#### James Y. Jones *v.*John Dunn,

From Wake.

A Sheriff is not bound to take notice that the Defendant in a *ca. sa.*is not entitled to the benefit of the act of 1822 ; and where, without actual notice, that the contract on which the action was brought, was made before the 1st of May, 1823, on executing a *ca. sa.*he took bond pursuant to that act, it was held not to be an escape.

Debt tor an escape, in which the following case agreed was made up by the Counsel.

The Plaintiff was a resident of Virginia, and there in September, 1823, obtained a judgment against one *Belo-ny,*for his debt, with interest from the 10th of April, 1821. Upon this judgment, suit was brought against *Belony*in the County Court of Wake, and at August Term 1825, judgment was obtained, and a *ca. sa.*issued, which came to the hands of a Deputy of the Defendant on the 31st of July, 1826 *; Belony*was arrested on ibis *ca. sa.*and thereupon gave bond, for bis appearance at the next term of the County Court, pursuant to the act of 1822, when the Defendant by bis Deputy, permitted him to go at large. At the. time of the arrest and discharge of *Belony,*neither the Sheriff nor his Deputy had *327actual notice'of the facts above stated, except so far as they were recited in the execution, which commanded the Sheriff “ to take the body &c. to satisfy and pay the sum of &c'. with interest from the 16th of August, 1825.’’ The Attorney of the Plaintiff, whose name was indorsed on the execution, resided in the City of Raieigh, at the time of the arrest, and was so known to reside both to the. Sheriff and his Deputy, neither of whom applied to him for instruction.

Upon this case, his Honor Judge Daniei, gave judgment for the Defendant, from which the Plaintiff appealed.

*W. H. Haywood,*for the Plaintiff, insisted,

1st. That the Sheriff ought to have held the Defendant in the execution, in custody, until he had actual notice from the Plaintiff, of the time when tiie debt was contracted.

2d. That the execution itself recited facts, which amounted to actual notice to the Sheriff.

3d. That the Sheriff should have presutfted against the Defendant in the execution, and required of him proof of the time when the debt was contracted.

4th. That at all events, it was the duty of the Sheriff to enquire, of the Plaintiff’s Attorney, before he let the Defendant in the execution, go at large.

*Badger,*contra.

Hah, Judge.

The proceeding upon which this action is founded, cannot be charged to the bad intention of any one, and if a loss has happened, it must be borne by that, party who has been the most negligent.

When the execution came to the hands of the Sheriff, he proceeded under the provisions of (lie act of 1822, made for the benefit of insolvent debtors, which, directs Ahe Sheriff upon executing a *ca. sa.*to take bond and security for the appearance of the Defendant, at the Court *328f£.om wi|¡{.|, f¡ie Wi.¡|; issues, instead of committing him ^ a proviso contained in the act, it§ operation is restricted to executions on judgments, which are obtained on contracts made since the 1st of May, 1823.— The Sheriff was ignorant whether the contract on which the judgment in this case was obtained, came within the proviso or not. Until the receipt of the execution, he was a .stranger to the suit, and there is no reason to believe that he was in any way conusant of the judgment. The law ddcs not require that he should be, but this is not the case with the Plaintiff. He was a party to the contract, the judgment and the execution ; the latter issued for his benefit. It was therefore completely in his power, to notify the Sheriff of the course he was to pursue. As he has omitted to do this, the Sheriff ought not to bo subjected to the payment of his claim, against the 'Defendant in the execution. In many cases the entry of the judgment, does not show when the contract on which tiie action is founded, was made ; and in sue!) a case, the most vigilant Sheriff could get no information from its examination. On the other hand, if the Plaintiff wishes to derive a benefit from the proviso in the statute, the fact that Ins case is within if, can easily be entered on the record, and made known to the Sheriff. When Sheriffs depart from their duty wantonly, and from improper motives, as they have much in their power, they should be rigorously dealt with 5 but when they act honestly, and with a view to the faithful discharge of their duties, they should be protected, so far as the rules of law will permit. I cannot bring myself to think that the Defendant should be subjected to the Plaintiff’s demand in this case.

Tayxor, Chief-Justice.

That the laws of the State where a contract was made, shall he resorted to for its exposition, but (he laws of the country where a remedy is sought, shall be applied to it when it is enforced, seems *329to be a principle well established in England, and lias been frequently recognized in the Courts of the United States. Tlie form of action, the process, .and the time within which it may be commenced, most necessarily be gathered from the law of the State, where the suit is brought. Thus where a bond is given in another State, where it is assignable, and a suit is brought, in England, it must be' in the name of the obligee, because there it is not assignable by law, *(Folliot*v. *Ogden, 1 H. Bl.*135). So where a contract was made abroad, and'sued on in England,' the statute of limitations of that country was allowed to be pleaded, (2 *Ves.*540) $ and this rule has been adopted and followed in various'State Courts, (2 *Mass. 90*—Nash v. *Tupper, 1 Cain's Rep. 402*—Ruggles v. *Keeler, 3 Johns.*263). So that if.there were before us, evidence, that when this contract was entered into, the laws of Virginia gave the creditor a right to imprison bis debtor on a *ea. su.*and that he made his engagement with him on the faith and expectation of a power to take Ills body, 1 should still think, that when lie sues in our forum, l-ho only enquiry is, does the law of this State ghe him (he same right. There is a case in one of the British reporters in conflict with this principle, but the decision was not unanimous, and the authority of it lias since been questioned. The case was, where a Defendant entered into an instrument in France, by which his property only, and not his person, was liable according to the law of Franco $ the Court discharged him on a common appearance, *(Melan*v. *Duke of Fitz-James,*1 *Bos.*& *Pul.*138); but see *2 East.*455—2 *Johns.*158. if that decision is correct, it would follow from it, that if the Defendant had been amenable in his body by the law of France, though not so by the law of England, be must have been held to special bail, or have gone to prison.

This brings me to the act of 1822, for the relief of debtors, upon the true construction of which this case depends ; and considering that the question now first ari*330ses, I think we ought so to construe it, as n.ot to make Sheriffs liable for acts of inadvertence, which they could not readily guard against, and where there was no record or process in their possession, to apprize them that the Defendant ivas not entitled to the benefit of the act. The act extends the' benefit to every debtor taken upon a *ca. sa.*for any debt contracted after the 1st of May, 1823. The only information the Sheriff could derive from the writ of execution in this case was, that it issued June *IT,*1826, about three years after the time when contracts entered into, were privileged by the act; that the recovery wras of a debt, but whether founded on a judgment or not, the execution does not disclose. It does then appear to me reasonable, that if presumption was to be made either way, it should be in'favor of the Defendant, since the Sheriff could not be ignorant that from the despatch with which business was done in that Court, there fiad been ample time to contract a debt since May 1823, and to obtain judgment and execution for the nonpayment. The execution too, shows that it was executed by the Deputy, who may have iived in the country, and in the neighborhood of the Defendant. The consequence of keeping him in custody, until the Deputy came to town to ascertain when the debt was contracted, would, in a case where the debt was contracted since May, 1823, and the bond was tendered, have made the Sheriff liable to an action of false imprisonment. That consequence to be sure, would not have resulted in this case, but the rule if established, must be general in its application. I therefore think it would he a severe rule to impose upon the Sheriff the duty of ascertaining *the*time when a debt was contracted, considering how easy it is for the Plaintiff to have it indorsed on the execution, or to give notice to the Sheriff; and the case reminds me of the excellent remark of *Lord*Cake, “ and foras-much as escapes are so penal to Sheriffs, the Judges of *331the law have always made such favorable construction, as the law will suffer in favor'of Sheriffs ; and to the intent that every one bear his own burthen, the Judges shall never adjudge one to make an escape by a strict construction.” *(Boyton’s case,*3 Rep.44). I think the judgment should be affirmed.

Per Curiam. — Judgment affirmed.