Interest is always allowed when a sum is to be paid at a certain time, the law aSSUM ing that legal interest begins at that date; and the courts of this country have been very liberal in inferring that an understanding for interest existed; but if claims are unbertain or unliquidated, interest will not be allowed. A most important ,distinction exists between liquidated damages and a fixed sum agreed upon as a penalty, as in bonds. In the first case the parties have fixed a sum certain as the measure of damage from breach of contract; but the courts -will often refuse to consider the amount as intended to be absolute and will measure the actual loss. The intent of the parties on the point must govern rather than the language. The tendency in this country is to frequently consider a stipulated sum as liquidated damages and but rarely to regard it as a penalty; and the first, especially if there is appearance of usury or oppression; and, if there is nothing to certainly determine the damages outside of the stipulation, they will invariably be con sidered liquidated. llecoupment and set-off will be allowed even where the demand is not for a liquidated sum.
Vindictive or exemplary damages have already been referred to. The principle
applies mainly in cases of tort and very materially enlarges the considerations regarded in fixing the measure of damages. Where there has 'been maliciousness or fraud or evil intent, the jury may g-o beyond the principle of compensation and punish defendant by heavier damages. In torts the intent of the wrong-doer is of great moment, and though it inay seein incongruous that the penalty should be paid to the plaintiff rather than to the state, yet in practice it is the most effective mode of punishment. The rule that the jury may take evil intent into consideration is now well settled both in England and in the United States. In eases of libel and slander the law will often not require the least proof of actual injury, a distinction being drawn between words actionable per se where damage is presumed, and other libels in which actual injury must be set out. The subject otmeasure of damages will be found treated in detail in works devoted to the special topic by Maine, Field, and Sedgwick, and its application te various lbranche.s of jurisprudence is set forth under many heads in Parsons On Contracts, Greenleaf On Eri dance, and Redfield's Raeroad Law.