In the first count of the declaration, the plaintiff alleges, that on the first day of January, 1840, the defendant was indebted to him in the sum of four hundred 'and forty-five dollars and fifty-six cents; and it is stated in the bill of exceptions that the plaintiff offered evidence tending to prove his cause of action. Now, although it was not indispensable to prove an indebtedness on the precise day alleged, yet if necessary to sustain the judgment, it may be presumed that the sum demanded was due at the time stated. In this view of the case, the charge of the Circuit Judge is fully sustained by the decision of this Court, in Moore vs. Patton, Donegan & Co. 2 Porter’s Rep. 451. In that case, the Court say — •“ It is a rule founded in justice, that when a man has been kept out of his money, he should be allowed a-reasonable compensation for its use.”

In the case of Crawford vs. The ex’ors of Simonton—7 Porter’s Rep. 110—we held, that although the statute, in some cases, gave interest, eo nomine, to the creditor, it did not neces*386sarily follow, that in,cases not within the statute, he was not entitled to damages for a delay of payment as a substitute for interest ; but in such cases the statute rate of interest must be considered as the value of the use of money, and furnish a rule by which to admeasure the damages for its detention. It is further said, “ that the allowance of interest, except upon the particular liabilities embraced by statute, must depend upon the circumstances of the case. To avoid its payment, it is competent for a defendant to show that he is not in fault in the non-payment of the principal sum ; as, that the plaintiff had been absent from the country, without having left a known agent, &c. But if the defendant offers no excuse for his delay, the plain tiff is entitled to recover interest as damages.” This case was decided upon a review of many English and American adjudications on the point, and we think is a direct authority to show that damages, equal to the statute rate of interest, are recoverable upon a sum of money due for use and occupation. This view renders it unnecessary to consider whether the present cáse comes within the statute.

There is then, no error, either in the charges given to the jury, or in that refused, unless it be in having submitted it to their discretion, to allow or refuse interest where no excuse had been offered for the non-payment of the plaintiff’s demand; but if in that there be error, it was for the defendant’s benefit, and he can not complain.

It remains but to add, the judgment must be affirmed.