Nathan B. Haswell v. Farmers and Mechanics' Bank, 26 Vt. 100

The opinion of the court was delivered by Isham, J. We think the defendants are not chargeable for the interest, for which this suit is brought. A claim for interest must rest on one of two grounds; either upon a contract express or implied, or as damages for some •wrongful act or default in the payment of that which is due another. The liability to pay interest as damages, rests upon a principle distinct from the liability to pay interest as a compensation for the use of money. 1 Am. Lead.

Cases 496, (note.)' There is no pretence in this case, that the defendants are liable for this interest on any contract, nor from the consideration that they have derived any benefit from the use of the money. The principal, on which interest is demanded, arose from an assessment of Railroad Commissioners, and was deposited in the Bank under the directions, and subject to the order of the Chancellor. Comp. Stat. 196 § 25. When money is thus deposited, it is placed in the custody of the law, and cannot be recovered by, or paid to any one, until the order of the chancellor to that effect is made.

The defendants were mere depositaries of the money without reward, and are no more chargeable with interest on that . sum, than is a trustee, by the mere fact of having the money of the cestui que trust in his hands; or a mere receiver, bailee, or stake-holder, in whose hands money remains ready to be paid over. In all these cases, they are not chargeable with interestunless a benefit has been derived from the use of the money, or they, in some way, are placed in fault. “ The question turns on the fault of the party.” Dodge v. Perkins, 9 Pick. 369, 386. 1 Am. Lead. Cases, 499, 510. Hooper v. Brinton, 8 Watts 73.

It appears from the case, that an order for the payment of this money to the plaintiff was made by the chancellor on the 20th of July, 1850. If no appeal had been allowed, and a legal demand had been made, the defendants would have been chargeable with interest, on their neglect or refusal to pay the money as directed by the chancellor. The Vt.

Central Railroad Co. however, who were one of the parties to that proceeding, requested and were allowed by the chancellor an appeal from that order and decree, to the next term of the Supreme Court, and in pursuance of that appeal, the case was duly entered upon the calendar of that court. Haswell v. Vt. Central Railroad Co., 23 Vt. 228.

The order and decree of the chancellor was not probably vacated by that appeal, as it was improperly allowed, and was properly dismissed by the Supreme Court; yet during the pendency of that appeal and while the parties to that proceeding were contesting their rights, and the propriety of that order of the chancellor, it should be considered and treated as a suspension of that order until the appeal was finally disposed of. It will afford a reasonable excuse for the defendants in not paying over the money, as no decree had been made by the chancellor, which he himself treated as a final order in the case.

It fully appears, that the defendants were at all times ready to pay the money to any one, when they could do it with safety to themselves. It so appears, at the time when they were called upon by Mr. Smalley, and from the fact that the money was paid immediately after the appeal was ended and dismissed. It would be unreasonable to require these defendants to assume the risk and responsibility of paying over this money, while the parties were contesting the propriety of that decree; and since the chancellor himself has allowed and permitted the appeal to be taken and prosecuted.

Under such circumstances, they cannot be chargeable with interest on that money until after such an order for its payment has been made, as the chancellor shall treat as his final order in the ease, and which will afford the Bank such a voucher for its payment, as will free them from all risk and responsibility in making it. Without deciding other objections which have been made, we think, on general principles, that this suit cannot be sustained. The judgment of the County Court is reversed, and the case remanded.