Opinion
Fall Sessions, 1832.
SUMMONS DEBT. Pleas, nil debet; payment and the act of limitations. Reps. and issues to first and second pleas. Demurrer to the third plea.
Hamilton and Booth, for plff.
J. A. Bayard, for deft.
This was an action for the arrears of an annuity of forty pounds granted by the will of Thomas Beeson to his wife Rebecca Beeson and charged upon the real estate devised to his two sons Jonathan and Thomas Beeson. The amount claimed to be in arrear at the death of Mrs. Beeson was $382 92 which sum plff. claimed, with interest by way of damages.
In the progress of the cause and after the plff. had closed his case the deft.'s counsel moved a nonsuit for want of probate. The plff. produced a probate which he had inadvertently neglected to offer while laying his case before the jury. The deft. insisted it was too late; but the court received the probate and refused the nonsuit. A probate is no part of the evidence and if produced when demanded in any stage of the cause it is sufficient.
The principal question in the case was whether interest was allowable at all on arrears of an annuity; and, if allowable in any case, whether it could be recovered as damages in the action of debt, Tew vs. Lord Winterton, 3 Bro. Ch. Rep. 490. It was contended that in debt the damages were always nominal, and that even if interest might be recovered in the action of assumpsit or on a proceeding in chancery it could not in this action. This question was reserved for hearing and decision by the court, and the jury found a verdict for $240 90 inclusive of interest.
The case was stirred at a subsequent term but not much argued on this point. The court however said that the law in this country on the subject of interest was in many respects different from the English law. It has been decided in this state that interest is allowable on the arrears of an annuity given in lieu of dower. Buckmaster vs. Buckmaster; Chancery; Kent. (See note to Waples, ex'r. vs. Waples et al. post.)
Judgment for plaintiff.