1 Norris's Appeal, 71 Penn. St. 106, 125, and cases cited. And where the trust funds cannot be discriminated, the cestui que trust may select the most profitable. Ib. 126.
2 DeWolf v. Johnson, 10 Wheat. 367; Consequa v. Willings, Pet. C. C. 225; 2 Kent, Comm. lect. 39, p. 460; Andrews v. Pond, 13 Pet. 65, 78.
3 Story on Conflict of Laws, § 291 et seq. and cases cited; 2 Kent, Comm. lect. 39, p. 460, 461, and notes; Fanning v. Consequa, 17 Johns. 511; DeWolf v. Johnson, 10 Wheat. 367; Scofield v. Day, 20 Johns. 102; Boyce v. Edwards, 4 Pet. 111; Quince v. Callender, 1 Desaus. 160; Cooper v. The Earl of Waldegrave, 2 Beav. 282; Fergusson v. Fyffe, 8 Clark & F. 121; Thompson v. Ketcham, 4 Johns. 285; Healy v. Gorman, 3 Green (N. J.), 328; Archer v. Dunn, 2 Watts & S. 328; Grant v. Healey, 3 Sumner, 523; Robinson v. Bland, 2 Burr. 1077.
In an action on a judgment rendered in another State, interest is to be allowed according to the rate in the State of the forum. Barringer v. King, 5 Gray, 9.
4 Scofield v. Day, 20 Johns. 102; Peck v. Mayo, 14 Vt. 33.
1 Depau v. Humphreys, 8 Mart. (N. S.) 1. In this case a note was given in New Orleans payable in New York, bearing an interest of ten per cent, which was a legal rate at New Orleans, the New York interest being only seven per cent; and it was held that it was not usurious. This case is critically considered by Mr. Justice Story in his Conflict of Laws, § 298 et seq.; and after a full examination of all the foreign authorities he says: "It is not, perhaps, too much to affirm that the decision already alluded to of the Supreme Court of Louisiana is not supported by the reasoning or the principles of foreign jurists. It is certainly always at variance with the doctrine maintained by Lord Mansfield and the judges of the King's Bench, in a highly interesting case (although not positively necessary to the judgment then pronounced), that the law of the place of payment or performance constitutes the true test by which to ascertain the validity or invalidity of contracts. And finally, in a very recent case, the Supreme Court of the United States have adopted the doctrine that where a contract is made in one place, to be executed in another, it is to be governed, as to usury, by the law of the place of performance, and not by the law of the place where it is made. So that if the transaction is bonā fide, and not with the intent to evade the law against usury, and the law of the place of performance allows a higher rate of interest than that permitted at the place of the contract, the parties may lawfully stipulate for the higher interest. But then the transaction must be bonā fide, and not intended as a mere cover of usury. Bouhier, indeed, thinks that every contract of this sort would almost, from its very terms and nature, import a design to evade the laws, and to cover usury. But he manifestly presses the presumption far beyond its legitimate application; for the circumstances of the case may often establish that the contract is perfectly innocent and praiseworthy.
"It has been said that if the principle be that a contract valid in the place where the contract is celebrated is void if it is contrary to the law of the place of payment, it must establish the converse proposition, that a contract void by the law of the place where it is made is valid if good by the law of the place of payment. This would seem to be reasonable; and the doctrine is supported by the modern cases, notwithstanding the old cases have been supposed to lead to a contrary conclusion. In one case a bond was executed in Ireland for a debt contracted in England; and because it constituted a security on lands in Ireland, Lord Chancellor Hardwicke held that it was valid, although it bore the Irish interest of seven per cent. But he thought it would have been otherwise if it had been a simple contract debt, or if the bond had been executed in England. Mr. Chancellor Kent has correctly laid down the modern higher than is legal at either place, it would be usurious unless it be a bond fide arrangement, and the interest above the legal rate be the difference of exchange, or be claimed as damages.1 doctrine; and he is fully borne out by the authorities. 'The law of the place,' says he, 'where the contract is made is to determine the rate of interest when the contract specifically gives interest; and this will be the case, though the loan be secured by a mortgage on lands in another State, unless there be circumstances to show that the parties had in view the law of the latter place in respect to interest. When that is the case, the rate of interest of the place of payment is to govern.'" But see Chapman v. Robertson, 6 Paige, 627, in which Chancellor Walworth supports the case of Depau v. Humphreys. See, also, 2 Kent, Comm. lect. 39, p. 460, note. In Peck v. Mayo, 14 Vt. 33, where a promissory note was made in Canada, and indorsed in Vermont, in both of which places the rate of interest is six per cent, and was payable in New York at a day certain, where the rate of interest is seven per cent, it was held that makers and indorsers were liable to pay the interest of New York. Red-field, J., in delivering the judgment of the court, said: "I consider the following rules in regard to interest on contracts, made in one country to be executed in another, to be well settled.
"1. If a contract be entered into in one place to be performed in another, and the rate of interest differ in the two countries, the parties may stipulate for the rate of interest of either country, and thus, by their own express contract, determine with reference to the law of which country that incident of the contract shall be decided.
"2. If the contract so entered into stipulate for interest generally, it shall be the rate of interest of the place of payment, unless it appear the parties intended to contract with reference to the law of the other place.
"3. If the contract be so entered into for money payable at a place on a day certain, and no interest be stipulated, and payment be delayed, interest, by way of damages, shall be allowed according to the law of the place of payment, where the money may be supposed to have been required by the creditor for use, and where he might be supposed to have borrowed money to supply the deficiency thus occurring, and to have paid the rate of interest of that country."