¶1But
¶2refused to give the instruction; because, if the defendant had a right to draw it from the marshal, the money was, in effect, in the defendant’s hands.,
¶3THE COURT
¶4at the prayer of the defendant’s coursel, instructed the jury, that the plaintiff cannot recover in this action on the count for money had and received, unless the jury should be satisfied by the evidence that the defendant received the money to the plaintiff’s use. Yerdict for the plaintiff, $81.75, to bear interest from the 4th of April, 1832.
¶5Mr. Coxe, for defendant, moved for a new trial, upon the ground that upon the count for money had and received, the jury had given interest by way of damages; and the cost of protest of the defendant's acceptance, which was not given in evidence upon the special counts, which were abandoned, and cited several cases.
¶6But THE COURT said, that in this court, the jury had always been allowed to give damages for the non-performance of the contract; and that it was competent for them to make the interest the measure of their damages; and that interest may be recovered on money received to the plaintiff’s use, after demand and refusal to pay.
¶7Upon the plaintiff’s remitting the cost of protest, THE COURT refused to grant a new trial.