The opinion of the Court was delivered by.

First, as to the tender, it is clear, according to the English practice,1 that a tender must be made before the commencement of the action; and the practice of this Court, I believe, to be the same. A tender seems to be sometimes confounded with the practice of paying money into Court, under what is called the common rule. It is said, this practice has not prevailed with us ; but this is a mistake. I have known it to be done, and I take it to be as clearly the practice of our Courts as that of the Courts of Westminster Hall, though, from temporary causes, it may not be so frequent. It is too equitable and useful a practice not tobe adhered to. According to the English practice, the defendant is entitled to pay money into Court, as a matter of course, before plea pleaded, and now, even after plea pleaded, it is perpetually done by obtaining a judge’s order for that purpose ; and it is correctly said, no inconvenience ensues to either party from this practice ; because, if any expense has been incurred, that is ordered to be paid at the time of obtaining the rule.2 And this tends to the furtherance of justice ; for if the defendant pays into Court what is really due, the plaintiff ought in jus*146tice to take it. 1 Sellon’s Practice, 278. It is said, however, that in those actions of debt wherein the plaintiff cannot recover less than the sum demanded, as on a record, (which is the present case,) the defendant cannot bring the money into Court, which does seem to be the English practice y but in that case, he may move to stay proceedings on payment of the whole debt and costs. 1 Tidd’s Practice, 483, 562. By whole debt, is clearly meant the payment of so much, as with previous payments, amounts to the whole debt. Thus, in every case the payment of sum actually ^ue> with costs and expenses previously* incurred, will, in one shape or other, protect a defendant from further costs. In the present case, the Court has not looked into the forms of ¡oractice as they may stand between the parties in the case; because it has been desired to consider them in such state as shall embrace the real facts and merits of the case. Then, in this case, if the payment of the balance due on the original judgment, without interest, and with costs and expenses to the time of tender, would have precluded the recovery of interest by way of damages, the verdict must stand'; if not, a new trial must be granted.

Was the plaintiff, then, under these circumstances, entitled to interest by way of damages ? The general rule is clear that interest is recoverable by way of damages on a judgment for a detention of the debt. This was determined at Columbia, April, 1806, in the case of Lambkin v. Nance, [2 Brevard’s Reports, 99.]1 All the judges were present, and the Court unanimous. Since that time, I believe the pi’actice has been uniform and undisputed. But in this ease, it is supposed the general rule does not apply, because, as I understand the argument, the interest by way of damages is only recoverable as an incident of the judgment; that payment of the principal is an extinguishment of the judgment, and that there cannot be a recovery of the incident without the principal. Now if the latter proposition be not true, the two preceding propositions may be admitted, and the plaintiff may nevertheless be entitled to recover. But in the nature of things, when the principal and incident are both due, and when the incident is as much a matter of substance as the principal itself, why should the satisfaction of the principal destroy the incident ? Because it grew out of the principal, it does not follow, that it may not have a more extended duration. Though it be called an incident, it is another name for the fruit of the principal; Domat, (1 vol. book 3, tit. 5, p. 386,) couples interest, damages and restitution of fruits under the same head. The nature of these, and the distinctions as far as any exist between them, he points out, and the first result *he draws, (ibid, 396,) is that interest “is the reparation of damages which is due from debtors who owe sums of money, and who fail in the payment thereof. ” Two things result, that these damages are in the nature of fruits, and that they are legally demandable. Now can there be such an absurdity in the law, a matured system of reason, as that the right, not merely the particular remedy, shall be wholly extinguished by paying a part, and under some circumstances, a small part ? The law is sometimes harsh in its particular results, but it never produces nor tolerates a general or naked absurdity. Yet such, I think, would be the rule con*147tended for. The interest due on a promissory note, where there is no stipulation for interest on its face, is an incident; yet it will not be pretended that, though the principal be extinguished, the right to recover the interest in an action on a note, in the pleadings in which there is not a word said on the subject of interest, is not recoverable. Again, though the principal debt in any action be paid, it will not be denied that the action may in some way be made subservient to the recovery of the cost incurred before payment of the principal. These cases are enough to show that lights are not of such a destructible nature as contended, and that forms are generally moulded to subserve rights, and not rights destroyed by a subserviency to forms. The result, I think, ought to be, that where principal and interest are equally due, the payment of the principal will not destry the right to the interest. (Vide 6 John. Rep. 283, 285. 2 Ves. Jun. 162 ) That interest is due before the principal is paid, is not denied, and that the payment of the principal cannot extinguish, in any just or rational sense, both principal and interest, will scarcely be alleged. The right to interest, both in a legal and moral sense, is finely and clearly set forth by Domat, under the title already referred to.

But this point seems to have been expressly determined in this Court, in the case of Hamilton v. Tiddy, in 1809. In that case (MS ) the defendant had given his ^promissory notes for the amount of the principal of the original judgment, after the action was commenced ; and these the plaintiff accepted as a payment of the principal, and persisted in his action for the recovery of interest only. The jury gave a verdict for the interest only. A motion was made for a new trial. One of the grounds was in the following words : “ Because the verdict for the plaintiff is a palpable absurdity, inasmuch as the verdict is for interest upon a judgment, which it was admitted by the plaintiff’s counsel would be discharged when two of the promissory notes should be paid, (notes which had been given for the principal,) which, at the time of the trial, were not due.” Yet, all the judges being present, the Court unanimously refused the motion. This case certainly decided the point before us, and I think very correctly.

I am, therefore, of opinion a new trial ought to be granted.

I am opposed to the principle of allowing interest on judgment for damages ; but inasmuch as the decisions, had on actions of this kind, appear to have sanctioned the practice, it is on the ground, and to insure uniformity of decision, that I concur.

delivered his opinion as follows :

This was an action of debt upon a former judgment obtained on three promissory notes, by the plaintiff against the defendant, on the 14th June, 1806, to recover damages for the detention of the debt. At November term, 1811, the plea of payment was filed, issue joined, and the cause docketed. On the first day of the term a tender of the balance of the former judgment, without interest, was made, together with costs of the present action, up to the time of the tender. The tender was refused by the plaintiff, on the ground, that he was entitled to interest by way of dam*148ages for the detention of the debt. agra lunucumrawuuui TOura>. At the trial the plaintiff’s* case was proven, the judgment produced, and he claimed interest byway of damages, up to the time of trial. The presiding judge charged the jury not to find interest. A motion is now made for a new trial, on the following grounds:

1. That the presiding judge misdirected the jury in stating that the plaintiff was precluded by the tender from claiming interest by way of damage for the detention of the debt.

2. In stating to the jury, that the payment of money into Court, where the demand was for unliquidated damages, after plea pleaded, was regular and legal.

The case was presented in such a shape below as to establish the position, that in all cases, interest, by way of damages, was recoverable in an action of debt on judgment In short, that judgments would bear interest. I was aware of the decision of the Constitutional Court in the case of Lambkin v. Nance;1 but believed then, and now do, that that case established no more than that damages might be recovered for the detention of the debt, by an action on the judgment; a doctrine which I think was established both by the English authorities and our own. But if the judgment is paid off, I cannot conceive how an action can be bottomed upon it. It does appear to me like raising a superstructure without a foundation.

I do not conceive it necessary to go at any length into the consideration of the plaintiff’s grounds, because, on the trial, the tender was admitted, and the party was to be allowed all the legal advantages which could arise from it. But it has been the invariable rule in our Courts to allow the payment of money into Court after issue ; and the Court will do so to meet the justice of the case, and, if necessary, regulate the pleadings accordingly and this is in conformity with the English practice. 6 Bac. 461, 458, 5U-2.

And the same as to the second ground. The payment of the amount of the debt and costs of a judgment into the hands of the clerk of the Court, who the keeper of the records, is a discharge from the legal* operation of the judgment, and entitles the defendant to a satisfaction of the judgment. If this were not so, the creditor might, by refusing to receive his money, compel his debtor, however reluctantly, to pay interest.

Many authorities have been produced to show, that where money is paid into Court, the plaintiff isnevertheless allowed to proceed; but they are cases sounding altogether in damages, the extent of which not being ascertained, the party is allowed to proceed. The distinction is obvious. In those cases damages being unascertained, the plaintiff must be permitted to prove the extent of them. . In the case of a judgment, the amount of debt has been fixed by the judgment of the Court.

I can readily conceive of a case in which a plaintiff should be allowed to recover damages for the detention of a debt after judgment. But it must be for the detention; as where a defendant removes from a State after judgment, and before the issuing of execution ; or so covers his property, that it cannot be taken in satisfaction of the debt. In these, and *149such like cases, it may be said the debt is detained. But I never can yield my assent to the propriety of compelling a defendant to pay interest where the plaintiff has it in his power to enforce the payment, unless there be a special contract to that effect.

It is said that where a man is permitted to use money, which he may be compelled to pay, he is in justice bound to pay interest; and that the law will imply a contract to do so. To support the first position, it should always be proven that the money was used by the individual who is made to pay it. And if this be necessary, I very much doubt if one person in one hundred would be made to pay it; for I verily believe that it is the moth which has destroyed the rich garments with which many have been clothed in our country.

As to the presumption that the defendant agreed to pay interest, I do not think the circumstances of the *case warrant it. Speaking generally on the subject, I think it more fair to presume, where a judgment has not been enforced, that the plaintiff was apprehensive he could not obtain payment, if he attempted to enforce his judgment, or that he was indolent and slept over his rights. The determination of this case is to settle the case of S. Keith, survivor, v. Wm. Fishburne, executor of Snipes. This, being the case of an estate, will furnish one of the strongest arguments against the doctrine contended for. Yeryfew estates in this country make seven per cent. Establish the doctrine, that judgments bear interest, and if an executor or administrator fail to pay the judgments which are obtained against an estate, of which he may have the management, and in a few years it is swallowed up by this interest. I say nothing of the case of Hamilton v. Fiddy, for it is too imperfectly reported to be relied on.

I am, for these reasons, against the motion.