(orally). So far as the merits of this case are concerned, whether right or wrong, I gave the case my best thought and judgment; and it will be unnecessary for me to go over the ground again, because I could add nothing to what I have said on that subject. Leеte v. Mining Co.,
The general rule is well expressed in 11 Am. & Eng. Enc. Law (1st Ed.) p. 395:
“Where one receives an advantage or benefit from the use of the money of another, he is chargeable with interest. Interest is always recoverable in this country on money lent. Whenever money has been received by a party which ex aequo et bonо he ought to refund, interest follows as a matter of course.” Buttner v. Smith (Cal.)36 Pac. 652 .
The difficulty arises from the peculiar wording and punctuation of the statute of this state, which reads as follows:
“Section 1. Section four of the above act is amended so аs to read as follows: ‘See. 4. When there is no express contract, in writing, fixing a different rate of interest, interest shall be allоwed at the rate of seven per cent, per annum for all moneys after they become due on any bond, bill or promissory note, or other instrument of writing, on any judgment recovered before any court in this state for money lent, for money due оn the settlement of accounts from the day on which the balance is ascertained, and from money received to the use of another.’ ” St. Nev. 1887, p. 82.
By strict grammatical rules, under the peculiar punctuation of this statute, and upon a cаsual reading thereof, it might appear that the
Entertaining these views, I was unwilling to decide the question without investigating the facts concerning the original adoption of this statute, from whenсe taken, and the changes made therein by amendments, etc. In the Statutes of 1861 of the territory, when this statute was first adopted, the punctuation was different from what it is in this later statute. It reads:
“When there is no express contract, in writing, fixing a different rate оf interest, interest shall be allowed at the rate of ten per cent, per annum, for all moneys after they become duo on any bond, bill, or promissory note, or other instrument of writing, on any judgment recovered before any court in this territory, for mоney lent, for money due on the settlement of accounts, from the day on which the balance is ascertained, and fоr money received to the use of another.” St. Nev. 1861, p. 100.
The word “from,” in the statute of 1887, should be “for.” That is made perfectly сlear by this reference. Now, it will be noticed that the statute of 1861 shows a comma after the word “territory”; that is, it gives interest on any judgment recovered before any court in this territory, then gives interest for money lent, then for money due, etc. It would havе been clearer to have used a semicolon instead of a comma, but the other gives the sense. The punctuаtion is the same in the General Statutes as it is in the statutes of 1861, showing how the original bill read when it was passed. The only differencе is that in the General Statutes the clerical error first crept in by using the word “from” instead of “for.” The amendment was copiеd from the General Statutes, and some bungling clerk punctuated it so as to deprive it of any reasonable constructiоn without reference to the previous statute.
Thinking the legislature must have copied this from the statute of some other state, and that it was my duty to find out what the intent of the legislature was, I have made the search, and found that this statute was taken from the statute of California, a few words left out, but the punctuation in the statute of 18(51 gives the statute the same meaning that would be аpplied to it in California. This puts the matter beyond any doubt. The statute of California declares that interest shall be allоwed at a certain rate: “First, for all moneys after they become due on any bond, bill, promissory note or other instrument оf writing,” — just like ours. Then comes a semicolon, which makes the correct punctuation (our statute of 1861 gives a