quarantine, for the purposes of entering and unloading, they would consider the voyage as determined. And indeed any detention of the supercargo for any length of time, as for instance, forty-eight hours, they would consider evidence of his election, otherwise, if the detention was by the captain. They thought, as all the witnesses did, that the freight was at least double what it ought to have been.
    On the part of the defendant, the captain and mate of the vessel were sworn. They swore that the vessel had actually entered the port of Lisbon, and that the voyage was terminated, and the supercargo had concluded to unload there. That the subsequent agreement was made at his request, and solely for his accommodation. That it was with great reluctance the captain yielded to it. That there was no complaint made by the supercargo of extortion or oppression, but on the contrary, they were on good terms all the time, and he admitted that the captain had accommodated him very much in agreeing to those terms; and it was understood on all hands, Mr. Gold concurring, that under existing circumstances, he had made a good bargain; and that he had voluntarily, and without any objection, drawn bills after their arrival at Cadiz, for the freight according to the contract.
    The presiding judge told the jury, that the plaintiffs were entitled to recover back the difference between the sum paid on the gross weight of the rice, and what ought to have been paid on the nett weight; for that the meaning of the parties unquestionably was, that freight should only be paid on the nett weight. With regard to the freight from Lisbon to Cadiz, it depended upon the view they took of the testimony. If they believed the supercargo in preference to the captain and mate, they ought to reduce the freight to a reasonable price, and give the plaintiffs the difference. That the captain had taken an undue advantage of his situation, and had coerced him into a most unconscionable bargain, and that the defendant ought not to be ^permitted to retain money acquired by such means. If, on the other hand, they believed the captain and mate, the contract was a fair one, and the plaintiffs ought not to recover.
    With regard to the demurrage, the contract appeared to have been made, and the money paid voluntarily by the supercargo. He had put his own construction on the agreement, and the money ought not to be refunded. It was also further stated to the jury, that as to the freight of the cotton, it was so doubtful whether the nett weight in England would not have been equal to the gross -weight in Charleston, perhaps the testimony, would not authorise them to find for the plaintiff on that account. The presiding judge also instructed the jury, that if they found for thé plaintiffs, they might give them interest on the money.
    The jury found a verdict for the plaintiffs, on the two' first items of their demand, with interest, and for the amount paid for demurrage during the time the vessel lay at quarantine at Cadiz.
    A new trial was now moved- for, on several grounds, which will appear in the opinion of the Court.
    
      
      
        Moses vs. M’Farland, 2 Bur. 1005, and see Cooper’s Justinian, 583 and 595, in notes.
    
    
      
      
        Pease vs. Barber, 3 Caine’s Rep. 266. Robinson vs. Bland, 2 Bur. 1077. The People vs. Gasherie, 9 John. 71. Orford vs. Churchill, 3 Ves and Beame’s Rep. 59. Laws Plead. in Assump. 488, R.
    
   The opinion of the Court was delivered by

Nott, Ji

The motion for a new trial in this'case, is predicated on several misdirections of the presiding Judge, on the points of law, and errors of the jury in matters of fact. But I believe the whole case may be considered under the question of misdirection, except that part which relates to the credibility of the witnesses. But as that was a matter for the consideration of the jury,- the Court consider it as settled by their verdict ; for although there was two witnesses to one, yet the testimony of one credible witness is worth more than that of two who are not entitled to belief. And it is within the province of the jury to give it that preference if they think proper. Considering the facts settled by the verdict, I will proceed to the questions of law submitted in the brief.

*A new trial is asked for on the ground of misdirection of the judge.

1. In telling the jury that certain bills of lading, signed by Captain Burrows, and specifying the weight of the cargo to be nett weight, were good evidence to explain the charter party, which specifies only “ British weight,” without saying gross or nett.

2. In stating to the jury, that if they believed the supercargo, the freight from Lisbon - to Cadiz was excessive, and might be reduced, though the said supercargo paid the same after a full delivery of the cargo, when there could be no coercion on the part of the captain, upon which ground alone it is pretended that payment can be recovered back in this action.

3. For directing the jury to give interest on some of the items, whereas the Constitutional Court in the case of Smith and Taylor, have determined that interest is not recoverable in an action for money had and received.

4. For stating to the jury that the supercargo, under the charter party, had a right, after entering the port of Lisbon, to order the ship to go to Fayal.

The part of the charter party, to which it is necessary to recur in considering the first ground, is in the following words: “ The affreighters oblige themselves immediately and without delay to proceed, &c., to pay five pound British sterling per ton of two thousand two hundred and forty pounds, for the rice, and one penny halfpenny per pound for cotton, all British weight.” The rule of law to which our attention is so frequently called, that parol evidence cannot be admitted to contradict, add to, or vary the terms of a will, deed or other written instrument, is admitted, and has lately been recognized in its fullest extent by this Court in several cases; and although the evidence received in this case was written, yet it is upon the principle that inferior evidence ought not to be admitted to control that of a higher nature, that it is contended it ought to have been rejected. But there is another rule of law equally well established, that a latent ambiguity in a deed may be removed by parol evidence ; and if the word “weight,” *is susceptible of two meanings, such evidence was admissible, to ascertain in which sense, according to commercial usage, it ought to be understood in this case. And that it is capable of two meanings, I shall give no other evidence, than that the learned gentleman who made out this brief^ has made use of the terms, “ gross” and “ nett,” as applicable to it. To determine, therefore, whether the price to be paid was on the gross or nett weight, the introduction of such evidence was unquestionably proper but even if that evidence should be rejected, the fact which it went to support, was sufficiently established without it, by two very credible witnesses. Having satisfactorily shown the defendant was entitled to receive payment on the nett weight only, the plaintiffs were entitled to recover back the difference between what ought to have been paid on the rice, and that which actually was paid. But it appears doubtful whether the nett weight of the cotton in England would not have been equal to the gross weight here, the Court is of opinion, that the plaintiffs did not make out that part of their case, and were not entitled to recover back any thing on that account. The ver» diet of the jury, therefore, is so far erroneous.

The next ground which I shall consider, is the fourth in the order in which they were stated in the brief. In order to a correct determination of this question, it is necessary to recur again to the charter party. The part to which our attention is now drawn, is in the following words:

“ The captain to depart immediately and proceed on his voyage directly to the port of Lisbon; but if Lisbon is in possession of the French, then, and in that case, the said ship is to proceed to Fayal, and there discharge the cargo, and in this case, no additional freight is to be paid; but if the affreighters choose to order the vessel to Fayal, when she could safely discharge her cargo at Lisbon, then, an additional freight of one farthing sterling is to be paid per pound.” At the bottom of the charter party is added the following note : “ It is clearly *understood and agreed to by the parties, that if the said ship Ariadne, enters into the port of Lisbon, she shall there discharge her cargo, and the voyage end and determine.” The question now is, whether this vessel had made such an entry into the port of Lisbon, as, in contemplation of the parties, determined the voyage.

I will consider the question, first with reference to the contract as it appears on the face of the instrument, without regard to the evidence; and secondly, with reference to the testimony given on this part of the case.

The deed contains these several provisions. 1st. That the captain shall sail immediately for Lisbon. 2d. If Lisbon is in possession of the French', then he may depart immediately for Fayal, without any additional charge. 8d. If she can discharge her cargo with safety at Lisbon, but the affreighters, nevertheless, ■ choose to order her to Fayal, they may do so, upon paying the additional sum of one farthing sterling per pound. And lastly, if she enters into the port of Lisbon, she shall discharge her cargo, and the voyage end and determine.

It is a rule of law, that where the,different parts of a deed are seemingly contradictory, to give such construction to it, as will give effect to every part, if it is susceptible of such a construction. I feel no difficulty in-reconciling the apparently conflicting clauses in this contract. The first gives to the affreighters an election to dispose of the cargo at Lisbon, or to depart for Faiyal, at their discretion. The last is intended to guard against an abuse of that power. The supercargo, who was the agent of the affreighters, was authorized to go to Lisbon, in order to obtain the information necessary to the exercise of the discretion with which he was vested. But, if he had made an election to discharge the cargo, then the voyage would have been at an end. It became a question of fact, then,, whether the stoppage at Lisbon was an entry into the port with a view to terminate the voyage, or merely for the purpose of information. And that fact has been settled by the verdict of the jury.

This construction seems so necessarily to result from the different* parts of the deed when taken together, it did not appear to me, that there was any room to entertain a rational doubt about it. And by a reference to the testimony of Mr. Haslett and Mr. Maxwell, it appears that this view, of the subject comports also with the 'opinions of commercial men, on the subject. It was'consistent with the usual course of trade to Cadiz or Fayal, at that time, to touch at Lisbon'. But it was not considered as a termination of the voyage, without some declaration or act, manifesting such an intention. In the case of Holst v. Pownal and Spencer, (1 Espinasse Cases, 240,) which was a case of stopping in transitu ; the ship had arrived at Liverpool, her place of destination, on the 9th of June, but was ordered back to Hoylake for the purpose of performing quarantine. Before her arrival, the consignees had become bankrupt. On the day she did arrive, one of the assignees of the bankrupt’s estate, went on board and claimed the goods, and put persons on board to keep possession, On the 11th, eight days afterwards, and while she was performing quarantine, an agent of the consignor claimed her in his behalf, and the question was, whether the voyage was so far completed, that this was not a stoppage in transitu. Lord Kenyon said, that the voyage was not completed till she had performed quarantine, till which time she was in transitu. And a great number of authorities, to which I have not had time to refer, are .there cited to support that position. That is a stronger case than the one now under consideration; for there the vessel had actually entered the port, and was ordered back; but here she had not attempted to enter the port of Lisbon, but had merely stopped at Belem Castle for the purpose of obtaining information.

I come now to the second ground stated in the brief.

Wherever a person obtains money by extortion or oppression, or by taking undue advantage of the situation of the party, or where aequ'o et bono he ought not to retain it, the law will compel a repayment of it in this form of action. 1 Esp. Dig. 14, Gould’s Ed. 6; Shove *v. Webb, 1 Term, 73; Cowper, 197; Dark v. Shee and Johnson, 2 B. & P. 467; Bize v. Dickason, 1 T. R. 285; Astley v. Reynolds, 2 Str. 915; 2 Esp. Rep. 548, in a note by. day. Having laid down the rule, I shall be contented with showing that this case comes within it, without attempting to notice all the conflicting cases on the subject. It is not pretended that an action will lie to recover back money, in every case of hardship. But if it will lie in any case, where money has been obtained, or acquired by taking an undue advantage of the situation of the party, this is one. The plaintiff’s agent was in a distant country, and was reduced to the alternate of having the cargo thrown on shore, where more than one half of it would be swallowed up by the duty imposed upon it, and the other in imminent danger of falling almost instantly into the hands of an invading enemy, or of submitting to the terms imposed by the captain. And although the money was not paid until some time afterwards, yet his situation was not less difficult than when he entered into the contract. He had been compelled to execute a written contract, by which he was bound. He was called upon to perform it in a foreign country; resistance would have subjected him to arrest, without the possibility of making a defence. He must have been the party, and would have been without witnesses. The captain had been guilty of a gross dereliction of duty in not going to Fayal. He had compelled the supercargo to violate his instructions, and extorted from him the plaintiff’s money in such a manner, that his principal is not, in equity and good conscience, entitled to retain it. To be sure these facts are supported only by the oath of the supercargo, against the oaths of the captain and mate; but as the jury have thought proper to believe him in preference to them, we must now take them as true. It has been urged in the course of the argument, (though it did not make a part of the case below, nor' make a ground in the brief,) that this action will not lie, as the parties are reciprocally bound in the penalty of £500, for the performance of the contract; that the action ought to *have been debt, or covenant on the deed. But my brethren all agree that no weight is to be given to that objection. This action has grown out of a subsequent transaction, distinct from and unconnected with the deed.

This brings me to the last, and perhaps the most important point in the case. It is not a little extraordinary that a question of every day’s occurrence, should have remained to this time unsettled ; and even in England, until Lord Ellenborough came to the bench, the question of interest seems to have been afloat. His lordship appears, lately, to have endeavored to lay down the rule with some degree of precision ; yet, in many cases, it still remains open for discussion. In the cases of De Havilland v. Bowerbank, and De Bernales v. Fuller, (1 Camp. 50, 2 Id. 426,) it is laid down that interest is recoverable on open accounts, where there has been an express promise to pay interest, where, from the course of dealing between the parties, it may be inferred that this was their intention, or where it can be proved that the money has been used, and that the interest has actually been made. This rule, as far as it goes, is conformable to the opinion by which I have been heretofore governed. But in the case of Calton v. Bragg, (15 East, 223,) Lord Ellenborough refused to allow interest on money lent, unless there was an agreement for the payment of the principal at a certain time, or for interest to run immediately, or under special circumstances from whence a contract for interest was to be inferred. On this subject I have-entertained a different opinion, and I think a different conclusion may be drawn from the rule laid down by Lord Ellenborough himself. If a person may recover interest in an action for money had and received, where it is proved that the money had been employed, that fact, like every other, may be inferred from circumstances. And I should presume that the mere act of borrowing money furnished sufficient proof that it had been actually used. It could hardly be expected that a person would borrow money who had no use .for it. I am also .further of opinion, that wherever *money has been obtained by fraud, extortion, oppression, or by taking an undue advantage of the situation of the party, or by any unfair or unlawful means, that the manner of obtaining it furnishes sufficient evidence that it was done for the purposes of gain, and that the jury are authorized to give interest upon it. So, where it has been paid by mistake, if in the course of trade, and under circumstances which furnished pretty strong presumption that it must have been used, I left it to the jury, in their discretion, to allow interest or not, according to their view of the matter. And I believe the rules which I have laid down have been consonant with the general current of decisions in this State, although I am sensible some have been otherwise. The case of Smith and Taylor,{MS.,) has been reported to us from memory, in which it was decided, in this Court, that interest should not be recovered in an action for money had and received. But we do not know by what number of judges that case was decided, nor any of the circumstances by which to determine what respect it is entitled to. And as interest in such cases may or may not be recovered, according to circumstances, it may have been refused on some particular circumstance in that case, and not on general principles. I' should be willing to carry the doctrine farther, and allow interest in all cases on open accounts, where payment is to be made at-a certain time; but I think the contrary has been so well established by thejmiform current of decisions in this State, that it would now be a dangerous and unauthorized innovation. I am not aware of any other cases than those which I have mentioned, where interest has been allowed in this State on unwritten contracts.

It is to be regretted, that, on a subject where it is so necessary that the law should be settled, my brethren are not prepared to join me in laying down some general rule. I have, however, given my own opinion, which may be a guide to those who are disposed to be governed by it, until it shall be overruled by higher authority. But we all agree that interest was properly ^allowed in the case now under consideration. Indeed, the Court is well satisfied with the verdict in all respects, except in giving the plaintiff the difference between the nett and gross weight of the cotton ; it was satisfactorily proved that the' nett weight of cotton is equal, and sometimes more, at the port of delivery, than the gross weight at the place where it is shipped. It is probable, then, that the defendant did not receive more freight on that article than he was entitled to by the charter party.

A new trial must therefore be granted, unless the plaintiff will remit the amount received on that account, with the interest thereon.

Gantt and Johnston, JJ., concurred.

Coloook, J., dissented.

Cheves, J.,

delivered his opinion as follows:

I concur in the opinion, that the motion should be refused on all the grounds; and generally for the reasons assigned by my brother Nott, except on the subject of interest. On this subject, I do not know how far the Court are agreed, and, therefore I will assign my own reasons for my concurrence in the judgment of the Court on this point.

The English authorities are so contradictory on the subject, that Mr. Campbell, in a note to De Havilland v. Bowerbank, (1 Camp. Rep. 53,) appears to consider the circumstance as a reproach to the courts ; he says, “ it would, fortunately, be very difficult to fix upon another point of English law, on which the authorities are so little in harmony with each other.” It had been repeatedly determined, and appeared to be the settled law of the English Court, to allow interest on money lent, or laid out for another’s use. (Bunb. 119, Blaney v. Hendrick, 3 Wilson, 205; 5 Bro. Parl. Ca. 71; 1 Ves. Junr. 63.) The case to be found in the last-cited authority, (Craven v. Tickell,) to my mind, (on a point like this,) is better evidence than any single case ; for it is the result of an inquiry, from those whose minds perpetuated the law, and whose memories were *the living repository of the practice, as to the law and practice on the point, as they were at that day settled. The Lord Chancellor says, “ The money referred to inquiry, is the money laid out by the plaintiff, in execution of the contract, (a contract for building a house.) Money paid to the workmen, who were to be paid by the defendant, is money advanced for him, and it is the constant practice at Guildhall, (I do not speak from my own experience, but from conversations I have had with the Judges on the subject,) either by the contract or in damages, to give interest upon every debt detained.” (Vide Mr. Day’s notes to the case of Alkins v. Wheeler, 2 New Rep. 205; Gordon v. Swan, 12 East, 418; Shipley v. Hammond, 5 Esp. Ca. 114.) Interest was allowed by the English Courts, for money had, and received by one to the use of another, which he was bound to pay over or apply, when kept an unreasonable time ; (vide for authorities, Mr. Day’s notes before referred to, particularly the note to Alkins v. Wheeler, sec. 9, 10, 11 and 12.) I admit that the eases relied on are generally decisions in the Court of Equity. But that Court professes to be goverened, where the jurisdiction is common, by the practice of the law courts, as in the case of Craven v. Tickell, already cited; and the Master of the Rolls, in the case of Upton v. Ferrers, (5 Ves. Junr. 803,) after having stated that he had before consulted Lord Kenyon on the subject of interest, then before him, (which however was not the present point,) says, “ it was so at law, and it would be ridiculous to have a different rule in this Court.” It is nowhere said, before the case of Walker v. Constable, (1 B. & Pul. 306,) that interest cannot be recovered in an action for money had and received. It would seem that this case turned upon the pleadings. Mr. Chitty, whose accuracy and learning have almost superceded the labors of previous writers, on the subject of pleadings, appears to put the case on this footing. (1 Chitty, 342.) In the generality of the terms used in the report, the case is certainly not law : for interest, by the admission of all, may be recovered in *an action for money had and received, under some eircumstances, though not on the count for money had and received, unless the count and the action be convertible terms, and perhaps they are so to be considered. This indeed seems to be the proper way of reconciling Mr. Chitty with the case of Walker v. Constable. The case of Tappenden v. Randall, (2 B. & Pul. 472,) is the same as Walker v. Constable, and depends upon it. The latter, it is said in the report of it, was decided on the authority of Moses v. M’Farland, (2 Burr. 1005;) but it would be difficult to find any authority for it in Moses v. M’Farland, in the whole of which, the word interest does not occur. It is only said by Lord Mansfield, that the defendant in the action for money had and received “can be liable no further than the money he has received by which, I think, he ought to be considered to mean, that he could not be liable to the discretionary damages, to which he might-be liable in a special action, which was the alternative, that the argument and the question in the case, presented. So far was the doctrine from being settled, that interest could not be recovered on money had and received, without a contract, that Mr. Justice Buller, (who probably understood the practice as well as any Judge who ever sat on the bench,) suggests in the case of Walker v. Constable, that interest might be recovered under the count for money had and received: It was finally, in that case, otherwise determined ; but it shows two things. 1st. That the contrary was not before settled. 2d. That the only point agitated in that case, turned on the count only. Down then to the case of De Havilland v. Bowerbank, there seems to he no case which makes the right to recover interest, depend on an agreement or understanding in the nature of a contract. On the contrary, in the case of Richards v. Barton, (1 Esp. Ca. 268,) Lord Kenyon sustained an action for interest on money, procured by the plaintiff to pay for an annuity, the charges on which, the grantor had misrepresented, and which was, in consequence! n°t purchased. This is not so strong a case, *as if the money had been paid over to the grantor, and the action had been to recover it back with interest. It may then be said to decide that interest would be recoverable in that case. A recurrence to the cases already referred to, will show that to be the established practice of the Court of Chancery. Interest was recoverable, even for goods sold and delivered, where a stipulated term of credit had expired, and in cases of long delay under vexatious and oppressive circumstances, if a jury, in their discretion, thought fit to allow it. Eddowes v. Hopkins, (Doug. 376;) Mountford v. Willis, (2 B. & Pul. 337.) So interest appears to have been recoverable on liquidated demands, (3 Wilson, 205,) Blaney v. Hendrick. So it appears to have been the practice of Mr. Justice Buller to allow interest on policies of insurance, De Bernales v. Fuller, et al., (2 Campbell, 427,) and it could not have been a practice peculiar to him; for in that case, neither the bar nor the underwriters would have submitted to it.

The true spirit of all the cases seems to be, that in all cases of liquidated or certain demand, interest was allowed, either according to the contraet or in damages, from the time it was due and payable. On book debts, and other demands which were uncertain, and recoverable on a quantum valebat, or quantum meruit, interest was not recoverable, unless by custom or agreement interest was payable, or unless they were vexatiousiy or oppressively withheld. Such I consider to have been the law of South Carolina, until the judgment of this Court in the case of Smith v. Taylor, (MS.) which was decided on the authority of the cases from (Bos. & Pul.) with which the, bar had just about that time become acquainted. I think the case of Smith v. Taylor caused a good deal of sensation at the bar, and it was supposed, I think by many, that following the principal case (Walker v. Constable,) it turned upon the count; and I think, on the whole, that case must be so considered. That the law of this State, before the case of Smith v. Taylor, was, as I have stated, will appear from the case of Skirving v. Stobo, (*2 Bay, 233,) from which it will also appear, that this Court, at that day, construed the English authorities as I have done. And whatever was intended to be decided by case of Smith v. Taylor, it very little disturbed the previous practice. It was, as I learn from my brethren, unknown to the practitioners out of the precincts of Charleston, and even there, seems to have been permitted to go into a kind of oblivion ; for in a case which was argued a few days before this cause, (Alexander v. Gibson, MS.) interest was conceded to be due, as a matter of course and of right on money had and received, though the most minute points of it were warmly controverted by learned and experienced counsel. So, I presume, it has almost beeu habitually allowed. Interest in this State has never been denied on money lent; but this is now in the English Courts very consistently put on the same footing as money had and received., This was determined in Calton v. Bragg, (15 East, 223,) where Lord Ellenborough seems to have consummated the effort commenced in De Havilland v. Bowerbank, to settle the practice, and leave as little to discretion, (which is the greatest of all judicial evils) as possible. I think we should imitate the example of settling the practice in such manner as to leave as little to the discretion of the bench or the jury, as possible. This we can best do, and can only of right do, by adhering to our own old practice. If we follow the decisions of Lord Ellen-borough, commencing with De Havilland v. Bowerbank, we must abandon almost every rule of it. We must refuse to give interest on liquidated amounts ; on policies of insurance ; on money lent and paid out for another’s use ; on money had and received; on goods sold and delivered, where there is an express time- of payment, and where the paymenthasbeen vexatiously and oppressively detained; and in all other cases within the principles of the eases enumerated, where there is no contract; and we must refuse it in the ease before us, because in it there is not the semblance of a contract to pay interest. So far from it, that though *we have determined with satisfaction to ourselves, we have come to the conclusion, not without previous doubts, that the principal was recoverable. We deceive ourselves, if we suppose, that in this case we can allow interest, according to the late English decisions. Those decisions allow interest only on the ground of contract; and no injustice in the receipt, or detention of the money, according to them, can lay the foundation of an implied assumpsit to pay interest. In the ease of De Havilland v. Bowerbank, (1 Camp. 50,) the money had been detained ten years, without any plausible pretence ; and in De Bernales v. Fuller, (2 Camp. 426,) the money had been fraudulently diverted by an agent from its intended application. Nothing short of a contract, according to these decisions, can authorise interest; and this contract cannot be inferred from the obligation to pay the principal and the delay of payment.

Bee and Simons, for the motion. Richardson and Pr.ioleau, contra.

My opinion is, that according to the law and practice of this State, interest is recoverable, either according to the contract, or in damages, in all cases of certain or liquidated demands, from the time they are legally due and payable ; and in all other cases, in the nature of debt, where by custom or agreement interest is payable, or in which the demand has been vexatiously or oppressively withheld. According to these principles, I think interest' is due in this case, because it is for the'recovery of money belonging to the plaintiffs, which the defendant had no legal right to' exact, or retain, and is a demand certain in its nature. 
      
       McC. 258.
     
      
      
        Post. 433.
     
      
       Mill. C. R. 394.
     
      
       See Post 214; 2 N. & McC. 496 ; 1 McC. 449 ; 3 McC. 563; 4 McC. 59; Ckeves, 62; 2 Strok. 484 ; 2 Sp. 596; 5 Rick. 298; 7 Rich. 125; 1 Bay, 105, 307, 357; 3 Brev. 506.
     
      
       MS. See post, 480.
     