Gillespie v. Mayor

The Vice-Chancellor : The object of the bill is to esfa= blish a claim against the defendants for interest on money awarded to the complainant by commissioners of estimate and assessment on opening streets, which it is alleged that the defendants had the use of for a length of time ; and to have suc'h. interest applied by way of set-off and extinguishment of taxes [514] owing by the complainant to the defendants—and, in the mean time, to restrain the defendants from collecting the taxes under a distress warrant. One objection to the defendants being now called upon to pay or allow interest upon the money is, that they have heretofore paid over the principal money, which was accepted without interest, and, after payment and acceptance of the principal, it is contended, a claim for interest cannot rightfully be made. In cases where there is no express contract or obligation to pay interest as well as principal, the payment and acceptance of the principal discharges all liability to pay interest. The rule and the reason for it is well expressed by the chancellor in the case of Fake v. Eddy's Executor, 15 Wend. 80. Another objection is, that the delay in the payment was occasioned by the complainant’s proceeding by ce.rtiora.ri. While that was depending, I think the defendants could not, with safety to themselves, have parted with the money, although the avowed object of such certiorari was not to disturb the award of the commissioners in point of amount, but to settle some questions in relation to the apportionment of the money awarded, as I understand, as between landlord and tenant, yet the process by certiorari took up the whole of the proceedings, and might have resulted in a reversal or modification productive of embarrassment and loss to the corporation if they had, in the mean time, paid over the money; and when the matter of the- certiorari was determined, then came the adverse claim and bill in this court by Mrs. Thomas, and though her bill was not accompanied by an injunction, it was followed by a notice forbidding the payment to the complainant. All this was enough, within the principle involved in Stevens v. Barringer, 13 Wend. 639 to justify the defendants in holding the money and to excuse them also from paying interest. The moment the defendants were required by the order of this court made in the cause, or had the assent of both parties to the payment, they, did pay over the money. It is immaterial, under such circumstances, whether they mingled the money with their other funds and derived some benefit from the possession of it or not, they are not liable to pay interest for it: Williams v. Storrs, 6 J. C. R. 353. [515] The case of Winter v. Blades, 6 J. C. R. 353, has no application. Besides, this is a statutory regulation, and I am at a loss to perceive how the defendants can be brought in default and held liable for interest, except by pursuing the remedy given by the act: 2 Laws of 1813, p. 418, § 183. The order to show cause must be discharged; and the motion for an injunction denied, with costs.