"I am aware that a different rule in respect to balances of accounts 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 as a necessary incident to the original debt, but upon which it may be allowed by the jury by way of damages. Within 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 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 have 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 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 this 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 same sum of money paid in the 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 the 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; namely, 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 as 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. This is this class are included cases of tort, or breach of contract, whereby special damage has resulted to the party claiming it. In these cases, interest is recoverable from the time when the tort was committed, or when the contract was broken; that is, from the time when the party of whom it was claimed is in default. Thus, where a defendant has fraudulently acquired or wrongfully detained the plaintiff's money, he is chargeable with interest from the time of his so acquiring or detaining it.1 So, also, where executors or administrators are sufficiently clear from the case of Mellish v. Simeon (2 H. Black. 378), and the whole theory of re-exchange. My brother, the late Mr. Justice Washington, in the case of Smith v. Shaw (2 Wash. C. C. 167, 168, in 1808), which was a suit brought by an English merchant on an account for goods shipped to the defendant's testator, where the money was doubtless to be paid in England, and a question was made whether, it being a sterling debt, it should be turned into currency at the par of exchange or at the then rate of exchange, held that the debt was payable at the then rate of exchange. To which Mr. Ingersoll. at that time one of the ablest and most experienced lawyers at the Philadelphia bar, the counsel for the defendant, assented. It is said that the point was not started at the argument, and was settled by the court suddenly, without advancing any views in the support of it. I cannot but view the case in a very different light. The point was certainly made directly to the court, and attracted its full attention. The learned judge was not a judge accustomed to come to sudden conclusions, or to decide any point which he had not most scrupulously and deliberately considered. The point was probably not at all new to him, for it must frequently have come under his notice in the vast variety of cases of debts due on accounts by Virginia debtors to British creditors which were sued for during the period in which he possessed a most extensive practice at the Richmond bar. The circumstance that so distinguished a lawyer as Mr. Ingersoll assented to the decision is a further proof to me that it had been well understood in Pennsylvania to be the proper rule. If, indeed, I were disposed to indulge in any criticism, I might say that the cases in 4 Johns. 125, and 20 Johns. 101, 162, do not appear to have been much argued or considered, for no general reasoning is to be found in either of them upon principle, and no authorities were cited. The arguments and the opinion contain little more than a dry statement and decision of the point. The first and only case in which the question seems to have been considered upon a thorough argument is that in 8 Pick. 260. (Adams v. Cordis.) I regret that I am not able to follow its authority with a satisfied assent of mind." See, also, Scott v. Bevan, 2 B. & Ad. 78; Delegal v. Naylor, 7 Bing. 460.