
    Albert Smedes, Executor of Arientie Hieistead, against William P. Hooghtaling and others, heirs of Philip Hooghtaling, deceased.
    NEW-YORK,
    May, 1805.
    Interest may be recovered beyond the penalty of a bond. But whether it shall be so or not, is matter of law arising from the facts, and therefore, for the determination of the court, not of the Jury. Acknowledging a bond, and apologizing for not paving it, is a circumstance to rebut and destroy the presumption arising from not paying interest for 25 years.
    
      THIS was an action brought in October, 1802, on a bond, dated 4th June, 1776, conditioned for the payment of 200 pounds, with interest at 4 per cent, on the 4th day of June then next. The defendant pleaded payment, and relied on the presumption of law arising from lapse of time since the instrument was given, On the trial no evidence was adduced of interest having been ever Paid,nor was there any indorsement to that éffect on the obligation, From the testimony of a mesne assignee, who was released by the plaintift, it appeared that the bond had, on the division of the obh-gee’s estate, been taken by the mother of the obligor, as a part of , ,. her share m it; that this was done at his because “ he t. then should never have to pay it.” That the mother herself, had declared, she had nothing; against the obligor,” but did not give a discharge, on being threatened by one of her daughters to be ⅛ turned out of doors if she did. It was, however, in proof, that in the same year, in which the mother of the obligor made the above , , . _ , declaration, he was called on for the payment, when he acknow-Jedged the bond to be due, and apologized for' having suffered it to remain so long unpaid-
    Upon this testimony the jury found for the plantiff, but a question then arose, whether the interest could be calculated beyond • the penalty r A verdict, however, was taken for the full amount, on an agreement to reduce it, in case the court should be of opinion, that it could not, but no new trial to be granted pn that account.
   Fer curiam, delivered by

Kent, C. J.

This case is submitted without argument. On a review of all the decisions on this sübject, the court think this rule ought to be adopted. That interest is recoverable beyond the penalty of a bond. But that the recovery depends on principles pf law, and is not an arbitrary, fid libitum discretion of a jury. In the present instance, we are of opinipn, that it is due, and therefore, the verdict to remain unaltered.  