190 



PLEADING, EVIDENCE AND DAMAGES. 



In actions for 

 a sum certain. 



Interest. 



Elfect of 3 & 4 

 "WiU. 4, c. 42, 

 s. 28. 



as are not founded on contract the jury may consider the 

 injury to the feelings and many other matters which have 

 no place in actions of contract (x). 



In an action for the recovery of a fixed pecuniary de- 

 mand, which the defendant has not shown grounds for 

 reducing, by proving a partial failure of consideration,^ it is 

 obviously in general the duty of the jury to give the plaintiff 

 neither more nor less than the sum specified {(/). 



However, by 3 & 4 Will. 4, c. 42, s. 28, it is enacted, 

 " that upon all debts or sums certain, payable at a certain 

 time or otherwise, the jury on the trial of any issue, or 

 on any inquisition of damages, mat/, if they shall think fit, 

 allow interest to the creditor, at a rate not exceeding the 

 current rates of interest, from the time when such debts or 

 sums certain were payable if such debts or sums be payable 

 by virtue of some written instrument at a certain time ; or 

 if payable otherwise, then from the time when demand of 

 payment shall have been made in writing, so as such 

 demand shall give notice to the debtor, that interest will be 

 claimed from the date of such demand until the term of 

 payment : provided that interest be payable on all cases in 

 which it is now payable by law." 



This provision does not extend to actions on contracts 

 which are brought for the recovery of unliquidated damages 

 resulting from the breach of such contracts, and ascertain- 

 able only by a jury, for instance, actions for not delivering 

 goods, &c. {%). Nor, as it appears, to any case in which 

 the claim is not for a sum certain as contradistinguished 

 from one the amount of which is merely capable of being 

 ascertained (a). Its effect is to leave it discretionary in 

 the jury to allow interest even in the cases specified ; in 

 other cases it is to be taken as Kmiting their discretion, 

 unless there be proof of a written instrument, whereby 

 the sum certain is made payable at a certain time (h), or 

 of a written demand of the money containing a notice that 

 interest from thenceforth will be claimed (c) ; and in all 

 those cases, in wliich it was payable by law at the time the 

 Act was passed, to make it compulsory on the jury to give 

 interest. 



{x) Per Pollock, C.B., Hamlw t. 

 Gnat Northern Hail. Co., 1 H. & N. 

 410. 



[i/) Chit. Contr. 12tli ed. 848. 



(z) Ibid. 661. 



(«.) Rill V. South Siaffordshire 

 Rail. Co., L. E., 18 Eq. 154; 43 



L. J., Ch. 566. 



ill) Taylor v. Salt, 3 H. & C. 

 452. 



(c) Harper v. TFilliams, 4 Q. B. 

 219 ; Mowattr. lord Loiiclesborough, 

 3E. &B. 307. 



