¶1dissented, and delivered the following opinion:
¶2Interest is deemed to be a compensation /or not paying money when due. On a note, payable at a particular day, with interest, it is payable from the date. 5 Vesey, 803. Coop. 29. 2 Mass. 568. 8 Mass. 221. If interest is not mentioned, then it runs only after the day of payment. 2 Burr. 1081. Any instrument of writing, by which money is to be paid on a day certain, bears interest thereafter, not as damages, but as part of the contract. 3 B. & C. 490. 2 Vesey, 133, 134. It will be computed on all notes, bills, contracts, or debts, which, on their face, or in the nature of the contract, carry interest from the day when payable. 2 Vesey, 306. Dick. 307, 308. Burr. 119. But, if there is no time of payment, or, if payable on demand, then, after demand made. 1 Vesey, 64. These are the rules which prevail at law, as well as in equity. Interest is given as an incident to "the debt, and under rules which preclude all discretion on the part of the courts. Lord Ellenboeough, in delivering the opinion of the court in the case of Cotton vs. Brag, 15 East. 226, said, “Lord Mansfield sat here upwards of thirty years; Lord Kenyon, for above thirteen years; I have now sat here for more than nine years, (a period of 52 years), and, during this long course of time, no case has occurred where, upon a simple contract of lending, without an agreement for the principal, at a certain time, or for interest to run immediately, or under special circumstances, from whence a contract for interest was to be inferred, has interest ever been allowed.” Most of the cases in this country recognize the same principle. It is one of common sense, easily applied. In Jacob vs. Adams, 1 Dall., Chief Justice McKean said, “ Interest, upon a note payable on demand, is never allowed but from the time of demand made, by suit or otherwise.” The same principle is sustained in Mountford vs. Wills, 2 B. & P. 337, and in Robinson vs. Bland, 2 Burr. 1085. So in New-York, in Clark vs. Brown, 4 J. R. 133; 5 Cow. 611; 15 J. R. 12. Also in Kentucky, in Gore vs. Buck, 1 Mon. 207; and Bartlett vs. Marshall, 2 Bibb, 471.;. and in most of the American courts. 1 Baldwin’s Rep. 539. All concur, that it is only where a default of payment is made, that inte* rest attaches. To allow interest upon a note on demand from its date, without an averment of demand, is, I conceive, a departure from the spirit of the law of interest, and from the reason of all its rules in other cases, neither recognized by the common law, nor authorized by statute. The objection raised to the judgment of the Circuit Court, in allowing interest in this case, from the date of the note, without an averment of demand on that day, is, in my opinion, well taken, and the judgment ought, for that reason, to be reversed.