In Allen v. Kemble, 6 Moore, P. C. 314, the court say: "The drawer, by his contract, undertakes that the drawee shall accept, and shall afterwards pay the bill according to its tenor, at the place and domicile of the drawee, if it be accepted generally; at the place appointed for payment if it be drawn and accepted payable at a different place from the place of domicile of the drawee. If this contract of the drawer be broken by the drawee, either by non-acceptance or non-payment, the drawer is liable for payment of the bill, not where the bill was to be paid by the drawee, but where he, the drawer, made his contract, with the interest, damages, and costs, as the law of the country where he contracted may allow. In every case of a bill drawn in one country upon a drawee in another, the intention and agreement are that the bill shall be paid in tho country upon which it is drawn. But it is admitted that if the payment be not so made, the drawer is liable according to the laws of the country where the bill was drawn, and not upon the country upon which the bill was drawn." See, also, Trimbey v. Vignier. 1 Bing. N. C. 151; Powers v. Lynch, 3 Mass. 77; Hicks v. Brown, 12 Johns. 142; Slacum v. Pomery, 6 Cranch, 221; Rothschild v. Currie, 1 Q. B. 43.
State in which he indorsed it, and the rate of interest of the State where it was payable would not give the rule of damages.1 And, although this is an apparent departure from the rule as to usury, it is said by Mr. Justice Story to be actually in conformity with it, on the ground that "the drawer and indorsers do not contract to pay the money in the foreign place in which the bill is drawn, but only to guarantee its acceptance and payment in that place by the drawee; and in default of such payment, they agree, upon due notice, to reimburse the holder in principal and damages at the place where they respectively entered into the contract." 2 After bills are accepted, they are to be governed as to the acceptor by the law of the place where they are payable.3
§ 1488. Where a debt is made payable in one country and is afterwards sued in another country, there is some conflict of opinion whether the debt is to be estimated according to the par of exchange or according to the actual rate of exchange, so as to place the full sum in the hands of the plaintiff in the country where the debt is payable. Some of the State courts hold that the debt should be reckoned by the par of exchange;4 but in the United States courts it has been held that the actual rate of exchange is the true rule for estimating the sum to be recovered.5
1 Powers v. Lynch, 3 Mass. 77; Williams v. Wade, 1 Met. 82; Lewis v. Owen, 4 B. & Ald. 654, and cases cited above.
2 Story, Conflict of Laws, § 315, citing Potter v. Brown, 5 East, 124, 130; Dundas v. Bowler, 3 McLean, 400; Hicks v. Brown, 12 Johns. 142; Powers v. Lynch, 3 Mass. 77; Prentiss v. Savage, 13 lb. 20.
3 Cooper v. Earl of Waldegrave, 2 Beav. 282; Lewis v. Owen, 4B. & Ald. 654; Story, Conflict of Laws, § 317; Boyce v. Edwards, 4 Pet. 111; McCandlish v. Cruger, 2 Bay, 377; Bain v. Ackworth, 1 Mill, Const. (S. C.) 107.
4 In New York, in Martin v. Franklin, 4 Johns. 124, and Scofield v. Day, 20 Ib. 102. See, also, in Massachusetts, Adams v. Cordis, 8 Pick. 260. See, also, Cockerell v. Barber, 16 Ves. 461; Guiteman v. Davis, 3 Daly, 120; Gunther v. Colin, Ib. 125.
5 Smith v. Shaw, 2 Wash. C C. 167, 168. In Grant v. Healey, 3 Sum. 523, Mr. Justice Story says: "I take the general doctrine to be clear that whenever a debt is made payable in one country, and it 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 not run upon it until the party in whose possession it is, is put in default by a demand by the party to whom it is justly due; in which case, if the money be retained after demand, interest begins to run.1
§ 1489. We now come to the second class of cases upon which interest is allowed, not as a matter of strict right and 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 countries, and then to have the rate of exchange between those countries added to or subtracted from the amount as the case may require, in order to replace the money 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 advances, the object is to ascertain where, according to the intention of the parties, the balance is to be repaid, whether in the country of the creditor or that of the debtor. In Lanusse v. Barker (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 understanding 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. Governed by this rule the money being advanced in Boston, so far as it was not reimbursed out of the proceeds of the sale at Trieste, would seem to be proper to be repaid in Boston. 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 it is 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, that advances ought to be deemed reimbursable at the place where they are made, and sales of goods to be accounted at the place where they are made or they are authorized to be made. Thus, if a consignment is made in one country for sales in another country where the consignee resides, the true rule would seem to be to hold the consignee bound to pay the balance there if due from him, and if due to him on advances there made to receive the balance from the consignor there. The case of Consequa v. Fanning (3 Johns. Ch. 5S7, 610), which was reversed in 17 Johns. 511, proceeded upon this intelligible ground, both in the Court of Chancery and in the Court of Errors and Appeals, the difference between these learned tribunals not being so much in the rule as in its application to the circumstances of that particular case.