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Report No. 63

2.15. Lord Ellenborough's view.-

However, in a subsequent case-De De Havilland v. Bowerbank, cited in London Chatham etc., Railway Co. v. South Eastern Railway, 1893 AC 438.-Lord Ellenborough laid down a somewhat different rule; he said that interest ought to be allowed only where there is a contract for payment on a day certain, as on bills of exchange1, where there is an express promise3, where it may be inferred from the course of dealing2 and where the money has been actually used and interest made of it. This enunciation is much more limited than the doctrine laid down by Lord Mansfield.4

1. Arnost v. Reafer, 3 Hong 353.

2. Eddowes v. Hopkins, 1 Douglas 376.

3. Graven v. Tickell, 1 Ves Jun 60.

4. Para. 2.14, infra.

2.16. In 1893, Lord Herschell, in the House of Lords said1 that, "Whatever might be said in regard to the older authorities upon the matter of interest, I am of opinion that the law laid down by Lord Page v. Newman, 9 B&C 378 (381) (King's Bench presided over by Lord Tenterden, with Baylay Littledale and Parke JJ.)., to the effect that 'interest is not due on money secured by a written instrument, unless it appears on the face of the instrument that interest was intended to be paid, or unless it be implied from the usage of trade, as in the case of mercantile instruments, is not open to question'."

1. London Chatham & Dover Railway Co. v. South Eastern Railway Co., 1893 AC 439 (Lord Herschell).

2.17. In England, the Civil Procedure Act, 1833-popularly known as Lord Tenterden's Act-was intended to make the law more liberal. In form, it gives the impression of a statute intended to narrow down the right; but, in reality, its object was to widen the power of the court. Of course, the Act did not go far enough. That is why, in 1934, a wider legislative provision was enacted.1

Before Lord Tenterden's Act, interest was payable at common law and in equity in certain cases only. The object of that Act was to make the law in regard to the granting of interest more liberal2, and not less liberal. To ensure this object, a proviso was added, leaving untouched those cases in which, there was already a right to interest when the Act was passed. It has been stated that the object of Lord Tenterden's Act was to put all debts of a fixed amount, and due on a fixed day, on the footing of a bill of exchange.3

1. Para. 2.20, infra.

2. See the judgment of Lord Watson in London Chatham & Dover Railway Co. v. South Eastern Railway Co., 1893 AC 429.

3. William Wills Q.C., in argument in London Chatham etc. Railway Co. v. South Eastern Railway Co., 1893 AC 429 (432).

Interest Act, 1839 Back

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