1 Marburg v. Marburg, 26 Md. 8; Watson v. Brewster, 1 Pa. St. 381; Hawes v. Woolcock, 26 Wis. 629; Allshouse v. Ramsay, 6 Whart. £31; Jelison v. Lee, 3 Woodb. & M. 368; Nickerson v. Soesman, 98 Mass. 364; Capron v. Adams, 28 Md. 529; Cushing v. Wells, 98 Mass. 550; Smith v. Shaw, 2 Wash. C. C. 167; Stringer v. Coombs, 62 Me. 160; Grant v. Healey, 3 Sumn. 523; Benners v. Clemens, 58 Pa. St. 24; Woodhull v. Wagner, 1 Baldw. 296; Wood v. Watson, 53 Me. 300; Delegal v. Naylor, 7 Bing. 460; Cash v. Kennion, 11 Ves. 314; Lee v. Wilcocks, 5 S. & R. 48; Scott v. Bevan, 2 B. & Ad. 78, and note; Ekins v. East India Co., 1 P. Wms. 395; Lanusse v. Barker, 3 Wheat. 101. [343] In Grant v. Healey, supra, the opinion places the law on this subject in a clear light, and answers with great force the contrary decisions in Massachusetts and New York which are cited in the discussion. "I take the general doctrine to be clear," said the learned judge, "that whenever a debt is made payable in one country, and is afterwards sued for in another country, the creditor is entitled to receive the full sum necessary to replace the money in the country where it ought to have been paid, with interest for the delay; for then and then only is he fully indemnified for the violation of the contract. In every such case the plaintiff is therefore entitled to have the debt due to him first ascertained at the par of exchange between the two countries, and then to have the rate of exchange between these countries added to or subtracted from the amount, as the case may require, in order to replace the money VOL I-27

in the country where it ought to be paid. It seems to me that this doctrine is founded on the true principles of reciprocal justice. The question, therefore, in all cases of this sort, where there is not a known and settled commercial usage to govern them, seems to me to be rather a question of fact than of law. In cases of accounts and of advances, the object is to ascertain where, according to the intention of the parties, the balance is to be repaid — in the country of the creditor or of the debtor. In Lanusse v. Baker, 3 Wheat. 101, 147, the supreme court of the United States seem to have thought that where money is advanced for a person in another state, the implied undertaking is to replace it in the country where it is advanced, unless that conclusion is repelled by the agreement of the parties or by other controlling circumstances. In relation to mere balances of account between a foreign factor and a home merchant, there may be more difficulty in ascertaining where the balance is reimbursable, whether where the creditor resides or where the debtor resides. Perhaps it will be found, in the absence of all controlling circumstances, the truest rule and the easiest in its application is that advances ought to be deemed reimbursable at the place where they are made, and sales of goods accounted for at the place where they are made or authorized to be made. . . . (Consequa v. Fanning, 3 Johns. Ch. 587, 610; S. C., 17 Johns. 511.) . . I am aware that a different rule, in respect to balances of account and debts due and payable in a foreign country, was laid down in Martin v.

Franklin, 4 Johns. 125, and Scofield v. Day, 20 Johns. 102, and that it has been followed by the supreme court of Massachusetts in Adams v. Cordis, 8 Pick. 260. It is with unaffected diffidence that I venture to express a doubt as to the correctness of the decisions of these learned courts upon this point. It appears to me that the reasoning in the 4 Johns. 125, which constitutes the basis of the other decisions, is far from being satisfactory. It states very properly that the court have nothing to do with inquiries into the disposition which the creditor may make of his debt after the money has reached his hands; and the court are not to award damages upon such uncertain calculations as to the future disposition of it. But that is not, it is respectfully submitted, the point in controversy. The question is whether, if a man has undertaken to pay a debt in one country, and the creditor is compelled to sue him for it in another [344] country, where the money is of less value, the loss is to be borne by the creditor, who is in no fault, or by the debtor, who by the breach of his contract has occasioned the loss. The loss of which we here speak is not a future contingent loss. It is positive, direct, immediate. The very rate of exchange shows that the very sum of money paid in one country is not an indemnity or equivalent for it when paid in another country, to which by the default of the debtor the creditor is bound to resort. Suppose a man undertakes to pay another $10,000 in China, and violates his contract, and then he is sued therefor in Boston, when the money if duly paid in China would be worth at the very moment.twenty per cent. 'more than it is in Boston; what compensation is it to the creditor to pay him the $10,000 at par in Boston? Indeed I do not perceive any just

foundation for the rule that interest is payable according to the law of the place where the contract is to be performed, except it be the very same on which a like claim may be made as to the principal, viz., that the debtor undertakes to pay there, and therefore is bound to put the creditor in the same situation as if he had punctually complied with his contract there. It is suggested that the case of bills of exchange stands upon a distinct ground, that of usage, and is an exception from the general doctrine. I think otherwise. The usage has done nothing more than ascertain what should be the rate of damages for a violation of the contract generally, a matter of convenience and daily occurrence in business, rather than to have a fluctuating standard dependent upon the daily rates of exchange; exactly for the same reason that the rule of deducting one-third new for old is applied to cases of repairs of ships, and the deduction of one-third from the gross freight is applied in cases of general average. It cuts off all minute calculations and inquiries into evidence. But in cases of bills of exchange drawn between countries where no such fixed rate of damages exists, the doctrine of damages applied to the contract is precisely that which is sought to be applied to the case of a common debt due and payable in another country; that is to say, to pay the creditor the exact sum which he ought to have received in that country. That is sufficiently clear from the case of Mellish v. Simeon, 2 H. Black. 378, and the whole theory of re-exchange." See Lodge v. Spooner, 8 Gray, 166; Hussey v. Farlow, 9 Allen, 263; Bush v. Baldrey, 11 id. 367; Weed v. Miller, 1 McLean, 423; Grutacup v. Woulluise, 2 id. 581.