(February 8, 1796,) being connected With one of the defendants, conceived it improper for him to decide this cause. He therefore requested Philip Barton Key, Esquire, (one of the solicitors of the said court,) to examine the papers in ■the cause, to consider the arguments of the counsel, which were filed in writing, and to give him thereon his opinion in writing.
Mr. Key afterwards delivered in writing his opinion as follows, to wit:
“In compliance with the request of the chancellor, I have examined the bill, answer and exhibits, filed in the case of Pearce & others, vs. Wallace & Muir, and the observations of counsel on each side, and I am of opinion, on the five points submitted as the grounds of an interlocutory order, to direct the auditor in stating the account,
1st. That Heath’s bond ought not to be credited as a payment, and that the same should be re-delivered to the complainants.
2dly. That tiie change of the sterling debt into currency at 170 exchange, is equitable and proper. I not only think so, because Voorhees, the acting partner, has signed a stated account without objecting to such extension, but because there is proof to shew that it is rather below the rate «/[exchange at the time the debt ought to have been paid. If therefore the com*55plainants sought indulgence, it ought not to be at the expense of the defendants. If the complainants had been at that time in possession of specie to discharge the debt, would it not have taken 1701 current money to have purchased bills to have discharged 10OÍ sterling in London? If so, and such is the -proof adduced, they ought not to complain. My ideas on this case are founded on a conviction that it originally was the clear intent of all parties, that Voorhees & Co. were to pay W. J. & M. in London, for the goods shipped to them. This appears to me evident from all the transactions between them, and the subsequent change was, with the consent and approbation of the parties, intended as an ease and accommodation to Voorhees & Co. In the course of my practice, I have always thus extended a sterling debt at the current rate of exchange, when I have taken a security for it. I know it to be the practice of W. J. & M. and I believe it to be the usage of trade. If it is not so, merchants in London, who ship goods to this country on credit, must be ruined," for if exchange is low, the debtor buys bills, and ships to a profit; if it is high, he pays money at sixty-six and two thirds to a factor or partner here, who must either lay out the money in bills to remit at a great loss, or keep the money till bills fall, and thus lose the interest and risk his credit. To prevent this the shipper is induced to make the debt payable in London, in which event he uever risks the exchange, but receives the sterling amount in London. I therefore think the change of the debt from sterling into current money, at 170l, reasonable and proper, it being with the consent, and for the ease and accommodation of Voorhees & Co.
3dly. That the auditor should charge an interest of six per cent, from the date of the change of the debt into current money, as then the complainants had the privilege of paying the debt in this country. Upon the ground of the original contract, only live per cent. interest could be charged, because the debt was contracted in England to be paid in London. The facts are simply these—W. & M. of Maryland, of the house *56of W. J. & M of London, undertook for a commission, that their London house should ship a certain amount of goods to Voorhees & Co. which they W. J. & M. must take up of the manufacturers in England on a certain credit, and if they fail in punctual payment, with an interest of Jive per cent. Voorhees & Co. were to have 12 months credit, and to pay five per cent, if not punctual; that is, they were to have the goods on the terms that W. J. & M. took them up, and to give a certain commission for buying and shipping them, which was the only profit W. J. & M. were to have for the risk they incurred, and delay of payment. A subsequent contract entered into with W. & M. of Maryland, permitted Voorhees & Co. to pay off the debt due W. J. & M. of London, to W. & M. of Maryland, in this country, and in virtue of this subsequent contract, upon principles of equity and justice, I think they ought to pay six per cent.from that time; because the contract or permission to pay in this country, with an interest of six per cent, was more beneficial to them, than to pay the debt in Lou-don with an interest but of five per cent. By the custom of trade, remittances to London only operate as payments, when the money is there actually received, and as three months must elapse between the purchase of bills, and their payment in London, the loss of interest on these three months is greater than paying the debt in this country with an interest of six per cent. The conduct of Voorhees & Co. buying bills of W. & M. in this country, to remit to W. J. & M. of London, in part payment of the goods, is unequivocal evidence of their ideas of the original contract; and as the subsequent change, the privilege of paying in this country, even with six per cent, was for their benefit, had they made use of it, of course they ought not to complain; and if they neglected this benefit, by not paying at all, they have still less reason to complain.; besides, .coming here for relief against a judgment at law, they ought to shew a clear equity, which they do not in this instance appear to have.
Martin, (Attorney General,) and Winchester, for the Appellants, and by * Cooke, Key, (a), and Shaaff, for the. Appellees,4thly. If any interest is charged on any sums of inoney after they were paid, since the change of the debt into current money, it is improper, and ought not to be allowed. If such a charge exists on any sums paid here, while the debt remained a sterling debt payable in London, I think they ought not tp be relieved against it if not exceeding three months.
5thly. The sterling draft on the 14th of May 1790? ought to be credited at the rate of exchange on that day, because it was subsequent to the contract enabling them to pay in this country, and of course ought to be extended, in as much current money as it would then bring if sold here. I do not discover any reason or principle to discriminate between the principal and securities in this case. I think they are equally liable, unless they could shew fraud, imposition, or improper conduct between Voorhces and the defendants, in the settlement or statement of the account. I do not conceive them concluded by the acts or acknowledgments of Voorhees; at the same time I cannot per-; ceive, in this transaction, any superior equity in their-favour.”
Hanson, Chancellor,(February 29th, 1797,) approving entirely of the opinion of Mr. Key, ordered the auditor to state and return an account, &c. on the principles of that opinion. Which having been done by the auditor, the chancellor confirmed the report, and dissolved the injunction which had been granted, stating the sum that should be levied on the execution? on the judgments at law. The complainants appealed ip this coprt, and the cause was argued by
The /Court or Apee ais, at this term, affirm,e4 the decree of the Court of Chancery.