
    Smith against Pinolla.
    If a porlufo b^l in this tl°e a creditor reddrlf on^" contract deira 'a cobny of Portagal, and subject to its
    Johnson, in behalf of the defendant,
    moved that an exoneretur should be entered on the bail-piece, filed in cause' rea^ affidavits stating that the plaintiff was a resident of the island of Madeira, and that the transacti°ns which had given rise to the present suit, took place in that island; that both parties are subjects of Portugal; that by the laws of that kingdom which extend-e(j to the island of Madeira, and were in force there, the bodv of a debtor could not be arrested or imprisoned by tlis creditor, • either before or after judgment; that the only remedy was against the property, and not against the person of the debtor ; that the defendant had two un-incumbered estates in the island of Madeira,' the annual income or produce of which, on an average, amounted to eight hundred dollars per annum, and which it was in the - , , ™ . power oí the plain tin to receive.
    He contended, that if by the laws of Portugal, the person of the defendant would not have been liable to arrest there, both parties being subjects of that kingdom, his person ought not to be made liable here. It was the , , . , ... , same as it there had been an express stipulation to that effect; for the court will take notice of the laws of the country where the contract is made, and the obligation created, when regularly brought before them, as in the present case, by affidavits of public agents and respectable persons ofthat country. In the case of Melon v. The JDulce de Fitzjames,
      
       it was so decided, and Chief Justice J . Eyre observed, that what would be a defence in France against a contract made -there, would be a defence in England: that if the laws of France authorised no proceedings against the person of the debtor, there could be none against his person in England, and the bail-bond was ordered to be cancelled. In the case of Talleyrand Bou-langer,
      
       the Lord Chancellor declared, that he had nodoubt that a court of common law would, upon such grounds, discharge a defendant on common bail. He considered it as contrary to all the principles which guide the courts of one country in deciding upon contracts made in another, to give greater effect to the contract than it would have by the laws of the country where it was made. In respect-to the arrest of the person, the laws of France appear to ho the same as those of Portugal, and they were proved in the ease of Melon v. The Duke of Fitzjames, by affidavit. Tho lex loci, is to govern in the expounding and enforcing of contracts. The. contraei between these parties having been made in a Portuguese colony, subject to the laws of Portugal, it ought to be considered as the understanding and agreement between them, that the property only of the debtor should be liable. It is unnecessary to mention the extreme inconvenience, and oppression which a foreigner, who comes to this country fora temporary purpose, may suffer from a creditor he .may have left behind, if the court refuse to relieve from arrest; when by the laws of his own country, his person could not be molested,
    
      -*aws>t,ie court will not discharge hiai0?his common ap~ order arfes-oneretur to be entered pn the bail piece, tj'oog'hit f shown (hat by the laws of body1 of’the0 debtor could ”d, either b&-íor,e or aft?r judgment, & that his pro-was^iaMef
    
      
      Boyd, contra.
    The principle laid down by this court in the cases of Lodge v. Phelps, Page v. Cable, and Nash v. Tapper,
      
       it is conclusive against this application. It was determined in those cases, that the lex loci applied to the nature and construction of contracts, not to the mode of enforcing them; and that where an action is brought in this state, the remedy is to be pursued according to the forms established by our laws. The case of Melon v. The Dulce of Bitzjam.es is not now considered as law- That was a motion to have the bail-bond cancel-led; in the present case special bail has been put in, and a commission has been actually taken out by the defendant to examine witnesses in Madeira. TVie defendant, may, therefore, be considered as having submitted to the laws of this state, in relation to arrest and bail. It does not appear whether the defendant came here with a view to a temporary, or a permanent residence; and the inconvenience he may be put to, is a necessary consequence of his voluntarily leaving his-own country without paying his debts, and cannot affect the general principle which is to govern this court in all cases.
    
      
       j b0s anc¡ ■**»*. 139.
    
    
      
      
        3 yesf,y 447-
    
    
      
      
        j^iarjtsi Iiep.‘zsn. Mo-
      
    
    
      
       1 Caines, 402.
      
    
    
      
      
        2East, 455.
    
   Per Curiam.

In the case of Nash v. Tupper, it was laid down as a general principle’that the lex loci applies only to the interpretation of contracts, and that the remedy on them must bo prosecuted according to the laws of the country in which the action is brought. The decision of the court of C. B. in the case of Melan v. The Duke de Fitzjames was questioned by Lord Ellenborough, in the case of Imlay v. Ellefsen, who considered the opinion of Mr. Justice Heath as the law, and the contrary doctrine was abandoned by the counsel. We adopt the principle contended for by Heath. If a foreign creditor pursues his debtor here, he is entitled to the more cacious remedy provided by our laws, for the recovery of debts.

Rule refused. 
      
      
         2 East, 455.
      
     