
    Brewer v. Hastie & Co.
    [Tuesday, April 21st, 1801.]
    Evidence of Debt — Sufficiency.—If the answer admits dealing's, and the Commissioner reports a balance • due. without exception before him, or in the Court of Chancery, the defendant cannot obi ect in the Court of Appeals, that there was no evidence of the debt.
    Interest — War.—Interest during the war deducted from a debt due a British subject resident abroad.
    Same — Rule in Equity. — Interest, not to be carried down beyond the date of the decree.
    Hastie & Co. merchants, and partners, and British subjects, filed a bill in the High Court of Chancery against Brewer, praying an account and relief for money due for dealings with Lindsy their factor in Virginia, before the Revolution. The answer admitted dealings to a considerable ^amount, but alleged that Brewer had paid considerable sums of money and tobacco towards the discharge thereof, and had frequently solicited the plaintiff’s factors and agents for a final settlement,, which they did not comply with until the year 1774 or 1775, when one Burt presented an account, which upon examination, the defendant found to be incorrect, and sets forth some credits which he claims. That, upon receipt of the account rendered by Burt, he went to Petersburg prepared to settle and discharge the balance, but, upon enquiry, found that the plaintiffs’ agents had all left the country.
    There are no documents or evidence filed in the cause, except a copy of the plaintiffs’ account.
    The Court of Chancery referred the accounts to a .Commissioner, who reported a balance of 2251. 13s. 8d. due the plaintiffs, with'interest from the 1st September, 1775.
    No exception to this report was taken, either in the Commissioner’s office or in the Court of Chancery; and that the Court confirming the report., .decreed payment of the balance reported due, with .interest as aforesaid. From which decree, the defendant appealed to this Court.
    Duval, for the appellant.
    There was no evidence of the debt; for, the answer does not admit the amount, but merely that there had been dealings between the parties; and, therefore, the .ap-pellees were not entitled to a decree for any sum. However, be that as it may, the decree was clearly wrong in allowing interest during the war; as the plaintiffs were British subjects, who, by their own bill, shew that they were out of the Commonwealth ; and the answer states, that the defendant was desirous of a settlement, but could not obtain it.
    Call, contra.
    The answer admits, that there *were dealings and transactions, and only claims credit for some tobaccoes and grain ; which virtually amounts to an admission, that the items stated in the plaintiffs’ account were really furnished; especially, as the account is referred to, and made part of the bill. Besides, upon the taking of the account before the Commissioner, the defendant appeared, his allegations were heard, a report made, and no exception taken, either before the Commissioner or in the Court of Chancery. After which, it is too much to deny the existence of the debt. As to the question of interest, that is submitted to the judgment of the Court upon the law.
    Cur. adv. vult.
    
      
       interest — War.—In Virginia, interest during a period of war may be disallowed by a jury or a'court without breach of contract. Harmanson v. Wilson, Fed. Cas. No. 6.074, 11 Fed. Cas. p. 549, citing with approval, the principal case; M’Call v. Turner, 1 Call 115; Ambler v. Macon, 4 Call 605; Rucker v. Watson, 6 Am. Law Reg. 220. For this proposition, the principal case is cited with approval in Fred v. Dixon, 27 Gratt. 543; Roberts v. Cocke, 28 Gratt. 213 See footnote to M’Call’ v. Turner, 1 Call 133; and monographic note on “ Interest” appended to Fred v. Dixon, 27 Gratt. 541.
    
    
      
       Same — Rule in Equity. — For the proposition in the third headnote, the principal case is cited and approved, in Dilliard v. Tomlinson, 1 Munf. 197. See foot-note to Deans v. Scriba, 2 Call 415.
    
   LYONS, Judge.

Delivered the resolution of the Court, that there was no error in the decree as to the debt; but, that it was erroneous in allowing interest during the war, according to the case of M’Call v. Turner, 1 Call 133, in this Court; and that the decree was likewise erroneous, in continuing the interest, after the date of the decree. That, consequently, the eight years during the war, were to be deducted, and the interest to be carried down to the time of the decree only, as was done in Deans v. Scriba, 2 Call 415, and Deans v. Kunkrall, at the last term.

The decree was as follows:.

‘ ‘The Court is of opinion, that there is error in the said decree, in allowing to the appellees interest on the sum recovered, for the eight years during which the war continued between the United States and Great Britain, and during which, the appellees, who are British subjects, were non-residents within this Commonwealth, " *and no payment or tender could have been made to them; and, also, in continuing the interest to the time of payment instead of to the time of the decree, and making the recovery to be of the aggregate of principal and interest.”  