The question in this case is whether, upon a bond conditioned for the payment of a sum of money, where no time is mentioned for the payment, and it is not even stated to be payable on demand and nothing is said about interest, interest is payable from the date of the bond. The precise question was decided in England, in favor of the allowance, in Farqhar v. Morris, (7 Term, 120.) None of the cases referred to on the argument from the courts in this state present the exact point. They show indeed that where no time of payment is mentioned, the money is payable immediately, and an action may be maintained at once; and that interest is generally payable from the time the principal ought to be paid. (Wenman v. The Mohawk Ins. Co., 13 Wend. 267;Rens. Glass Fac. v. Reid, 5 Cowen, 587.) In the last mentioned case, Senator J.C. Spencer, in illustrating the principle that interest was payable only after a default, stated as a familiar case, that upon a note payable on demand interest was never allowed but from the time of demand made, by suit or otherwise; and Jacobs v. Adams, (1 Dall. 52,) is referred to at the foot of the page, where the same thing was said byMcKean, Ch. J. It was not, however, called for by that case. We think the case in Term consists best with principle, and that we ought to follow it.
The fact of the periodical payments of $60 per annum during the lifetime of the defendant's testator, and of $42 per annum after that time, can have no just influence upon the question. The former sum was more and the latter was less than the legal interest. They were probably made in such amounts on account of the wants of the creditor, and were not thus measured with any view to the interest. The court below was right in directing interest to be reckoned according to the rule where partial payments are made upon a demand drawing interest, and its judgment should be affirmed.
Judgment affirmed. *Page 408