majority"> Ames, C. J.

The Court has no doubt as to its j urisdiction of questions relating to the dealings by executors with the assets of estates which they assume to administer, or of its power to punish mal-administration, by allowing compound interest, and ordering rests in an account, as may appear just and equitable. The jurisdiction of Courts of Probate is subordinate to that of this Court, as a, Court of Equity. But this jurisdiction and this power are to be exercised only when the proper case is presented upon a bill aptly framed, with the necessary charges and allegations, suited to afford a respondent an ojoportunity to defend against them. We do not find the bill in this case to be of this character, and therefore deem it unnecessary to give to the cause, in this aspect, further consideration.

There remains to be considered only the question of the amount of interest legally and equitably chargeable upon the note described in the pleadings. By the terms of that note the interest was to be paid in semi-annual installments; but, inasmuch'as the interest was not demanded when due, the defendant contends that any claim for interest upon interest was, in contemplation of law, waived by the creditor. The Court, however, are of opinion that the presumption of a waiver, upon which the defendant relies, and of which some of the authorities speak, is rebutted or overborne by the fact that the debtor, in this- case, was bound, in his character of executor, to make *159 demand of this interest whenever, and as soon as, it became due. To construe his omission for a long series of years to do this, or to make payment to the estate, as a waiver of interest upon the semi-annual installments after these respectively became due, we adjudge would be incompatible with our obligations, as a Court of Equity sitting to ascertain the just sum due upon a mortgage note. We, therefore, shall direct that the account be so made up, as to require the defendant to pay simple interest upon the principal sum of the note, and simple interest upon each semiannual installment of interest, from the day it fell due until the day of payment.

This judgment is to be understood as limited to the case presented. As regards the proper or legal rule of computing interest upon a note of this description, upon which the interest may not have been demanded when due, where the relation between the parties is simply that of debtor and creditor, or that of mortgagor and mortgagee, we intend here to express no opinion.

Let' a decree be entered in conformity to this opinion.

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