The subject of interest upon contracts having lately been very fully considered by this Court in Reid v. The Rensselaer Glass Factory, (3 Cowen, 393,) I abstain from an examination of the cases cited on this head. They will be found collected and commented on in that case. I will, however, remark, that the English rule, as laid down by the late cases, is not admitted to be correct; but expressly denied. It is certainly reasonable, that when money is due, and withheld against the consent of the creditor, the debtor should pay interest as a compensation to the creditor, who has lost the use of his money. Whether the debtor has, in the mean time, used the money, or received interest for it from others, in whose hands it may have been, or kept it on deposit, is surely a matter with which the creditors has no concern. His loss is neither augmented nor diminished, by the loss or gain of the debtor. The creditor has lost the use of his money, which is equal to the lawful interestand without recovering that, he is not indemnified.
It will surely not be considered inequitable, that whenever the debtor knows precisely what he is to pay, and when he is to pay, he shall be charged with interest, if he neglects to pay.
*335Such was the situation of these parties. The defendants knew perfectly well the amount of the tax due from the county to the state; and they also knew that they were bound to make payment by a certain day in each year. They were then clearly bound to pay interest, unless they are protected by some exception from the general rule.
Generally, in the accounts between the state and the several counties, where taxes on non-resident lands properly designated, are received in payment, the county cannot know the precise amount due, until the taxes have been examined by the comptroller ; and either admitted or rejected by him. Hence, the propriety of an account current, showing the balance. Until this is shown, there is, in fact, an unliquidated account between the parties. Of course, no interest is chargeable, until the balance is ascertained; and, in this case, none should be charged, until the county had notice of the balance, and an opportunity to pay it.
What shall be a reasonable time from the stating of the account, we may infer from the act of October 24th, 1814, (sess. 38, ch. 29, sec. 4.) which gives the treasurer thirty days.
It has been contended, however, that this act shows that no interest is collectable at all; because interest is not mentioned by it in prescribing proceedings against the county treasurer, where he has improperly detained monies in his hands. If it were admitted that interest is not collectable in that case, it would not determine the question between these parties. The legislature might think it proper to excuse that officer from the payment of interest; though it would be perfectly equitable and legal, to compel its payment. But it is a sufficient answer to that argument, that the act contemplates an entirely different proceeding from the present; a proceeding against an individual who receives the money as the agent of the county; whose sureties would most probably be compelled to pay for his defalcation. This is a proceeding against the original debtors, who have neglected to pay the amount of their debt; who are supposed to have retained the money in their own hands ; and, therefore, come within the general principle ; and are not entitled to that commiseration which ' trme*336times extended to sureties by indulgent and compassionate creditors.
•It is contended, however, that the defendants in this case are mere sureties for their treasurer; and are, therefore, entitled to the benefit of the law in favor of sureties. This is certainly an error. _ He is no more the principal debtor than the comptroller of the state is the creditor. The treasurer is the officer of the county; the supervisors appoint him ; they take his sureties, and judge of their sufficiency; and the county is liable for his default and misconduct. But he is not in default, unless he receives the public money, and neglects to pay it over; or neglects the proper measures to compel its collection. From the facts stated in the case, there is no ground to impute any thing like misconduct to the treasurer. He satisfied the comptroller that he had not received the money, and had performed his duty; else he would have been prosecuted. But it would be extraordinary indeed, to prosecute the treasurer, because the collectors had not paid to him • the money collected by them; though sued for the purpose of recovering it; or which, perhaps, they had not collected, and could not collect; or what is possible, which, the supervisors had neglected to assess. If, however, the fault was in the treasurer, the defendants have their remedy against his estate, and his sureties upon the bond taken when he was appointed.
It is also urged, that the defendants are not liable, because no notice was given to them of the arrears due. No other notice was necessary to be given, than theione which was given to the treasurer. All the correspondence as to the accounts between the state and county, on the subject of the payment of taxes, is carried on between the comptroller of the state and the treasurer of the county. It was the duty of the supervisors to have examined the books and vouchers of the treasurer; and thus to have ascertained the true state of his accounts.
It has also been contended, that the act of 1822, (sess. 45, ch. 127, sec. 5,) has given a legislative exposition to the Iuav on the question of interest. The truth is, that act does not alter the question one way or the other. Balances had been for years accumulating on the books of the treasury. Pay *337ment was delayed by some of the counties, under a misapprehension of the powers of their supervisors, and the act was intended as declaratory of their powers and duties. This case was then the subject of discussion; and the proviso was inserted, expressly to prevent the act having an operation upon it; but not as expressive of any doubt upon the propriety of the charge. The practice of charging interest on balances against counties, at the comptroller’s office, was well known; and the doubts expressed by some of the supervisors, as to raising balances, extended as well to the principal as the interest. The object of the act was to secure prompt collections of balances due the state; and not to sanction doubtful charges, as has been supposed by the counsel for the defendants. No doubts of that kind were ever entertained at the office of the comptroller.
There is no ground for the objection taken, that the plaintiff here seek to recover interest after the principal has been paid. The fact is not so stated in the case ; nor are we to presume the accounts kept in so unskilful a manner as to present that question. For aught that appears, the payments were made and received, generally, on accoimt; which account was composed of principal and interest. The payments exceeding the interest, that part of the account was extinguished. All we learn from the case is, that the sum now due is precisely equal to the amount of interest charged.
On the whole, therefore, I am of opinion, that the plaintiffs are entitled to recover interest; and that thirty days from the time of rendering the account current is the proper time from which to calculate it: and this is the opinion of the court.