In many of our States the statutes allow parties to a contract to make their own bargain as to the rate of interest to be paid, but provide a legal rate where no special bargain is made. Owing to this state of the law, the question has sometimes arisen, what rate shall be charged, in cases where the contract provides for a higher rate than the legal rate up to the time of maturity, but is silent as to the rate to be charged after the time of maturity until payment Upon this question there have been diverse decisions by the different courts; some holding * that the rate fixed by the terms of the contract shall govern for the time after the breach, and others that the rate fixed by law shall then pre-vaiL It is said that it continues to bear the higher interest in Nevada, (uv) and in Iowa, (uw) and in Connecticut; (ux) and that it bears only legal interest, after maturity, in Wisconsin, (uy) and in Kansas, (uz)

(p) De Barnales v. Fuller, 2 Camp. 426; Attwood v. Taylor, 1 Man. & G. 279, note. In De Havilland v. Bowerbank, 1 Camp. 50, Lord Ellenborough said, that " He thought, that where money of the plaintiff had come to the hands of the defendant to establish a right to interest upon it, there should either be a specific agreement to that effect, or something should appear from which a promise to pay interest might be inferred, or proof should be given of the money being used." In Calton v. Bragg, 15 East, 253, Lord Ellenborough said: "Lord Mansfield sat here for upwards of thirty years; Lord Kenyon, for above thirteen years, and I have now sat here for more than nine years; and during this long course of time, no case has occurred where, upon a simple contract of lending, without an agreement for payment of the principal at a certain time, or for interest to run immediately, or under special circumstances from which a contract for interest was to be inferred, has interest been ever given."

(q) Eddowes v. Hopkins, I Doug. 376; Moore v. Voughton, 1 Stark. 487; Blaney v. Hendrick, 3 Wilson, 205, 2 W. Bl. 761. Where the principal is to be paid at a specific time, an agreement to pay inter-est after that time is implied. Robinson v. Bland, 2 Burr. 1086; Calton v. Bragg, 15 East, 226, per Lord Ellenborough: Boa-dam v. Riley, 2 Bro. Ch. 2; Mountford p. Willes, 2 B. & P. 337.

(r) Commonwealth v. Crevor, 3 Bin-ney, 123; Crane v. Dygert, 4 Wend. 675; People v. Gasherie, 9 Johns. 71; Hudson v. Tenney, 6 N. H. 456.

(s) Dodge v. Perkins, 9 Pick. 368.

(t) Ellery v. Cunningham, 1 Met. 112; Bedell v. Janney, 4 Gilman, 193; Williams v. Storrs, 6 Johns. Ch. 353.

(u) Wood v. Bobbins, 11 Mass. 504. See supra, note (6). (uu) Crosby v. Mason, 32 Conn. 482.

1 There is no rule of law that, upon a contract for the payment of money on a day certain, with interest at a fixed rate, down to that day, a farther contract for the payment of the same rate of interest is to be implied. Per Lord Selborne in Cook v. Fowler, L. R. 7 H. L. 27. - K.

Interest coupons bear interest after demand and non-payment or wrongful neglect (ua) The Supreme Court of the United States, reversing the decision of the Territorial courts of Minnesota, has decided, that the rate provided by statute shall prevail (v)1

Generally, where unliquidated damages are demanded, interest is not payable; nor is it in actions grounded on tort But even in these actions, it is true that interest is excluded in name rather than fact That is, the jury may make use of it in their own estimate of damages, if all the. circumstances of the case lead to the inference that there was a contract or understanding that interest

(uv) Cox v. Smith, 1 Nev. 161.

(uw) Thompson v. Picket, 20 Ia. 490; Hand v. Armstrong, 18 Ia. 324.

(ux) Adams v. Way, 33 Conn. 419.

(uy) Spanlding v. Lord, 19 Wis< 533.

(uz) Searle v. Adams, 3 Kansas, 515.

(uz) Mills v. Jefferson, 20 Wis. 50; Aurora City v. West, 7 Wallace, 82.

(v) Brewster v. Wakefield, 22 How. 118. See also Macomber v. Dunham, 8 Wend. 550; U. S. Bank v. Chapin, 9 Wend. 471; Ludwick v. Huntsinger, 5

Watts & S. 51. Contra, Keene v. Keene, 3 C. B. (n. s.) 143; Gibbs v. Freemont, 9 Exch. 25,20 Eng. L. & E. 555; Kohler v. Smith, 2 Cal. 597; Pridgen v. Andrew, 7 Tex, 461; Hopkins v. Crittenden, 10 Tex. 189; Kilgore v. Powers, 5 Blackf. 22; Chinn v. Hamilton, Hempet. C. C. 438; and Brewster v. Wakefield, 1 Minn. 352, the case mentioned in the text as reversed. See Pruyn v. Milwaukee, 18 Wis. 367.

1 In some States there are express statutory provisions in regard to this point. In the courts of many States interest is allowed as damages after maturity at the agreed rate, though greater or less than the usual rate, provided it is not unreasonably or illegally great Cromwell v. Sac County, 96 U. S. 51; Kohler v. Smith, 2 Cal. 597; Jefferson County v. Lewis, 20 Fla. 980; Daniel v. Gibson, 72 Ga 367; Etnyre v. Mo-Daniel, 28 111 201; (compare Starne v. Farr, 17 Bradwell, 491;) Soice v.'Huff, 102 Ind. 422; Warren v. Ewing, 34 la. 168; Pierce v. Boston, etc. Bank, 129 Mass. 425; Warner v. Juif, 38 Mich. 662; Meaders v. Gray, 60 Miss. 496; Macon County v. Rodger*, 84 Mo. 66; Kellogg v. Lavender, 15 Neb. 256; McLane v. Abrams, 2 Nev. 199; Monnett v. Sturges, 25 Ohio St. 384; Hydraulic Co. v. Chatfield, 38 Ohio St. 575; Hopkins v. Crittenden, 10 Tex. 189; Cecil v. Hicks, 29 Gratt. 1; Thorn v. Smith, 71 Wis. 18. Elsewhere only the statutory rate is allowed after the maturity, whether the agreed rate is greater or less. Ewell v. Daggs, 108 U. S. 143; Gardner v. Barnett, 36 Ark. 476; Suffield Soc. v. Loomis, 42 Conn. 570; Seymour v. Continental Life Ins. Co., 44 Conn. 300; Searle v. Adams, 3 Kan. 513; Rilling v. Thompson, 12 Bush, 310; Hamilton v. Van Rensselaer, 43 N. Y. 244; Sanders v. Lake Shore, etc. Ry. Co. 94 N. Y. 641; Eaton v. Boissonault, 67 Me. 540; Brown v. Hardcastle, 63 Md. 484; Moreland p. Lawrence, 23 Minn. 84; Pearce v. Hennessy, 10 R. I. 223; Manor v. Wilson, 16 S. C. 469.

When it is a term of the contract that interest is to be payable at a specified rate until payment, the interest is recoverable at the agreed rate. Newton v. Wilson, 31 Ark. 484; Hubbard p. Callahan, 42 Conn 524; Capen v. Crowell, 66 Me. 282; Ritter c. Phillips, 53 N. Y. 586.

should be paid, or,if they should be satisfied that the plaintiff would not be adequately and justly compensated or indemnified without the allowance of interest (w)

(w) Arnott v. Redfera, 3 Bing. 353; Dox v. Dey, 3 Wend. 356; Hull v. Caldwell, 6 J. J. Marsh. 208; Sargent v. Franklin Ins. Co. 8 Pick. 90. In Ancrum v. Slone, 2 Speers, 594, Frost, J., in delivering the opinion of the court, said: "The first [ground of appeal J presents the question of law, whether, in a special action on the case, in assumpsit on a warranty of soundness, interest is recoverable eo nomine. It is necessary to the allowance and estimate of interest, to ascertain the sum due, and the time when payable. Accordingly, all engagements or acknowledgments in writing, expressing the sum due and the time of payment, have been recognized as liquidated demands, and on them it has been permitted to recover interest by way of dam-ages. Interest has also been allowed in liabilities to pay money, though not in writing, if the sum is certain or capable of being reduced to certainty, from the time when, either by the agreement of the parties or the construction of law, the payment was demandable. As in cases of money had and received, paid for the use of another, or by mistake, or on an account stated; and on open accounts by express agreement; and when, by the course of dealing between the parties, or the usage of trade, such agreements may be interred. The time of payment must also be determined, either by the agreement of the parties, the course of dealing between them, by known custom, or the usage of trade. Thus, open accounts do not bear interest, though the sum is certain; because by custom the credit is indefinite. But if there be an agreement expressed or implied, it is allowed accordingly. It is not recoverable on a quantum meruit, for work and labor,' nor quantum valebant, for goods sold, nor on a verbal contract to pay a sum certain for rendering a service, 1 Hill, 393; nor on a due bill, payable on demand, though expressed to be for a loan of money, on the day of the date, except from the time of demand: 2 Bail. 276; nor on a balance of a factor's account, due to his employer, except from the time of demand: 1 Hill, 400. Other cases might be adduced to show that the general rule is to allow interests, eo nomine, only on money demands certain or capable of being reduced to certainty, and payable at a definite time, either expressly or impliedly. There may be some exceptions to the rule, and its application has been extended by construction of law. Thus, on a breach of warranty, if the contract is rescinded by a tender of the property to the seller, indebitatus assumpsit will lie for the price paid, as money had. and received by the vendor to the use of the vendee, and interest may be recovered. And in covenant, on a warranty of title, interest may be found, in addition to the value, for a total or partial eviction. These cases proceed on the ground of a rescission of contract and restitution to the plaintiff of the price paid. But a special assumpsit, on a warranty of soundness, for damages, is subject to the rule governing actions sounding in damages, that interest is not recoverable eo nomine." In Holms v. Misroon, 1 Const. R. 21, 3 Brev. 209, which was a special assumpsit, the law is thus affirmed by Nott, J.: "This was a special action on the case, sounding altogether in damages, and therefore could not carry interest. I think the jury might have made the value of the property and interest thereon the measure of damages, and found a verdict for the aggregate amount; but no law has been introduced to show that they could give interest eo nomine, in an action of this sort. ... To the argument, if interest may be allowed in the aggregate damages found by a verdict, why may it not be allowed eo nomine f The reply is, the law does not inquire into the particulars of a verdict for damages, and in some cases interest furnishes a just and convenient measure for the jury. But it is a stated compensation for the use of money, and as it cannot be separated, even in idea, from debt, seems not properly incident to uncertain and contingent damages. The distinction is admitted to be one of form, depending upon the form and cause of action." See also Sipperly v. Stewart, 50 Barb. 62. In the same way, interest may be taken into account by the jury, in assessing damages in trespass and trover. Hyde v. Stone, 7 Wend. 354; Beals v. Guernsey, 8 Johns. 446; Kennedy v. Whitwell, 4 Pick. 466. And in replevin. Rowley v. Gibbs, 14 Johns. 385; Suydam v. Jenkins, 3 Sandf. 614.