SIMON DOW et a. vs. JOHN DREW

Assumpsit, for money had and received.

The cause was tried here, at September term, 1823, upon the general issue; when it appeared in evidence, that the defendant, on the 25th December, 1815, loaned to the plaintiffs $400, for which he received their promissory note, payable in five years, with interest. That on the 13th November, 1821, the plaintiffs paid the defendant $200; and on the 5th November, 1822, $886 02, and took up the note. When the note was taken up, the defendant insisted upon being allowed compound interest, to which the plaintiffs objected; but eventually paid the amount of the note, and compound interest. This action was brought to recover back the sum paid above simple interest.

A verdict was taken for the defendant, subject to the opinion of the court upon the foregoing case.

The question in this case is, -whether, when compound interest has been paid voluntarily for a loan of money, an action can be maintained to recover back the amount paid above simple interest ?

On the part of the plaintiffs, it is contended, that the action may be maintained on the ground, that the receiving of eompound interest is illegal. It is true, that courts do not in general allow compound interest. 17 Mass. Rep. 417, Dean vs. Williams.—1 Binney 165.—1 John. 137.

But it is very clear, that they do not refuse to allow it, because it is illegal; for in many cases, where it is reserved by the contract of the parties, they do allow it, 1 N. H. Rep. 179, Pierce vs. Row.—2 Mass. Rep. 568.—4 D. & E. 613, LeGrange vs. Hamilton.—2 H. Bl. 144, S. C.—2 Ves.Jun. 15 Morgan vs. Mather.—8 Mass. Rep. 455.—1 Peere Williams 652, Brown vs. Barkham.—Ord on Usury, 36.

We are, therefore, of opinion, that the action cannot be supported on this ground.