Kelsey v. Murphy

• Decision Date: 01 January 1858
• Citation: 30 Pa. 340
• Parties: Kelsey versus Murphy.
• Court: Pennsylvania Supreme Court

Page 340

30 Pa. 340

Kelsey versus Murphy.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Schuylkill county.

E. O. Parry, for the plaintiff in error, cited Lord v. The Mayor of New York, 3 Hill 426; Bailey v. The Mayer of New York, 7 Hill 146; Watson v. Fuller, 6 Johns. 283: Stafford v. Mott, 3 Paige 100; Heydle v. Hazlehurst, 4 Bibb 19; Smith's Administrator v. Todd's Executor, 3 J. J. Marsh 306; Shockey's Administrator v. Glasford, 6 Dana 16, 17; Act of 1700, Brightly's Purd. 466; Fitzgerald v. Caldwell, 4 Dall. 252; Respublica v. Nicholson, 2 Dall. 256.

F. W. & J. Hughes, for the defendant in error, cited The People v. Gaine, 1 Johns. 343; McCausland's Administrators v. Bell, 9 S. & R. 388; Penrod v. Mitchell, 8 S. & R. 522; Wither's Appeal, 4 Harris 151; Jones v. Ringold, 1 Yeates 480.^(a)

The opinion of the court was delivered by THOMPSON, J.

This is a question of interest on a verdict. The verdict was rendered on the 16th of December 1851, and two days thereafter motions in arrest of judgment and for a new trial were made. These motions were heard and overruled on the 29th of November 1852, and judgment entered on the verdict, having been held over for a period of near eleven months. After this the cause was removed to this court, and having been affirmed, the plaintiff below moved the court for a rule to show cause why execution should not issue on the judgment, to collect interest after the date of the verdict to the date of the judgment, and also interest on the judgment, and interest after the date of affirmance. On hearing, the rule was made absolute, to include interest from the fourth day after verdict. The error assigned is to the action of the court in making this order.

A careful investigation has not resulted in the discovery of any satisfactory foundation for this order. To support it, some law, usage, or practice, known to exist by courts and juries, debtors and creditors, should be shown. But our experience, as well as our books of practice, are equally at fault in furnishing this support. Nor did the learned counsel, who argued for the defendant in error, point to a single case or dictum in Pennsylvania sustaining his view of the law. The only reference to the point that I have been able to discover in our reports, is to be found in the case of Brenton v. Hoops, 8 Watts 74. And although the exact point now under consideration was not involved in that case, yet being considered analogous, the negative of the doctrine was assented to, without hesitancy, to illustrate the point under consideration. The great experience of the bench at the time, is powerful evidence against the existence of any practice in the courts, warranting the allowance of interest in such cases. The question before the court was, whether executors were chargeable with interest on funds in their hands, during the pendency of exceptions to an auditor's report on their accounts in the Orphans' Court, and to illustrate the negative of this proposition, the court say, "Besides, the case, in other respects, is like the verdict of a jury, during the pendency of a motion for a new trial, in which, if the motion is denied, there is judgment for the principal and interest, previously found, without regard to the intervening time." 8 Watts 74.

Interest has been defined "to be a compensation allowed to the creditor for delay of payment by the debtor," and is said to be impliedly due "whenever a liquidated sum of money is unjustly withheld:" 10 Wheat. 440. And again, — but rather by way of amplification, — it is said "to be a legal and uniform rate of damages allowed in the absence of any express contract, when payment is withheld after it has become the duty of the debtor to discharge his debt." From these definitions, differing but little in essentials, two things must necessarily pre-exist to raise this duty on part of the debtor, namely, the ascertainment of the amount to be paid, and its maturity. If these essentials are wanting, the debt, although existing, cannot be said to be due and withheld, and the duty to pay has not become imperative upon the debtor. Unliquidated demands, past due, will, if otherwise entitled, bear interest, upon the maxim of id certum est quod certum reddi potest. They can be rendered certain. But while the question of indebtedness, under all the ascertained facts in the case is under consideration in the courts, as is the case on a motion for a new trial, the contract of the debtor is suspended. The case is in gremio legis, and is presumed to be held under consideration by the ministers of the law. The debtor can neither pay, nor tender, so as to avail anything, even if disposed to abandon the contest. It is emphatically, and in truth, the "law's delay." It is an incident inseparable from the civil machinery that the law puts in operation to ascertain the truth between man and man, and until the process be gone through with, it presumes that errors may exist, and hence not only indulges such delays...