
    James Barr, Executor of James S. Skeen, and others, vs. Francis G. Haseldon.
    
      Jurisdiction — Interest—Pleadings—Answer—Evidence.
    Where the bill of an executor, or other representative, who has no means of knowing the facts, states a case within the jurisdiction, and prays discovery, specific and general relief, and the answer, denying the facts a¡s stated, discloses a case in which the remedy is properly at law, the Court may nevertheless sustain the bill and decree for plaintiff, under the prayer for general relief.
    Interest is recoverable upon money laid out for the use of another.
    Matter of avoidance stated in the answer must be proved by the defendant.
    The borrower must pay interest, although he maintains the lender without charge.
    BEFORE DUNKIN, OH., AT CHARLESTON.
    The complainants were the executor, widow and infant child of James S. Skeen, who died about the first of January, 1857. The bill alleged that in 1852 the defendant purchased, in his own name, a plantation and some negroes from R. I. Middleton, for $27,250. That the purchase was, in fact, on the joint account of complainants’ testator, and the defendant, who were to share in proportion to the sums respectively contributed by them. That the defendant paid a considerable part of the purchase money and the complainants’ testator contributed $2,140. There were other allegations which were denied in the answer. The bill prayed a discovery; that an account might be taken of the share of complainants’ testator in the plantation and negroes, and of the rents and profits — a writ of partition and for general relief.
    The defendant in his answer denied that the purchase was on the joint account of defendant and complainants’ testator. He alleged that complainants’ testator was a step-son of defendant — that he resided with defendant until a short time before the bill was filed, and was maintained, clothed and educated by him. The defendant denied “ ever having received one cent or any amount of money whatever from the said .Tames S. Skeen, except two thousand one hundred and forty dollars, which was the legacy paid him by Mr. Gray, the Master in Equity, on the seventh day of March, 1853; some days after this defendant had purchased the said plantation, Rock Spring and negroes. That at the time the said James S. Skeen received the money he was living as a member of this defendant’s family, and regarded and treated by him as his son; that he, of his own accord, offered and himself called and paid that amount, two thousand one hundred and forty dollars, for this defendant to the said R. I. Middleton’s agent, on account of the credit portion of the said purchase; that nothing was said as to the time of its repayment, but it was always understood he was to be paid whenever the money was required; that not a word was uttered, nor was there any understanding as regards interest, for this defendant was then supporting and maintaining the said James S. Skeen, and continued to supply him with clothing, groceries and pocket money even when employed, as stated by complainants’ bill of complaint, in overseeing, and until he moved from this defendant’s plantation, some short time previous to his death.” And defendant submitted that as he was and always had been ready to pay the said debt of $2,140, there was no equity in complainants’ bill which entitled them to be heard.
    Upon the coming in of the answer, his Honor made the following interlocutory decree :
    Dunicin, Ch. This bill is instituted by the representatives of James S. Skeen, who died in 'January last. It is not necessary to recapitulate the allegations and charges of the bill, as it is rather in the nature of a bill of discovery, and, for the purposes of this motion, the Court must rely upon the facts stated in the answer. It appears that in 1842, when the testator was about eleven years of age, the defendant intermarried with his mother, and thenceforth assumed the character of a parent to the testator. On 5th March, 1853, the defendant purchased the plantation and slaves adverted to in the pleadings, for about twenty-seven thousand dollars. Two days after the purchase, to wit: on 7th March, 1853, the testator, who had not long previously attained his majority, and was then living with the defendant, procured from the Master ■ in Equity, the amount of a legacy to which he was entitled, to wit: the sum of two thousand one hundred and forty dollars, and paid the same to the agent of R. I. Middleton, Esq., from whom the defendant had purchased the plantation and negroes, and the money was applied towards the amount due by the defendant. According to the answer of the defendant this amount constituted all that the ^estator was then worth in the world. It is not suggested that the payment was made without the knowledge of the defendant; and, as he gave no acknowledgment or obligation to the testator, his representatives might very well infer that the payment was made by the testator on account of his interest in the purchase. .But the answer denies this in positive and unqualified terms; and it may be, from the confidential and fiduciary relations so long subsisting between the testator and the defendant, the latter was regarded as holding the amount in trust for the testator whenever he should be called on to account. The answer admits the defendant’s readiness to pay the amount, but does not admit his liability for interest, or the plaintiffs’ equity.
    Assuming the answer of the defendant to be strictly accurate, it would be difficult for the plaintiff to recover at law what the defendant admits his readiness to pay. According to his statement, the payment of two thousand one hundred and forty dollars made by the testator was not, in any sense, at the instance and request of the defendant, but was purely voluntary on the part of the testator and of his own proper motion. It is by no means clear that this would maintain an action of assumpsit at the instance of the executor. But, without the discovery from the defendant, it would be presumed that the payment was made with the defendants own money. This would seem sufficient to prevent the Court from turning the party round to pursue a new litigation.
    Upon the coming in of the answer, the defendant, in the judgment of the Court, is entitled to a dissolution of the injunction restraining his disposal of the plantation or the removal of the negroes, and it is so ordered. The Court is further of opinion that, upon the admissions in the answer, the plaintiff is entitled to have the sum of two thousand one hundred and forty dollars paid into Court, and it is so ordered.
    From this decree the defendant gave notice of appeal on the grounds:
    1. That all the equity of the bill having been denied by the answer, the Court had no jurisdiction over the money, and the order to pay it into Court was erroneous.
    2. That if the bill was for discovery, the answer having furnished proof of the indebtedness, the complainants should have been remitted to their remedy at the common law.
    3. That the injunction having been dismissed, all that the complainants could claim, or to which they were entitled, was to have their bill retained for further proof.
    His Honor afterwards again heard the cause and pronounced a final decree, as follows:
    Dtjnkin, Ch. The plaintiffs waive their claim to proceed for a specific performance, and the "defendant agrees to pay the sum.of two thousand one hundred and forty dollars. The only matter submitted to the Court is the question as to interest, and also as to costs.
    According to the statement of the defendant, he, in the latter part of February, 1853, made a purchase of R. I. Middleton to the extent of twenty-seven thousand two hundred and fifty dollars — the titles were executed on 4th March'. At that time the plaintiffs’ testator, J. S. Skeen, who had recently attained his majority, was living in the house of the defendant as one of his family, and by whom, as averred, he .had been, for many years, treated with paternal kindness. The testator was entitled to a legacy in the hands of the Master in Equity amounting to two thousand one hundred and forty dollars. On 7th March, 1853, the testator received the amount of his legacy from the Master in Equity, and “called himself” (says the answer) “and paid that amount, two thousand one hundred and forty dollars, for this defendant to the agent of the said R. I. Middleton, on account of the said purchase.” The defendant denies, however, in explicit terms, that the testator was concerned in the purchase, and the claim to that construction of this act on the part of the testator is given up. The defendant is willing to repay the amount thus applied to the exoneration of his debt to R. I. Middleton, but objects to.the payment of interest. Since the decision of Goddard vs. Bulow, 1 N. & McC. 45, the Court is not aware that any doubt has been cast upon the principle there adjudicated, to wit: that “interest is recoverable where there is proof, or where, from the circumstances, it can be inferred that the money has been employed.” Judge Nott, delivering the judgment of the Court, says, “interest is recoverable ‘where it cau be proved that the money has been used, and that the interest has actually been made.” And in the same case Judge Cheves says, “it has been repeatedly determined, and appeared to be the settled law of England, to allow interest on money lent, or laid out for another’s use.” And he cites, as his authority, Lord Thurlow’s opinion in Graven vs. Trehill, 1 Ves. jr. 63, where he says,“money paid to the workmen, who were to be paid by the defendant, is money advanced for him,” and allowed interest as in accordance with the constant practice at Guildhall. Thompson vs. Stevens, 2 N. & McC. 493, is, perhaps, still stronger upon the general right to recover interest in such case. It is suggested that, as the testator lived in the house of the defendant as one of his family, this should prevent the allowance of interest. But it would be great injustice to the spirit which manifestly actuated the whole conduct of the defendant to his deceased step-son, to suppose that he ever intended to make a charge of board, or any other charge of that character; nor is it now set up as a substantive charge, but it is urged, that it should neutralize the claim for interest. It amounts to the same. The sum paid by the testator for the use of the defendant entitled him to repayment, with interest as a legal incident. The Court cannot presume any waiver of the right. No agreement to that effect is proved, or suggested. The legal representative of the testator is entitled to interest from the date of the payment made by him.
    Then as to the costs. The plaintiffs’ bill is for the specific performance of a contract-, and this is the burthen of their allegations, and in this they have miscarried. But they sue in their representative capacity — charge the payment of the particular sum on account of the purchase made in the defendant’s name — pray a discovery, &c., and conclude with a prayer for general relief. In 2 Hill, ch. 254, Chancellor Harper states the rule of the Court thus: “where a proper case is made, though the specific relief prayed for cannot be granted, yet, if there be a prayer for general relief, the proper relief will be afforded.” It was upon this principle, and from the consideration that the plaintiffs sued in their representative capacity and sought also a discovery, that the Court deemed them entitled to the relief which was granted. But whenever relief is afforded in this way it is always done subject to inquiry as to the costs. Certainly the matters in issue were in reference mainly to the question of specific performance in which the plaintiffs have been wholly unsuccessful. The Court is by no means satisfied that, if the demand of the plaintiffs had been originally limited to the relief now afforded, any resort to this, or any other judicial tribunal would have been necessary. The Court is of opinion that the costs should be borne by the estate of the testator.
    It is ordered and decreed that the defendant pay to the plaintiff, James Barr, executor of James S. Skeen, deceased, the sum of two thousand one hundred and forty dollars, with interest from 7th March, 1853, less the amount of the defendant’s costs to be taxed by the Master.
    
      The defendant appealed, and now moved this Court to reverse the decree on the grounds:
    1. That there was no equity in the case, and the bill should have been dismissed.
    2. That, admitting the jurisdiction, the decree is erroneous in allowing interest from the 7th March, 1853. The only evidence before the Court was the answer, which proved that the money was to be paid when required, and until a demand was made for the money no interest could accrue, either at law or in equity.
    
      Phillips, for apellant.
    
      Dunkin, Simons, contra.
   The opinion of the Court was delivered by ■

Wardlaw, Ch.

According to the proof, which consists of the admissions of the answer, the demand of the plaintiff is nakedly for money lepd out for the use of the defendant, which might have been recovered at law by action of as-sumpsit, and if' the case made had been stated in the bill it would not have been within the jurisdiction of this Court. If the suit related to matters which had been personally transacted by the plaintiff, or which ought to have been within his personal cognizance, the Court would not have entertained his suit, however plausibly he might have mis-stated the facts to make a case prima facie within the jurisdiction of the Court. But here the plaintiff is the representative of one deceased, sues concerning matters not within his full knowledge, transacted by his testator and apparently justifying the misapprehension of plaintiff. He states a case clearly within the sphere of Equity of the joint purchase of land by his testator and defendant — requires from the defendant discovery of the facts, and prays for partition, account for the rents and profits, and for general relief. We have no reason to suspect that his plaint was merely pretensive. The answer denied partnership in the purchase of the land, yet confessed that testator of plaintiffs had advanced the sum of $2,140, which was appropriated towards its purchase. In Nix vs. Harley, 3 Rich. Eq. 383, I had occasion to express opinions which I still entertain. “The remedy to be afforded in a cause in Equity depends upon the whole pleadings of the cause. The case stated by a plaintiff may be so varied .by the answer of defendant or the proofs, that a plaintiff may be barred from the special remedy he. seeks, yet under the prayer for general relief the Court will afford such remedy as is proper under all the circumstances of the case. The plaintiffs present a case in which jorima fade the peculiar remedy prayed for, specific delivery of a slave, was just and equitable; and they may not have had the means of knowing and were not bound to anticipate the defences of defendant. The whole case is before us, and in avoidance of further litigation we will decide upon the rights of plaintiffs and the defences of defendants.” In that case the Statute of Limitations was held to bar some of the plaintiffs and vest their shares in defendant, and partition, not specially prayed for, was decreed. It is said in Story’s Eq. 64, 71, that where the jurisdiction of Equity once attaches for discovery, and discovery is obtained, the Court will further entertain the bill for relief, if the plaintiff prays relief, to avoid multiplicity of suits. In Sims vs. Aughtery, 4 Strob. Eq. 121, it is said, “plaintiffs had a right to come into this Court to seek discovery, and the Court, having entertained the bill for this purpose, had a right to retain it for judgment. In Backler vs. Farrow, 2 Hill Ch. 111, it was held that “having proper jurisdiction of the cáse, there is hardly any question in relation to property which this Court may not determine incidentally, for the ‘purpose of doing complete justice and preventing multiplicity of litigation. A bill will not lie for waste merely, but if the party be properly in Court for another purpose, as to obtain an injunction, an account -of past waste will be granted.” See Reese vs. Holmes, 3 Rich. Eq. 532. We approve the doctrine of Chancellor Harper, adopted by the Circuit Chancellor in this case, that “where a proper case is made, though the specific relief prayed for cannot be granted, yet, if there be a prayer for general relief, the proper relief will be afforded.”

The defendant in his answer avowed his readiness to pay the $2,140 advanced by the testator of plaintiff, and it is stated by the Counsel of defendant that the principal sum has been actually paid. The other question in the cause, indeed the only practical question, for the defendant was exempted from the costs accrued at the hearing, is whether defendant should pay interest on the sum advanced to him by testator before demand of payment was made by the bill, there being no evidence of any previous demand of payment. It is admitted by the answer that the money advanced by plaintiff’s testator was used by defendant in extinguishment of interest on his bonds, which would otherwise have fallen upon him. Before the argument of this case I thought it indisputable that in the absence of contrary stipulation, money lent or laid out for the use of another, bore interest fromi the date of the loan or advance, and created a debt then demandable. Story on Con. 1156, n. Undoubtedly one may lend money to another and stipulate that no interest shall accrue until a future day, when the principal shall be repaid or demand of payment be made, and such stipulation is justly inferred from a note for money borrowed, payable on demand. The case of Schmidt vs. Limehouse, 2 Bail. 276, quoted to us in proof that a note payable on demand bears no interest before demand, explicitly asserts 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 the law imposes the duty to pay it, and it is then due and payable.” Clearly the parties may postpone by contract the day of payment, and consequently postpone the interest which would otherwise accrue; but in the absence of contract to the contrary, interest accrues from the date the principal is due. In this Court where ever money has been received by a party which exequo et bono he ought to refund, interest follows as a matter of course. Smith vs. Godbold, 4 Strob. Eq. 188. Harrison vs. Long, 4 Des. 113.

It is supposed by us that this point as to interest would not have been mooted, if the efficacy of the answer had not been misapprehended. The answer admits the borrowing and use of the money, but affirms that defendant understood it was not to be repaid until demanded. The answer does not affirm any agreement of the parties to this effect, and if it had, the plaintiff might use the answer as proof by admission that the money had been borrowed and used, without conceding the avoiding statement of defendant that the money was not due and payable until demanded. This matter of avoidance is an independant defence of defendant, and needs, like other pleas, proof from the affirmant. Without affecting much research on the subject, I find in a single volume of our reports, 5 Rich- Eq., several cases on this point. In Duncan vs. Dent, p. 12, it was held that the answer of defendant, an administrator to a bill against him for account, alleging that he had kept the funds in his hands without making interest, required proof of the allegation on his part. In Ison vs. Ison p. 18, the defendant in his answer admitted the gift of a stallion to him by his intestate father, but alleged that he had paid for him; and it was held that this payment, as a matter of avoidance, must be proved by defendant. In Reeves vs. Tucker, p. 150, the defendant, executor and legatee in a bill for account, alleged that certain negroes belonged to him and not to his testator, and it was held that he must prove his title.

If we had concurred in defendant’s view as to the force of the answer, we should have been saved from the necessity of defending the jurisdiction of the Court in this case; for taking the whole answer to be true, it exhibits a case of voluntary payment by plaintiffs’ testator of defendant’s debt, as to which there was no plain and adequate remedy at law,and probably none in this Court. No person can be rendered a debtor without his contract.

The disallowance of interest is further urged for the reason that defendant maintained plaintiffs’ testator. This fact of maintenance is not proved; and if it had been, would not, of itself, have arrested the interest. In Lloyd vs. Carter, 2 Atk. 84, a party was exempted from interest, he had agreed to pay for maintenance, where he had furnished the maintenance specifically; but here there is no necessary connection between maintenance and interest, and no pretence that one should be set off against the other by any agreement of the parties.

The Chancellor in his decree made the plaintiff from the assets of his testator, pay the costs accrued at the hearing, but manifestly did not contemplate that defendant should pursue the litigation at plaintiffs’ expense.

It is ordered and decreed that the appeal be dismissed, and that defendant pay the costs of the appeal.

Dunkin & Dargan, C.C., concurred.

Appeal dismissed.  