
    *Tazewell’s Executor v. Barrett & Co.
    Thursday, October 26, 1809.
    1. Assignment — Notice to Obligor — Payment to As-signee. — After bona fide assignment of a bond, and notice thereof to the obligor, he cannot be restrained by an attachment in Chancery at the suit of a creditor of the obligee from paying the debt to the assignee notwithstanding the subpoena, with the usual endorsement by the Clerk, was served upon him before he received such notice, and afterwards (but before he answered the bill) the Court made an order restraining him “from paying the debt which he owed the defendant.”
    2. Same — Same—Same—Interest against Obligor. — Therefore, in this case, the obligor, (though previously served with the subpoena,) having received notice of the assignment shortly after the bond became payable, and failing for nearly six years to answer the bill, (which was filed before the notice was given,) was not allowed (in a suit against him by the assignee) any deduction of interest between the day when the bond became payable, and that when the restraining order was set aside.
    This was an action of debt in the District Court of Williamsburg by John Barrett & Co. assignees of Emanuel Walker & Co. who were assignees of Theodorick Bland, against Henry Tazewell, on a bond in the penalty of eighteen hundred pounds, dated March 13, 1785, conditioned to be discharged by the payment of nine hundred pounds on or before December 25th, 1786, assigned to-Emanuel Walker & Co. May 10, 1786; and by Emanuel Walker to the plaintiffs on the 10th of March, 1787. The defendant (without filing any plea) brought into Court the principal and interest upon the bond, from the 20th of March, 1793, and moved the Court to have the suit dismissed at his costs, praying to be discharged from the interest which accrued on the said bond between the day when it was payable and the said 20th of March, 1793; on the ground that an attachment in Chancery on behalf of the executors of a certain Theodorick Bland (a creditor of the above-mentioned Theodorick Bland) was depending in the County Court of York, against him the said Tazewell as a garnishee, and restrained him during that time from paying the principal. The plaintiffs, claiming the said interest, refused to accept the money so brought in: but the Court was of opinion that the sum brought into Court ought to be received by the plaintiffs without any interest, pending the suit in Chancery in York Court, and directed the suit to be dismissed at the costs of the defendant; to which opinion the plaintiffs filed a bill of exceptions stating the case imperfectly. This judgment was therefore reversed by the Court of Appeals on the 21st of April, 1798, and the cause remanded for farther proceedings, 
    
    The defendant having afterwards died, the suit was revived against his executor; and at a Court held for the 'x'District aforesaid, in September, 1802, the defendant moved to withdraw the motion made by his testator, and now to plead payment; which the Court permitted him to do, upon his agreeing that the money paid into Court might be paid over to the plaintiffs, and, “this payment being made since the institution of this suit,” that he should pay the costs of this suit. The defendant excepted to this opinion of the Court, but, nevertheless, pleaded “payment by his testator,” on which plea issue was joined.
    The Jury found a special verdict, stating, (in addition to the circumstances already mentioned,) that interest on the bond had not been paid from the 25th day of December, 1786, to the 19th of March, 1793; but that all the residue of the said bond had been paid; that the process to stay the effects of Theodorick Bland in the hands of the defendant’s testator, was issued on the 19th, and executed on the 24th of May, 1786; that the bill in Chancery was filed in September, 1786; that an order was made by the Court of York County in May, 1787, making John Barrett & Co. (the present plaintiffs) parties in the said suit in Chancery, and restraining the defendant’s testator from paying away the debt due from him to Theodorick Bland, which debt so restrained was the same debt now claimed by the plaintiffs; that John Barrett & Co. filed his answer in said suit in 1789, claiming this debt as due to them by assignment as above ; and, in August in the same year, “it was withdrawn,” and the suit as to him dismissed; that an attachment issued in March, 1787, to compel the defendant’s testator to answer the bill; that he filed his answer in September, 1792, and on the 19th of March, 1793, the said restraining order of York Court as to him was set aside; that in January, 1787, the defendant’s testator had notice that the bond was assigned to Emanuel Walker & Co. on the 10th of May, 1786; and that, whether the restraining order of York Court be considered as operating upon the debt due by the bond in question, or not, yet the opinion of both John Barrett & Co. and Henry Tazewell was, that they were thereby restrained.
    The conclusion of the verdict was as follows; “and if, upon *the whole matter, the Court shall be of opinion, that the plaintiffs are entitled to the interest during the period last aforesaid, we find for the plaintiffs the debt in the declaration mentioned, to be discharged by the payment of the interest during the period last aforesaid, to wit, from the 25th of December, 1786, to the 19th of March, 1793; but if the Court shall not be of that opinion, we find for the defendant.”
    On this verdict the Court gave judgment for the plaintiffs; whereupon the defendant appealed.
    Wickham, for the appellant,
    observed, that the bond in this case contained no stipulation for payment of interest; that interest, therefore, could accrue only on the default of Tazewell to pay the principal; and the bond having been assigned before it became due, there could be no default until it was presented to him by the assignee, and payment demanded. The creditor having thrown the bond into circulation, the debtor was not bound to seek the person of the as-signee. So, if the creditor goes without the limits of the Commonwealth, interest is not recoverable,  Bland the obligee, had left the country, and the debt was attached in Tazewell’s hands before the bond was payable, by the endorsement of the Clerk on the subpoena in Chancery; which endorsement was effectual for that purpose, as was decided in the case of M’Kim v. Eulton. During the pendency of the attachment he could not pay the money, and therefore should not be liable for interest.
    The notice in January, 1787, of the assignment was not sufficient. The assignee, to entitle himself to interest, must not only give notice, but demand payment, and, to make the demand, must seek out the debtor.
    Call, contra.
    If the attachment was not solicited by Tazewell, he availed himself of it to procrastinate the payment of the debt. Immediately after the bond fell due, he had notice. It is admitted the assignee was bound to give notice; but that was done.
    *Why did not Tazewell file his answer? The attachment was served in 1786, and could not be discharged until he answered: yet his answer was not filed until 1792; and then, through compulsion, by process of contempt. In the mean time he surely made interest of the money. If a partj' is sued in Chancery about a sum of money, he may relieve himself by bringing it into Court, and praying the direction of the Court, as was said by this Court in Macon v. Ambler, (MS.) In that case it was even an unliquidated demand. In Dunlop v. Garnett, and Dunlop v. Jones, in the High Court of Chancery, (in 1794,) it was decided that, if a garnishee fails to bring money into Court, he is compelled to pay interest, 
    
    M’Call v. Turner was a very different case from this. The ground of the decision there was, that the situation of the country rendered it impossible to make payment. But in another case the Court held, that, where one of the creditors was in this country, the debtor should pay interest.
    It is objected there was no stipulation for interest; but this was of no consequence; the bond being with a penalty, which the act of Assembly says shall be discharged >by the payment of the principal and interest. „
    It should be remarked, too, the attachment was only for 4001. and the bond for ■9001.
    Monday, November 13. The JUDGES FEEMING and ROANE (TUCKER not sitting in the cause) delivered their opinions.
    
      
      See monographic note on “Assignments" appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
    
      
       Interest — Injunction against Payment of Principal. —Although a party is restrained from paying money, yet if he continues to hold the money, he must pay interest during the time he was so restrained. If he is unwilling to pay interest on it, he can at any time avoid and stop the payment of interest by paying the fund into court, when it will be ordered to be loaned if the court cannot properly determine to whom it is properly payable. See the principal case cited and approved in Tem-pleman v. Fauntleroy, 3 Rand. 446: Childs v. Hurd, 32 W. Va. 117, 9 S. E. Rep. 382; Darby v. Gilligan, 37 W. Va. 69, 16 S. E. Rep. 511.
      See monographic note on “Interest” appended to Fred v. Dixon, 27 Gratt. 541.
    
    
      
       See 1 Call, 223. Barrett & Co. v. Tazewell.
    
    
      
       M’Call V. Turner, 1 Call, 133.
    
    
      
       MS.
    
    
      
       P. Wins. 27. Maxwell v. Wettenhall, S. P. as to interest on legacies.
    
   JUDGE ROANE.

Upon the authority of some decisions in this Court, and particularly that of Hunter v. Spotswood, I incline to think that the testator of the appellant was responsible for the interest; and therefore concur with the judge who preceded me, who seems more clear upon the question than I am. In the case of Hunter v. Spotswood, this Court affirmed a decree of the Chancery, giving interest against Herndon, who had, as Sheriff, received money ^produced by the sale of attached effects under an order requiring him to pay the same to Hunter, he giving security therefor. Hunter declining to do this, the money remained (and, it was said, had died by depreciation) in Herndon’s hands. It is supposed that this interest was decreed on the ground that the identical money was not kept by Herndon, but that he had used it, and, perhaps, made a profit on it.

On the ground of the principle established by this decree, I concur that the decree of the District Court be affirmed.

JUDGE FEEMING.

The only remaining question in this case is, whether the appellant’s testator has shewn good legal cause why he should have been exempt from the payment of interest on his bond from the 25th of December, 1786, the time it was payable, to the 20th of March, 1793, when he was dismissed out of York Court. The ground of his claim to such exemption was, that during all that time, his hands were tied, by the restraining order of the County Court of York, and he knew not to whom the money was to be paid.

In order to a correct decision, let us take a short view of the progress of the business from its origin.

The bond in question to Theodorick Bland, was dated the 30th of March, 1785, and payable the 25th of December, 1786. On the 10th of May preceding, it was assigned to Emanuel Walker & Co. On the 19th, process in Chancery issued from York Court, against Theodorick Bland, the obligee, and the defendant Henry Taze-well, on whom process was served on the 24th of the same month. In September, 1786, the bill was filed in York Court. In January, 1787, (if not before,) Henry Tazewell had notice that the bond was assigned to Emanuel Walker & Co. In March following, an attachment issued to compel him to answer; and on the 20th of the same month, W’alker & Co. assigned the bond to J. Barrett & Co. On the 21st of May was *made an order of York Court, restraining the defendant from disposing of any debts or effects of Theodorick Bland, and John Barrett & Co. made defendants to the suit; who filed their answer, which in August the same year was withdrawn, and the bill dismissed as to them. In September, 1792, Henry Tazewell filed his answer; five years and a half after the attachment, and in March following, the suit in Chancery was dismissed as to him.

In September, 1794, J. Barrett & Co. instituted a suit on the bond, in the District Court of Williamsburg, against H. Taze-well, who brought into Court 5391. 10s. 5d. which he tendered in discharge of his bond, claiming an exemption from the payment of interest from the 25th of December, 1786, till the 20th of March, 1793, when the suit in Chancerjr was dismissed, as to him. Barrett & Co. refused to receive the money on those terms.

Upon the assignment of the bond to Walker & Co. which was done previous to the issuing of process in Chancery from York Court, Mr. Tazewell immediately became their debtor, and was no longer the debtor of Theodorick Bland; and it is stated in the original bill of exceptions, as agreed by the parties themselves, and certified by Judge Parker, that he had notice of the assignment of the bond to Walker & Co. before it became due, but subsequent to the process of York Court being served on him ; though it is found in the verdict, that in January, 1787, the defendant’s testator had notice that the bond was assigned to Emanuel Walker & Co. on the 10th day of May, 1786, which does not contradict what had been previously agreed by the parties, that he had notice of the assignment before the bond became payable. But, admitting that he had no notice till a month afterwards, what ought he then to have done? He knew that the bond carried interest on the amount of the condition, from the day it became payable, and that the person or persons entitled to the principal debt, had also a right to the accruing interest; and, whilst the matter was suspended by the Chancery process of York Court, he ought (if he meant sto exonerate himself from the payment of interest) to have brought, and deposited the money in Court, there to abide its subsequent order, on the same principle that a defendant in debt, upon a bond with condition for the payment of a lessor sum at a certain day, who would avail himself of a plea of tender, and that h'e was, and always had been, ready to pay; in order to avoid damages for the detention of the debt, must also bring the money into Court. And he ought immediately, or in a reasonable time, to have answered the bill; and stated (which he might have done in a few words) the assignment of the bond to Walker & Co. by which it would have appeared to the Court, that he was no longer the debtor of Bland; he would consequently have been immediately dismissed from the suit in Chancery, and all difficulties respecting the creditor of the bond, would have ceased, as it was payable to the last assignees; but instead of doing what was incumbent on him, he failed to answer until, in March following, an attachment was awarded against him for his contempt; and five years and a half thereafter he filed his answer, and was soon afte"r dismissed out of York Court; keeping in suspense and withholding the debt all this while from John Barrett & Co. to whom the bond had been assigned on the 20th of March, 1787, about three months after it became due. When the bond was put in suit in the jrear 1794, the defendant brought into Court the sum of 5391. 10s. 5d. which he tendered in discharge of his bond, claiming an exemption for the payment of upwards of six years’ interest, on account of difficulties which arose from his own negligence and misconduct; and it is a sound maxim in law, that no man shall take advantage of his own laches to the prejudice of another. The case of M’Call & Turner was cited, and relied on by the appellant’s counsel; but that case is essentially different from the present. There the obligee was beyond seal, where he remained from April, 1775, to April, 1783, and it was not known in whose possession he left the bond, or whether he took it with him; and it is well known that a debtor is not obliged to seek his creditor *in a foreign country; and it was upon that ground that the interest was extinguished during M’Call’s absence beyond seal, added to the obstructions to the ordinary course of business, during the revolutionary war. I am of opinion, upon the whole, that the appellant’s claim of exemption from the payment of interest, is altogether unsustainable, both in law and equity; and that the judgment ought to be affirmed. 
      
       1 Wash. 145.
     