De Havilland, Surviving Executor of Buzoil, v Bowerbank
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1807 |
| Date | 01 January 1807 |
| Court | High Court |
English Reports Citation: 170 E.R. 872
IN THE COURTS OF KING'S BENCH AND COMMON PLEAS.
[50] Same clay de havilland, surviving executor of bezoil, v. bowerbank (In an action for money had and received, the plaintiff is not entitled to interest, even from tie time of making a demand of the principal ; unlesr-., 1st, he give in evidence an express promise to pay interest, or, 2dly, shew something from which such a promise may be inferred . or, 3dly, prove that the money has been used by the defendant, and interest has been made of it. And com me setnble, the only other instance in which interest is recoverable, is upon a contract for the payment of money on a certain day, as on bills of exchange, promissory notes, &c.) [Applied, Higgins v Sargent, 1823, 2 B. & d 348. Distinguished, M'Kewans Case, Re Maria Anna and Stewbank Coal and Coke Co , 1877, 6 Ch. D. 447 Considered, London, Chatham and Dover Raihvay v South-Eastern Railway, [1893] A C 429.] Assumpsit for money had and received by the defendant to the use of the plaintiff and the deceased executor ; with a count laying the promise to the plaintiff only. Plea, non assumpsit. The facts as admitted were shortly these -Under a commission of bankruptcy * Vide Minors v. Leeford, Cro. Jac. 114 , Cnt tie v. Cowell, Peak Cas. 4 ; Lotd Cromwell v. Denny, 4 Co 13, 14 ; Bui N. P 5. When actionable words laid in the declaration are proved, other words actionable in themselves may be given in evidence, to shew quo ammo the former were spoken. Rustell v. Macquister, Middx. sittings after H. T 1807 -In an [49] action for slander, Garrew for plaintiff having proved the words in the declaration, offered evidence of other actionable words spoken by defendant afterwards -Gibbs objected to this evidence on the ground, that if such words were taken into consideration by the jury, defendant would be made to pay a double compensation in damages for one and the same injury, viz 1st, in the present action, and, 2clly, in another action that might he brought for those words , and he said he had always understood the distinction to be between words which were actionable and those which were not; the first might be given in evidence, though not mentioned in the declaration ; but not the last Per Lord Ellenborough.-Although there has formerly been such a distinction, it is not founded upon any principle. You cannot give in evidence special damage not laid in the...
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...remaining unpaid was a question upon which there had been considerable conflict and confusion in the authorities prior to 1829. In De Havilland v. Bowerbank (1807) 1 Camp 50, Lord Ellenborough in the interests of certainty had attempted to lay down a defined range of cases in which interest......
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..."liberal" line of authorities including a decision of Lord Mansfield in Eddowes v. Hopkins 1 Douglas 376, and Lord Ellenborough in De Havilland v. Bowerbank 1 Camp. 50. Lord Mansfield stated the position in these terms: "…'that though by the common law book debts do not of course carry in......
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