Dissenting opinion, per DANFORTH, J.

interest is changed during the default, the damages increase or diminish pari passu in the absence of any exception in the statute. The rule of damages does not change, but simply the computation.

Fifth. The cases which hold that a note payable with interest, but specifying no time, draws interest until default or payment at the statutory rate existing when the note was made, proceed upon an interpretation of the contract. They do not govern the case of a judgment, as right to interest on a judgment is given by law, and not by the agreement of the parties.

I therefore concur in the conclusion reached in the opinion of EARL, J.

DANFORTH, J. (dissenting). Judgment upon contract was entered in favor of the plaintiff, on the 10th of February, 1877, for the sum of $2,994.64. On the 19th of November, 1883, execution was issued for its enforcement with directions to collect the whole amount, with interest at seven per cent. The defendants applied by motion to the Special Term of the Supreme Court for an order restraining the sheriff from collecting interest at a greater rate than six per cent per annum after January 1, 1880. It was refused and the decision then made was affirmed by the General Term of that court.

It is not denied by the appellant that the order appealed from was properly made, if the act of 1879, relating to "the interest of money" (Laws of 1879, chap. 538), is to regulate the computation of interest upon the judgment, and whether it does so or not is the only question before us.

The statute (supra)was passed on the 20th day of June, 1879, to take effect on the 1st of January, 1880, except as to contracts or obligations made before its passage. These are declared to be exempt from its operation, and must consequently be governed by 1 R. S. 771, § 1, which continued the rate of interest at seven per cent. It is well settled that a judgment merges or extinguishes the right of action which before existed, and itself becomes a debt or contract of record for the

Dissenting opinion, per DANFORTH, J.

payment of a sum of money adjudged to be due from the debtor to his adversary, or the person to whom it is awarded. (1 Black. Com. by Chitty, 455; In re European Central R. Co., L. R., 4 Ch. Div. 33; Dash v. Van Kleeck, 7 Johns. 477; Pease v. Howard, 14 id. 479; Andrews v. Montgomery, 19 id. 162; Sayre v. Austin, 3 Wend. 496; Taylor v. Root, 4 Abb. Ct. App. Dec. 382.) It is so styled in the statutes (1 R. S., vol. 2, p. 87, § 27), where the representative of a deceased person is required to pay "the debts" of the deceased, and among other debts, "judgments," according to their priority (id. 359, § 7); or if recovered after the death of the debtor, while it does not bind the real estate which he had at that time is still to be considered as " a debt" of a superior nature and to be paid in the usual course of administration. So it is styled a "demand" which may be set off (id. 354, § 18); and in the statute of limitations is classed among “contracts, obligations or liabilities" (id. 295, §§ 90, 91). We speak of a judgment debt, a judgment debtor and a judgment creditor. Its entry of record not only determines the relations of one party to the other, but fixes the rights and obligations of both. At common law it bore no interest (Creuze v. Hunter, 2 Ves. Jr. 162), but interest might be recovered in an action of debt brought upon the judgment (id, 167). These cases are cited by KENT, Ch. J., in Watson v. Fuller (6 Johns. 283), in setting aside an execution by which the plaintiff undertook to collect interest upon a judgment, saying, "The execu tion must follow the judgment, and can only be commensurate with it." This was in 1810.

In 1813 it was provided (1 R. L. 506, 556), that in all executions on judgments thereafter to be recovered upon contract, it should be lawful to direct the collection of interest from the time of recovery, until paid, and it was held in Sayre v. Austin (supra, Jan., 1830), that a judgment was a debt due "in every possible sense of the term." "A debt," say the court, "due with interest from the time of its rendition, which since the statute, may be collected upon the execution, and before the statute could have been recovered by action

Dissenting opinion, per DANFORTH, J.

of debt upon the judgment," treating it as a demand in the nature of specialty. By the Revised Statutes (vol. 2, p. 364, § 9), the law above referred to was extended so as to apply not only to judgments upon contract, but to judgments upon "any prior judgment," and it was made lawful to direct, upon such execution, "the collection of interest on the amount recovered from the time of recovering the same until such amount be paid." It is plain that it was not by virtue of these statutes that a judgment carried interest, but because it was debt, and COWEN, J., says in Klock v. Robinson (22 Wend. 160), that the legislature included a judgment for the reason that a judgment "is, for the purpose of interest, equivalent to a contract." Afterward, however, an absolute right thereto was given by statute, and a new suit for its recovery rendered unnecessary. (Laws of 1844, chap. 324, § 1.) "Every judg ment," it says, "shall bear interest from the time of perfecting the same," and this was substantially re-enacted in 1877. (Code, § 1211.) No rate is specified, and therefore the general statute regulating interest in force at the time of its recovery, does, by operation of law, enter into and form part of the obligation, and has the same force as if directly referred to. In Rensselaer Glass Factory v. Reid (5 Cowen, 587), the right to recover interest when an account has been liquidated by both parties, and when a demand is liquidated by a judgment, is said to be founded upon the same principle, viz.: that there is an implied contract to pay.

The course of English legislation and decision is not unlike our own. By 1 and 2 Vict., chap. 100, § 17, it is enacted that every judgment shall carry interest at the rate of four pounds per centum per annum until satisfied. In European Central R. Co. (supra), judgment had been obtained upon a railway debenture bearing six per cent interest, and the plaintiff claimed a right to that rate after judgment, but the court held otherwise, upon the ground that, after the recovery of judgment, it became the sole debt between the parties, saying, "the original debt is gone transit in rem judicatum, and a fresh debt is created with different consequences," and there is no other debt

Dissenting opinion, per DANFORTH, J.

or obligation affecting them. It seems plain then, upon principle and authority, that the obligation of the judgment includes the payment of interest as well as principal, and as it was in being before, and at the time the act of 1879 took effect, it is by its very terms excluded from the operation of that act.

A note, by its terins declared to bear interest until paid, but naming no day of payment, although made before the statute referred to, would, if paid after its passage, entitle the holder to the rate of interest prescribed by the statute in force when the note was made. Such would be the effect of the contract. If day of payment was named, and it fell due on and after the passage of the act, it would bear interest until that time according to the statute in force when made., Up to that time it was part of the debt (Keene v. Keene, 3 C. B. [N. S.] 144), and after maturity it is given as damages, and according to the statute then in force; for at that time, the law interferes not only to allow, but to regulate the rate of interest, on account of a detention beyond the term of the contract. In the last case, therefore, interest would run by operation maturity, and by contract up to that time. ment is like the note first supposed. It bears interest until paid, by force of the contract which the law implied into it at the time it was recovered. It then became a contract with no time of payment specified, but beginning to bear interest, and by the implied agreement to continue to bear it until paid.

of law, after Now a judg

In Miller v. Burroughs (4 Johns. Ch. 436) the bond expressed six per cent per annum as the rate of interest, but the plaintiff claimed seven per cent, the statute rate, after pay-day had passed. The court decreed interest at six per cent, saying: "The contract must control until it ceases to operate by being merged in the decree." The condition of the bond is not set out, and it may be inferred from the remark of the court that the agreement extended until the money should be paid. If so, it would resemble the bond considered by us recently in Taylor v. Wing (84 N. Y. 471), where it was stipulated in plaintiff's mortgage (made prior to 1879) that the principal sum should bear interest at seven per cent until paid. It was

Dissenting opinion, per DANFORTH, J.

admitted that there was no error - notwithstanding the statute of 1879 (supra) subsequently passed in allowing the plaintiff interest at seven per cent until the date of the decision of the case. But after entry of the judgment, then by virtue of the judgment in which the mortgages were merged.

In Paine v. Caswell (68 Me. 80; 28 Am. Rep. 21), a note, similar to one I have above supposed, came before the court; it read: "For value received, we promise to pay John S. Paine, or order, $500 and interest at ten per cent." The ques tion was for how long a period was that rate of interest to be paid. It was held first, that a note payable at a time certain, with interest exceeding six per cent (the legal rate), would draw the stipulated rate till the time specified for payment, and no longer, for the bargain for interest extended only to that time, and after that the statutory rate, allowed by way of damages; second, that it would be otherwise where the note stipulated for the extra rate, after as well as when it became due, or until paid; third, that upon the contract in question, interest should be reckoned up to the date of judgment to be recovered upon the note. It was held that the substance of the contract was that the maker would pay the stipulated rate of interest so long as the note might run. So it is with a judgment and the statute which takes the place of the contract.

In Klock v. Robinson (supra), Judge CowEN examined the question with his accustomed care and fullness of research, and quotes with approval the saying of the court in Prince v. Lamb (Breese, 299) that "the judgment is a debt, and may be assimilated to a contract to pay a sum certain with interest. Such interest is recoverable as a part of the contract, in the present case, by way of damages for the detention of the debt, the interest being a part of the judgment."

It would seem to follow that the judgment in the case before us was a contract of debt-an obligation bearing interest until paid, and by necessary implication at the rate fixed by law at the time it was entered, and by the very terms of the statute (Laws of 1879, supra) to be unaffected by its provisions. Suppose the statutes permitting interest to be col