delivered the court’s opinion.
Two questions are submitted to the court upon the case stated. 1. Whether the defendant is intitled to retain the proportion of general average, chargeable on the insurances made by the private underwriters, by the North America Insurance Company, and by the Union Insurance Company on the defendant’s goods? 2. Whether on the facts laid before the court, the plaintiffs are intitled to interest?
$ The goods of Warder and son, in whose place the plaintiffs stand, were acquitted; but they were afterwards sold by the defendant’s agent, and the proceeds applied to the payment of sundry costs, charges and expenses, which constitute the subject of general average. Mr. Foussat, one of the persons liable to contribute to this average, has paid his proportion to the defendant. There is no doubt therefore but the defendant is answerable to the plaintiffs for the amount received of Foussat. Nor do I think there is any doubt of his being answerable for the average originally due from himself, on account of his own goods. It is no answer, to say, that he has abandoned-to his underwriters, and the plaintiffs must look to them. The defendant was originally answerable to Warder and son, and consequently to the plaintiffs who represent them, for the amount of his contribution. It is conceded that an action at law would have lain against him, according to the decision in Birkley v. Pres-grave. 1 East 220. Being once answerable, it was not in his power to throw off that responsibility, by any act of his own. His abandonment was his own voluntary act. He therefore remains answerable to the plaintiffs, and must look to the underwriters for his indemnity.
*301It is next to be considered, whether the defendant may retain on account of the contributions due from other persons. The plaintiffs say he cannot, because he was no agent of Warder’s, and had no right to sell their goods, and apply their money without lh.:ir consent. Qn the other hand the defendant contends, that from the nature of the case, having' joined the captain in the claim and defence of vessel and cargo, he had a lien on every part of the cargo for the amount of all the expenses, and that the court of Admiralty would not liberate any of the cargo, till the whole costs were paid. This does not seem to be denied by the plaintiffs’ .counsel, so far as concerns the costs of the court; but they say that these costs bear a small proportion to the fees paid to counsel &c., which are not properly costs of suit. There will be no occasion for entering into this question, because it appears, from the state of the case, that the goods of Warder and' son, were only delivered to the defendant, “ on his paying, “or securing to be paid, all the costs and expenses, in “ consequence of the capture, trial and proceedings.” Who it was that withheld the goods, or exacted this condition, does not appear. But it cannot be said that the defendant received for the use of the plaintiffs, that part of the money, which he was obliged to apply to other uses, by the condition annexed to the delivery of the goods. The defendant had therefore aright to retain the full amount of all costs and expenses, except that part which was due from himself.
2. As to interest. The defendant is not held to the same strictness in resisting the claim to interest, as he would be on a plea of tender and refusal» Interest, in actions like the present, is not a matter of course, but depends on the conduct of the parties. If the defendant has delayed payment improperly, he is chargeable with interest. On the other hand, the plaintiff may forfeit his claim to interest, by unreasonable behaviour. If the defendant offers to pay as much as in justice he ought, and the plaintiff refuses to receive it, and brings an action, it would be wrong that the defendant should pay full interest, after being driven to the expense of defending himself against an unjust suit. But in the present case, the fault does not seem to lie altogether on *302either side. The plaintiffs insisted on too much, and the defendant offered too little. There was a necessity therefore for a suit. That being the case, and there being no reason t© suppose that the defendant has not made use of the money, we think he should be chargeable with interest.
Judgment for plaintiffs.