
    Jeremiah Warder and John Warder v. Richard Arell.
    October Term. 1796.
    [1 Am. Dec. 488.]
    Conflict of Laws — Lex Loci Contractus. — The laws of the country where a contract is made, (the contract not being made with a view to performance elsewhere,) must govern it.
    Municipal Laws — Foreign.—The municipal laws of the respective States of the United States are: foreign in respect to the sister States.
    Conflict of Laws — Penal Laws — Discharge from Debt. —Tender and Refusal. — One country will not execute the penal laws of another. But if a person be discharged from a debt by a tender and refusal made in a foreign country, by force of the-laws of that country he may defend himself in our Courts by relying upon such tender and refusal, and the laws under which he was discharged.
    Pennsylvania Statute — Construction.—The Pennsylvania Act of Assembly of January 1777, making certain bills of credit a legal tender, contracts, continental, as well as State bills, in that part of it which makes a tender and refusal a forfeiture of the debt. So far as this Act relates to a tender and refusal of continental bills, producing a forfeiture of the debt, it was not virtually repealed by the third section of. the Act of May 1778; — this latter law related only to the emissions, subsequent to the 29th of January, 1777.
    Statutes — Construction.—where there are two affirmative Statutes, on the same subject, if they do not conflict with each other, but may be so construed as that they may consist together, the latter will not be construed as a virtual repeal of the former.
    This was an action of debt brought by the appellants against the appellee, in the.District Court of Dumfries, upon a bond, executed in the state of Pennsylvania by the appellee and Cyrus Copper.
    Pleas 1st payment. 2dly, “that on the 27th of March 1780, the said Cyrus Copper in the city and county of Philadelphia, in the commonwealth of Pennsylvania, on behalf of himself and of the defendant at the house of J. Warder (a deceased obligee) was ready, and then and there offered to-pay, and tendered to the said Jeremiah-Warder the sum of ^882: 2: 6, in bills of credit emitted and made current by the Congress of the United States of America, bearing date a part thereof in the year 1775, and the residue in the year 1776, and requested him to take tnereout as much money, as would satisfy what was then due-on the said writing obligatory on account of principal and interest,amounting to ,£8441 18: 10, Pennsylvania currency, but the said J. Warder then and there refused &c. and that the said sum was not demanded by the said J. Warder, or by the plaintiffs within the space of four days after '::'the same had been tendered and refused as aforesaid, and that the said sum of principal and interest became forfeited, one third part thereof to the said Copper and Arell, and the other two thirds to the commonwealth of Pennsjdvania, by reason whereof, and by virtue of a certain law of the said commonwealth made in the first year of the said commonwealth, and in the year 1777, entitled, “an act for making the continental bills of credit, and the bills of credit emitted by resolves of the late Assemblies legal tender, and for other purposes therein mentioned,” [which is set forth at large] “and that the said Cyrus Copper, on the 3d of April 1780, (the said law continuing still in full force) paid into the hands of the treasurer of the said county of Philadelphia, appointed to receive the state tax, two third parts of the said sum due for principal and interest on the 27th of March 1780, and took the said treasurer’s receipt therefor, and retained the other third part for the benefit of himself and the defendant: and that the said bond was sealed, signed and delivered in the city, county and commonwealth aforesaid, by virtue of which premises of the said law, the defendant saith he is exonerated and acquitted of and concerning the said writing obligatory &c.”
    The 3d plea is like the preceding, except that the law is not set forth at large, nor is the payment to the treasurer of the two thirds, stated.
    Issue upon the first plea. Replication to the second, “protesting, that the said Cyrus Copper was not on the 27th March 1780 at the city of Philadelphia in the county of Philadelphia, and commonwealth of Pennsylvania ready, and did not then and there offer to pay and tender to the said J. Warder, the sum of A882: 2:6, in bills of credit emitted by the Congress of the United States of America, and bearing date in the years 1775, and 1776, and also protesting, that the said Warder did not then and there refuse «fee. also protesting, that the said sum of principal and interest did not become forfeited &c. by virtue of the law set forth in the plea, and that the said law was not then in full force «fee. and that the said Copper did not on the 3d day of April 1780, pay into the hands of the treasurer «fee. for plea says, that after making the said recited law in the plea set forth, to wit, on the 20th March in the year 1777, the general Assembly of the said commonwealth, made a law entitled, “an act for emitting the sum of two hundred thousand pounds in bills of credit for the defence of this state, and providing a fund for sinking the same, by a tax on all estates real and personal, and *on all taxables within the same, which is to the court shewn &c. ’ ’ [here the law is recited at large] “and also the said General Assembly afterwards to wit on the 25th day of May, in the year 1778, made another law entitled “a supplement to the act entitled an act, for the calling in of the bills of credit issued by the legislative authority of Pennsylvania, under the sanction and authority of the crown of Great Britain, and for other purposes herein mentioned” which is to the court shewn” «fee. [here the law is recited at large] 1 ‘which two laws were in full force on the said 27th of March 1780, without that, that the said defendant is acquitted and discharged of and from the said writing obligatory by virtue of the said law passed in the first j^ear of said commonwealth and in the year 1777 entitled «fee.”
    The replication to the third plea, is exactly like that to the second, except, that the protestation is confined to .the matter of the plea, and the title only of the two laws are set forth.
    Special demurrer to the 2d and 3d pleas.
    At the trial, the following agreement of counsel was made and entered upon the record to wit, “we agree that the facts) severally stated in the second and third; pleas of the defendant, and the replications of the plaintiffs, shall be mutually admitted without regard to any matter of form, and that the decision of the court shall be had upon the law arising thereupon, and the acts of Assembly therein recited, in lieu of the demurrer joined between the parties, which with the leave of the court is withdrawn.
    The defendant withdrew his second plea, and on argument of the demurrers, judgment was given for the defendant, from which the plaintiff prayed an appeal.
    Washington for the appellant. This case will depend in a great measure upon the just construction of the laws of Pennsylvania, where this debt was contracted, and the tender made.
    The first act upon this subject passed in January 1777. The preamble of the law, professes to make continental bills of credit a legal tender, and to render them equally current with state bills, in the discharge of debts, or in the purchase of property. The 2d section, relates exclusively to this subject. The 3d section confessedly relates to state bills only, when speaking of their currency. It might perhaps be seriously questioned, whether the clause of forfeiture upon a tender and refusal can be extended to continental bills; for since the 2d section fulfills completely what the preamble promises respecting the currency of the continental bills, and their capacity to become the subject *of a legal tender, and the third section respects state bills alone, until the clause of forfeiture is introduced, it may fairly be contended, that the words “if any persons after «fee. shall refuse to receive any of the said bills” «fee. refer to state bills, the immediate antecedent to those words. There would have been nothing unnatural in this discrimination, which should make continental bills only a tender at common law, and fortify the state bills with the additional aid of forfeitures upon those who should refuse to receive them. But if I should be wrong in this construction of the act, I shall still endeavor to show, that the refusal of Warder to accept the continental bills which were tendered by Copper, did not produce a forfeiture of the debt.
    If the third section extends to continental bills, it comprehends emissions subsequent, as well as those which were prior to the passage of the law. The intention of the law was to give them currency, and to create the fullest confidence in the ultimate goodness of the continental and state money. If to secure these important objects, it was thought necessary to denounce the heavy punishment of forfeiture upon those who refused to receive the paper money, the same reason applied with equal force to all the emissions. To discriminate, was to defeat the very object of the law. To leave subsequent emissions, crippled for the want of a similar provision, was but half doing the work. If this law does not apply to subsequent emissions as to tender and forfeiture, it does not make those emissions current, because the same money which is made current, is declared to be a legal tender; and if this be the case, the subsequent emissions of continental bills were for 16 months not current in that state. But this cannot be contended for, and therefore, the conclusion must be, that the law was meant to include subsequent, as well as prior emissions.
    After this, the legislature passed a law in March 17V7, directing an emission of ^200,000 and declaring it only a legal tender at common law. This was the first moment, when the legislature appear to have felt the injustice of the tender law. The legal scale of. depreciation had then arrived at two for one and we all remember, that the actual state of depreciation was greater than that at which the legislatures of the states, or Congress afterwards rated. But when it was afterwards discovered, that tender laws, armed with all the terrors of forfeiture could not sustain the value of the paper money, or stop the progress of its depreciation, the iniquity of the measure was no longer *to be countenanced by arguments of policy. And in May 1778 when depreciation had got to S for 1, an act passed, the third section of which declared, “that all bills of credit emitted and made current by resolves of the continental congress, should pass current in the payment of all debts, in as full and as effectual a manner, as the £200,000 which had been emitted in March; and that the refusal to receive them, should subject the parties so refusing, to the same fines, forfeitures and penalties, as such persons were subject to for refusing any of the said emissions of March.
    It would seem, that this law had entirely rooted out of the code any thing like a tender, other than suchas might be made at common law, and had virtually repealed so much of the act of January 1777, as punished the refusal with a forfeiture of the debt.
    But I am aware of the argument which is relied upon by the counsel for the appellee.
    It will be contended, that the act of May 1778, applies only to emissions of continental bills since January 1777, which it is supposed were not provided for by that act.
    I am at a loss for a rule to warrant such a construction. The words of the section which I have quoted are as general as they can be? they speak of “all the bills of credit emitted and made current by resolves of congress.” I cannot perceive a reason for restraining their operation to particular emissions, since if the legislature had intended such a discrimination, nothing could have been more easy than to have expressed it in plain language.
    We have in this very law, satisfactory proof, that when the legislature mean to restrain their expressions they know how to do it; for in speaking of counterfeits, they confine them to the emissions subsequent to January 1777. If the same emissions were intended by the 3d clause, why did they use a different language?
    I can never admit the propriety of a constructive exposition of a statute, where the words are free from ambiguity; it is seldom a safe guide, and can never be tolerated, but when there is no other mode of reaching the intention of the legislature. For a judge to say, that only some of the bills of credit emitted by congress shall be a tender as at common law, when the legislature have declared that all shall, seems to be taking an unwarrantable liberty with the law.
    *The strongest reasons present themselves to my mind, against such a construction. For why should the legislature discriminate between bills emitted on the 28th, and those emitted on the 30th of January? In May, the depreciation of both were equal; it was not more wicked to compel the creditor to receive the one, than the other. Policy no more required this extraordinary interference in favor of the prior, than of the subsequent emissions. But it would be still more wonderful, to discriminate between continental, and state bills; to afford what was considered as a protection to the former, whilst it was withdrawn from the latter. This would be to presume a very unnatural preference in the legislature to continental, over their own money. In short, if the distinction contended for is to be supported, it will be incumbent upon the appellees counsel to adduce strong and irresistible reasons for it.
    Randolph on the same side. I beg leave to observe in addition to what has been said, that I shall question the power of a Virginia court to enforce the penal laws of Pennsylvania, or of any other state. I admit, that in civil cases, the courts of one country will execute the judgments, or legislative acts of another; but the law in question is highly penal; and is besides, so far local, that it only prevents the right of recovery in the courts of that state, but does not abolish the debt. The principle which is stated in the case of James v. Allen, Dallas’s Rep. 188, applies with double force to the present; which depends upon the penal laws of a foreign country.
    I shall also insist, that if the 3d section of the act of January 1777, comprehends continental bills, that the requisites of the act as to making the tender, were not complied with by Copper. The debt in question was due to three persons, not associated together as partners in trade, but as joint tenants. The words of the law are, “if any person or persons shall refuse,” from which I understand, that to produce a forfeiture, the tender should have been made to all three, since if any one had received the money, it would have avoided the forfeiture; and because one refused, are tne whole to lose the rights which belonged to them?
    In some cases, the act of one, is (by a fiction) presumed to be the act of others, though not concerned directly or indirectly in it; but this never happens, where such a fiction is necessary for the enforcing of a penalty.
    But at all events, the part of J. Warder only (to whom the tender was made) was forfeited, for it is laid down in Co. Litt. *186, that a forfeiture by one jointenant extends only to his own interest.
    Bee for the appellee. This debt was contracted in Pennsylvania, and therefore, if it hath been discharged by the laws of that state, it can never be recovered in this. Brow. Ch. Rep. 376. The case of James and Allen does not oppose this doctrine. It is in no respect analogous; the insolvent law of New-Jersey did not extinguish, or discharge the demand of the plaintiff; the debt still remained, and followed the person of the defendant, altho’ that person had been discharged from imprisonment. It was therefore no bar to an action for a claim yet existing in another state. In this case, if I should be correct in the construction of the Pennsylvania laws, the debt itself was absolutely discharged. It is also to be remarked, that in the case of James and Allen, the jurisdiction of Pennsylvania had attached upon Allen before his discharge in New-Jersey. Besides, by the agreement made in this cause, the judgment of the court is to be founded upon the laws of that state. The words of the act “that the creditor should be forever barred from suing in any court of that stale,” were tautologous; for if the debt was discharged and forfeited by the tender and refusal, no action could have been maintained.
    I come now to the construction of those laws which must decide this question. The ground work of the argument for the appellants is, that no discrimination between the prior and subsequent emissions of congress, or between continental and state bills was intended. This is mere conjecture unwarranted as I conceive, by any thing growing out of the laws themselves. To discriminate between the different kinds of paper money was usual in all the states. That the legislatures had such a power is not questioned, and if they exercised it, it is immaterial what were the motives which led to it. The*"e were two modes of raising money in the United States, viz. by emissions, and by loans. It was reasonable to expect, that when redemption should take place, it would be regulated by the value of the money when it was emitted. This has actually been practised by congress as to loan office certificates; and if this rule was a just one in the repayment of money borrowed from individuals, it was equally so as to money paid by the United States to individuals, for articles furnished or services performed to the public. I premise this, for the purpose of shewing, that in the contemplation of men, the different periods at which emissions were made, was important; and it furnishes *a strong reason for the discrimination, which 1 contend upon the just construction of the act of January 1777, was intended between the emissions of continental bills prior to that time, and such as might afterwards be made.
    The legislature in this very law discriminate between the different sorts of their own paper money; for the 3d section does not include all the state money which was then current. At this time the different states entertained considerable jealousies with respect to Congress, and it was hardly to be expected, that they would be so forward in passing laws to support their money, as to furnish it with these extraordinary aids before it was created.
    It is contended, that the third section of this law, does not comprehend continental bills. The court will consider the whole law together, without regarding the mode in which the entire subject is subdivided into sections. The preamble declares the great necessity there was for making continental and state bills a tender in all payments, and that they should be alike taken in discharge of debts. In pointing out the means of producing this likeness, the subject is arranged into different sections, but surely this cannot change, or affect the spirit and intention of the law. “Said bills” in the third section, must refer to the bills which had before been mentioned, and declared a legal tender; and those were continental as well as state.
    The act of March 1777, does not in any part of it relate to that of January 1777; the sixth section refers to the ,£200,000, and to no other state money, and as it is admitted, that this clause speaks only of a tender at common law, the legislature again discriminate between the different kinds of their own money.
    Thus the laws stood at the time the act of May 1778 was passed; at this period, there were emissions of continental bills in circulation, which had been made since January 1777, and which of course, having not been noticed in that law, required the aid of the legislature to make them a tender; for this purpose only could the 3d section of that law have been intended.
    It is contended, that this law virtually repeals the 3d section of the act of January 1777. Upon what rule of law is this argument founded? I have always supposed, that if there be two affirmative statutes, between which there is no collision, that the one does not repeal the other. A constructive repeal is never to be admitted, if by a fair interpretation of both statutes they may consist together, and both be rendered effectual. Now, there is no inconsistency in confining the operation of *the last law to emissions subsequent to January 1777, and the first to emissions prior to that period. “All the bills of credit,” in the 3d section, will then mean, all such as have not been before provided for by the legislature. Or if these words be so broad that they must include the emissions prior to January, there may be another construction given to them, without forcing us upon the dangerous experiment (for such it must always be unless warranted by absolute necessity), of repealing laws by implication. It was doubtful whether continental bills of credit were a tender at common law, unless declared to be so by an express statute. A declaration of this sort was even thought necessary as to thé ¿£200,000, of state bills. Now, though the act of January 1777, had made a tender and refusal under certain restrictions a forfeiture of the debt, yet it might have been doubted, whether this had made continental bills of prior emissions, a tender at common law. The intention therefore of the 3d section of the act of May 1778, if it refers to alt the emissions of continental bills, might have been to make the whole of them a tender at common law.
    All the reasoning on the other side, to prove that the legislature could not have intended a discrimination between the different emissions of continental bills, is answered by the laws themselves; for it must be admitted, that a tender and refusal of the state money emitted by resolves of the late Assemblies, and on loan, prior to February 1777, produced a forfeiture of the debt, which was not the case with the emission of March 1777; and if so, what reason can be urged against a similar discrimination between continental bills?
    On the other hand, if the act of May 1778 repeals the 3d section of the act of January 1777, great injustice would follow. It would operate as an ex post facto law, as to those, who after January 1777, may have sold their estates on credit, under an expectation of being able with the money to discharge the debt they owed.
    The case of Johnson and Hocher, Dallas’s Rep. 406, decided in the Supreme Court of Pennsylvania, is decisive upon this point, and will be regarded by this court as an authority entitled to its respect; I will not say it is binding upon this court. But since we are discussing a question which grows out of Pennsylvania statutes, and it is admitted that if this very case had been decided in that court it would have bound this, a decision of a similar question in that court will be adopted here, unless it be obviously wrong. Much more will it be adhered to, when *the single quéstion is, the construction of laws attended with considerable ambiguity. Extraneous circumstances are often called in to aid the interpretation of doubtful statute, and the rights drawn from thence must have been more clear to a Pennsylvania court, than they can be to the courts of any other state. Having said thus much for the decision, which ifs complete upon the .very point in discussion, I have only to'add, that .this book is considered as authority in the Pennsylvania courts, and as such will be respected in this court.
    It is contended, that this court will not execute the penal laws of other states; be it so. But there is a wide difference between an action instituted to enforce a penalty, and a defence which goes to avoid the payment of a debt, extinguished by the operation of existing iaws.
    It is said, that the tender ought to have been made to all the obligees. When the legislature speak of a tender properly made they use a technical term, which for its explanation must be referred to the common law; the consequences only are statutary. Now we all know, that at common law, a tender to one of three joint obligees is sufficient, and a refusal by one, suspends the-interest as to all.
    It is admitted by Mr. Randolph, that a. tender to one would be a discharge as to-the interest of that one; if so, all must.be-discharged, because that one could not join in the action if his interest were gone, audit is clear, that the other two could not maintain the action whilst the other was alive. In cases of joint debts of duties, the act of one is the act of all; payment to one; is payment to all, and so too is the refusal of one, the refusal of all.
    Randolph. — I.shall consider this question-under three heads.
    1. If the act of January 1777 be penal, as-lI shall endeavor to prove it is, it ought not' to be executed now, and here.
    2. Under the just construction of the act of January 1777, continental bills are not comprehended in the third section.
    3. If comprehended the forfeiture there contemplated, is done away by the subsequent laws.
    1. The principle, that the courts of one country will not execute the penal laws of another is not denied. But it is said that the attempt made by the defendant is not to-enforce a penalty, but to avoid the payment of a debt discharged by force of a statute. Substantially, it is the same thing. Suppose that instead of abolishing the debt, a penalty equal to the same ^amount had been denounced, in case of tender and refusal. What difference would there be between an attempt to enforce this penalty, and a defence, which claims the benefit of a forfeiture of the whole debt. In both cases there is a penalty ; in both the court is called upon to give it effect. Suppose the punishment denounced upon the refusing creditor had been attainder or outlawry; would this court have sustained such a plea in bar of Warders suit? It surely would not.
    This is a personal action, and in its nature fugitive; it is not fixed to the soil of Pennsylvania, but may be sued for any where. Suppose the creditors and debtors had been citizens of Virginia, and being in Pennsylvania, the tender and refusal had there taken place. It is clear that it could not have been pleaded as a bar to.this suit, although Mr. Dee’s argument would lead to a different conclusion. I admit, that Warder’s remedy was gone in a Pennsj'lvania court, but his right was not extinguished ; for if it were, why does this act give the debtor a remedy to recover his bond from the creditor? It could be for no other reason, than because the legislature supposed there remained a latent right which might be asserted in some other country. If I am correct in this, the case of James and Allen (so far as that, or any other decision of a Pennsylvania court can be considered as authority here) is in point.
    It is contended, that the clause of the law which ousts the right to sue in the courts of Pennsylvania was tautologous. If so, there is nothing else in the law which would give to a tender and refusal any other ■effect than a tender at common law. The agreement made at the trial of this cause refers not only to the Pennsylvania acts of Assembly, but leaves the case open to the operation of general law.
    The case of Johnson and Hocker is considered as conclusive. As authority, I deny it. It is the decision of a court, which tho’ supreme in name, is but subordinate in fact. The judgments of that court were subject to revision in a Superior Court, and this very case may have been reversed for any thing that we know to the contrary; for the decision was made in 1789, and there are no reports of cases in the High Court of Errors and Appeals, since the year 1788. Neither can I agree, that that court had more lights, or was from its situation more competent to decide upon the construction of a PennsjTvania statute, than this or any other court of equal ability would be.
    I come 2dly, to the construction of the act of January 1777. The 2d section of the law does no more than establish the currency *of the continental bills. It is contended, that the 3d section is connected with, and operates upon the 2d. That two distinct sections of a statute which is to be liberally construed, may be connected and melted together, I do not deny. But it is otherwise in laws which impose penalties and forfeitures. Suppose, that instead of the forfeiture spoken of in the 3d section, it had been fine and imprisonment; would not the court have been tied down to a strict construction, and would it have been proper to go out of one .section into another, for the purpose of hunting after penalties?
    The 3d section begins by declaring, “that state bills shall be considered as a legal tender, and shall be received in payment of debts according to the sum specified in said bills.” What bills? Why .surely state bills, because the value of continental bills had been fixed by the 2d section. When the law goes on to speak of a refusal of said bills, it must necessarily apply to state bills, which were clearly meant before, and were alluded to in the same clause.
    For this discrimination, (which I think was intended,) a sufficient reason may be assigned. The state bills had been issued under the regal government, and fortified by taxes for their redemption ; this was not the case with the continental money. The superior value of the state money was after-wards acknowledged by the legislature, when they passed a law to prevent that money from being locked up, and preserved on account of its supposed valuq over other state money.
    But if the 3d section do extend to continental bills, I insist, that the requisites of the law have not been complied with. I object that the tender was made to one of the obligees only; it is answered, that at common law, a tender to one is a tender to all, and that so it must be under this statute.
    I admit the principle, if the bond be in the possession of the obligee to whom the tender is made, but I deny the conclusion ■even if this fact appeared. Where a tender and refusal is to produce a forfeiture of the debt, the act of one is not binding upon all. If it be, I am at a loss to understand the meaning of the words “person or persons” connected with what follows, “that he, she or they shall be barred from suing” &c. I admit that payment to one, would be payment to all, for that would be a satisfaction of the debt; payment could not be made to all. But where a forfeiture was to be the consequence of a refusal, the tender ought to have been made to all, because if one refused, another might not, and thereby the forfeiture *might have been saved. It is said, that if one be barred, the others cannot sue. This is not admitted. If one obligee be outlawed or attained, the others may sue.
    The next law which I shall consider is, that which passed on the 23d of March 1778, page 115 of the Pennsylvania laws, and which, tho’ not stated in the pleadings, may be referred to under the agreement. At this time, there were three sorts of state money current in Pennsylvania: 1st, the emissions by resolves of the late Assemblies, during the proprietary government; 2d, emissions on loans by the act of Assembly of the 26th of February 1773, which was also during the former government; and 3dly, the emission of the 20th of March 1777.
    The two first classes are called in by the law under consideration, and are to be exchanged for the emissions of the 3d class. Of course, there was no state money remaining in circulation except the ,£20(>,000, and none which could be tendered under the act of January 1777. Would it not be wonderful then, that the legislature should leave the continental bills under the operation of the act of January 1777, strengthened and supported by forfeitures, and permit their own to languish under the less efficient qualities of a tender at common law? The legislature supposing, that continental money was assisted only by the second section of the act of January 1777, do by the joint operation of this law and that of March 1777, place all the state money upon the same footing with the continental. And having done this, the act of January 1777, was no longer necessary, and is repealed by that part of the law now under consideration, which repeals “each and every of the acts of General Assembly by which the state money issued by the legislative authority of Pennsylvania under the authority of the crown of Great Britain, or any part thereof had been made current.”
    3d point. But if this be not the operation of those laws, and if the 3d section of the act of January 1777 does refer to the 2d, then I contend, that the act of May 1778, does completely repeal so much of it as makes a tender and refusal of any continental money a forfeiture of the debt. The words of the law are general; if a discrimination between prior and subsequent emissions had been intended, it could easily have been expressed. The 4th clause is a proof that the legislature knew how to limit their expressions to posterior emissions when they wished to do so. But if, as I have before contended, the act of March 1778 repealed that of January 1777, then we perceive a sufficient reason for the general expression used in the act of May 1778.
    
      
      Conflict of Laws — Lex Loci Contractus. — The general rule is that a defense or discharge, good by the law of the place where the contract is made or is to be performed, is to be held of equal validity in every other place where the question may come to be litigated. Thus, a tender and refusal, good by the lex loci contractus, either as a full discharge or as a present fulfillment of the contract, will be respected everywhere. Pritchard v. Norton, 1 Sup. Ct. Rep. 108, citing Story Confl. Laws, sec. 331; Warder v. Arell, 2 Wash. 282.
      The principal case is cited with approval in Nelson V. Fotterall, 7 Leigh 201; Banks v. Greenleaf, 6-Call 275, S. C. 2 Fed. Oas. 756. See Hefflebower v. Detrick, 27 W. Va. 16: Klinch v. Price, 4 W. Va. 4.
    
    
      
      Municipal Laws — Foreign.—In Draper v. Gorman, 8 Leigh 640, it is said: “Even the several states of the Union, though confederated, yet retain their individual sovereignties, and with respect to their municipal laws are to each other foreign. Per Pendleton, P., 2 wash. Rep. 298.” The principal case is cited and approved in Lonsdale v. Brown, 15. Fed. Cas. p. 858.
    
    
      
      Construction of Statutes — Repeal by Implication.— Repeals by implication are not favored, and ought not to be presumed, unless, from the repugnance of the provisions, the inference is necessary and unavoidable. Hogan V. Guigon, 29 Gratt. 705, and note-, Foxv. Com., 16 Gratt. 1, and note-, Davies v. Creighton, 33 Gratt. 696: Justice v. Com., 81 Va. 209f Forqueran v. Donnally, 7 W. Va. 115: State v. Gain, 8 W. Va. 732; The Chesapeake, etc., R. Co. v. Hoard, 16 W. Va. 270; Conley v. Supervisors, 2 W. Va. 416.
      In Stribbling v. Bank, 5 Rand. 143, the court said: Implied repeals, we know, are not favored in law. There must be absolute repugnancy to effect it. If the laws can be made to stand together: especially if there be different functions for the -laws, the one a general, the other a particular purpose; the latter will never be construed to repeal the former. For this doctrine, many cases might be cited. I shall only refer to Warder v. Arell, 2 Wash. 282.” The principal case is cited with approval in Stribbling v. Bank. 5 Rand. 151; Com. v. Richmond, etc., R. R. Co., 81 Va. 371.
      Same — Retrospective Effect. — See foot-notes to Price v. Harrison, 31 Gratt. 114; Elliott v. Lyell, 3 Call 268, and the principal case cited in State v. Mines, 38 W. Va. 134, 18 S. E. Rep. 473.
    
   *ROANE, J.

This contract having been made in Pennsylvania, without a view to a 'performance in any other state, the agreement made upon the trial of the cause referring to those laws, was an act of. supererogation, and entirely unnecessary, for it is clear, that the laws of that country where a contract is made must govern the fate of it.

The rule which I have just mentioned is laid down in the case of Robinson v. Bland 2 Burr. 1679, and is well explained and illustrated in Fonblanque’s excellent treatise on equity 2 vol. page 443.

It is true, that the laws of one country, have not in themselves an extra territorial force in any other; ’but by the general assent of nations, they are always regarded in contracts formed there.

A distinction however is attempted in this case, under the idea, that this is a penal law, and that the courts of one country will never execute the penal laws of another. The principle, is true, but inapplicable. The law of 1777, points out a mode of discharging debts different from that which is customary; it may produce an injury, but it is not therefore penal. The case cited from Brow. Ch. Rep. 376 is in principal like this. Payment in depreciated paper money was a penalty (under this interpretation of the word), in South Carolina, beyond what existed in England ; yet the lex loci prevailed. The only difference between that and this case is, that in that, the loss was partial, in this total, but the principle is precisely the same.

We are now to enquire, how the law of Pennsylvania stands upon this subject. The act of January 1777, in the preamble declares, “that the emissions of continental and state bills ought to be alike taken in discharge ofdebts”&c. To effect this, it was necessary to make them alike in all those qualities, which were any ways connected with the payment of debts. If received by the creditor, they were alike a discharge of so much of the debt. But if a tender and refusal of continental money, was not a discharge of the debt, it was not alike taken with state money, because if state mone3r had been tendered and refused, the debt would have been discharged.

The 3d section declares “that the state money” there described “shall in like manner be a legal tender and be received in payment of all debts as aforesaid” &c. Now the two descriptions of money would not be alike in their tenderable qualities, if the refusal of one discharged a debt, and the other did not. So that, if the words “said bills” in the next sentence, do not "*refer to continental bills, yet by assigning certain qualities to state bills, they at once attach to continental bills, which it is declared are to be alike taken in discharge of debts, and to be in like manner a legal tender.

But the 6th section of the law clears the question of all doubt as to the operation of the 3d clause, upon continental bills. It declares, “that where any person stands bound to pay sterling money, the creditor shall receive continental bills of credit, or state bills in payment thereof at a particular rate, if tendered as aforesaid, and on refusal thereof, shall be deemed and taken to be within the meaning of this act in cases of refusal of the bills of credit in tender as aforesaid.” And there can be no doubt, but that the clear scope of the law was to assimilate continental to state bills in their tenderable quality.

The next question is, was this act in force at the time the tender was made.

It is argued by the appellant’s counsel, that the generality of the expressions in the 3d section of the act of May 1778, operated a virtual repeal of the act of January 1777, so far as it related to a tender and refusal of continental bills, producing a forfeiture of the dent. It is contended, that the legislature began then to acknowledge the injustice of the act of January 1777. Yet in March 1778, when it was equals discernable, the legislature only repeal the law as to state bills.

Every rule of construction is opposed to the argument of the appellant’s counsel upon the operation of the 3d clause of the act of Maj' 1778. The court will never favor the repeal of a law by implication. 4 Bac. Ab. 638.

If there be two affirmative statutes upon the same subject, the one does not repeal the other, if both may consist together, and we ought to seek for such a construction as will reconcile them together.

The words all the bills of credit, must be confined to such as had not been before provided for consistently with the intention of the legislature; and these were, the emissions subsequent to the 29th of Januar3r 1777. By this interpretation of the words, all the laws are reconciled, and we avoid the necessity of an implied repeal, which if it had been intended, we ought reasonably to suppose it would have been expressed. The words, “all the bills of credit,” in the case of Johnson and Hocker, were not considered as producing the effect which has been contended for; and though I do not consider myself bound by that decision, yet the authority of it is entitled to-respect, and fortifies my construction of the laws.

*Upon the whole, I think the judgment should be affirmed.'

CARRINGTON, J.

The only question arises out of the construction of the laws «f Pennsylvania, which must assuredly govern this contract, as it was formed in that state, and discnarged there, if it be discharged at all. I have read with attention, and have considered all the laws of that state upon this subject, and I entirely concur with the judge who has preceded me, in the construction and operation of them. The ap-pellee having conformed to the law of January 1777, he must enjoy such benefits as that law gave him, unless he was deprived of them by subsequent laws. In March 1778, the legislature call those emissions which had been made a legal tender by the act of January 1777, and a refusal of which, was declared to be a forfeiture of the debt but; they do not expressly, or by implication repeal that law, except as to-such emissions. The legislature so far from discovering a disposition to relax at this early period, emitted more money as late as April 1781, and declared it a legal tender. The first law which operated a repeal of the act of January 1777, passed in 1781.

It is contended, that the act of May 1778 virtually repealed it. If the two laws may be reconciled, a constructive repeal is inadmissible, and that they may be, has been already demonstrated by the judge who has given his opinion. The case of Johnson and Hooker, is expressly in point, and accords entirely with my sentiments upon this subject.

The operation of the act of January 1777, upon this case, has been denied, under an idea, that it is penal, and consequently, not to be enforced by the courts of this state. But the appellee in this case is not in pursuit of a penalty, and does not ask the aid of the court to enforce it. He protects himself from the claim of the appellants, by pleading a discharge by the laws of another state having competent power over the subject. I confess that the opinion of judge Shippen, in the case of James and Allen, appears an extraordinary one to me ; I cannot discover, how the demand in that case could be considered as local. The judgment in New-Jersey, did in my mind completely extinguish the original claim; for suppose the debt had been due by bond, the bond would of course have been filed in the cause, and tho’ an action of debt might have been maintained upon the judgment, yet surely it could not have been upon the original debt, which was merged in the judgment.

As a payment to one is a pa3rment to all the joint obligees, so it is clear, that a tender to one is a tender to all; for if this *were not the case, it would be almost impossible to make a valid tender, where there were many obligees.

As to the hardship of this case, we have nothing to do with it. The state has got two thirds of the money, and it would be equally hard, if not more so upon the debtor, if he were now obliged to pay the whole again.

The PRESIDENT. Though very much indisposed, I will endeavor to state the grounds of the opinion which I am to give. The question is, whether the tender and refusal in the present case, produced a forfeiture of the debt according to the laws of Pennsylvania, or whether it operated onljr as a tender at common law, to stop the interest until again demanded.

But before I consider the case upon its merits, I will endeavor to clear it of some preliminary objections made by the counsel. The first was, that the act of January 1777, should not be regarded by us, because it is penal, so far as it relates to the tender and forfeiture.

It seems to be admitted on all hands, that in cases of contracts, the laws of a foreign country where the contract was made, must govern. The same principle applies, tho’ with no greater force, to the different states of America; for though they form a confederated government, yet the several states retain their individual sovereignties, and with respect to their municipal laws are to each other foreign.

But this is called a penal law. It may deserve very hard names, but it cannot he called penal. It is not for us to justify the morality of the law, but to understand clearly the legislative will and to execute it. If the law had subjected the creditor to a penalty for his refusing to receive the money, and the debtor were now prosecuting him to recover it, the principle contended for, which I admit to be correct, would then apply. But it is the creditor who sues, and the defendant pleads a discharge of the debt which is the foundation of the action, under the laws of that country, where the contract was made. It is no more penal, than the act of limitations, the bankrupt laws or the like. The decision in the case of Johnson and Hocker is upon the very point, and is complete. Being however a single case, and subject to revision, it has not the authority of a determination of the supreme judiciary of that state, and would not perhaps he considered even there as absolutely binding; but it may with propriety be referred to for illustration, and as such, is entitled to the respect of this court.

*Upon the merits. The first objection made by the appellant’s counsel is, that the 3d section of the act of January 1777, must be confined to state .bills only; that the words “said bills’’ refer to them as the next antecedent. However this may be according to the strict rules of grammatical construction, it is not the correct rule of interpreting a statute. To get' at the meaning of the legislature, we are not confined to the order of the sentences, but must take into view the whole law. The legislature have said enough to shew, that their intention was to place continental and state bills upon the same ground. The 2d section makes the former current, and receivable in payments and discharge of debts. The 3d declares, that states bills shall in like manner be a legal tender, and be received in payment. Then follows the effect of a tender and refusal, and the words, 1 ‘any of the said bills” comprehend each class before mentioned, and cannot be confined to any one of them. It is to be remarked, that in the 13th and 14th sections of the same law, the former of which declares the penalties for refusing, and the latter for counterfeiting the money, the same expression (“any of the said bills”) is used. Although the subject is divided into sections, I have no doubt, but that the spirit, as well as the just exposition of the words of the law comprehends continental, as well as state bills, in the clause which respects the forfeiture. The reason for dividing the subject into sections is obvious ; the second describes at what rate continental dollars, should be estimated in shillings and pence, which was not necessary as to state bills.

We are next to enquire, if this law be repealed expressly, or by implication? The act of March 1777, directs an emission of ,£200,000, and declares it a legal tender. It Was of course, a tender only at common law. The 10th section of this law declares, “that all bills emitted before the 1st of July 1759, shall not pass in payment of any debt or demand, except for taxes &c.” but not a word is-said respecting continental bills, yet it was contended at the bar, that the words, all bills, operates a repeal of the act of January. The rule is, that where there are two affirmative statutes, if they do not conflict with each other, the latter does not repeal the former. Repeals by implication are never favored by courts. Whatever apparent inconsistencies may appear in the declarations of the legislative will, yet it is not decent to presume that they would change their mind upon the subject, without saying so in express terms. But if the two laws are absolutely in opposition to each other, *then since the latter will prevail, the former must of necessity be considered as being altered. If however there be different subjects for the two laws to operate upon, there is no inconsistency, and consequently no necessity for presuming a repeal. Now apply these principles to the present case. Continental and state bills, were the subject of the first law; that law may still subsist in all its force as to the former, without in the least conflicting with the act of March 1777, which is confined to states bills. The same observations apply to the act of March 1778; it applies to state bills altogether, and was intended to destroy the preference, which the regal money had obtained over that emitted by the state. In the same manner is the act of May 1778 to be interpreted, which speaks expressly of continental bills. There were emissions prior, and others subsequent to January 1777. The former were provided for by that act; the latter were net. This law then may with propriety, and with great reason be applied to the subsequent emissions, by which the necessity of an implied repeal of the first law is avoided.

But it is contended, that if the act of January 1777, was in force in March 1780, the tender was not made conformably with the requisites of that law: that it ought to have been made to all the obligees. As a payment to one is a payment to all, it as certainly follows, that a tender to one is a tender to all. So a release by one, binds the whole. There were four days of grace allowed, in which time the obligee, to whom the tender was made, might have consulted with the others.

Upon the whole, I concur with the rest of the court, that the debt in question was discharged by the tender and refusal, and therefore, 0

The judgment must be affirmed.  