1824.

Sebrec

V.

Dorr.

at Lexington, without defalcation, for value received." The variance of this note from that described in the present declaration, is very striking. It is payable to the defendants, or order, in twelve months after date, and at the Bank of Discount and Deposit of the United States, in Lexington. These are all material parts of the note, and they are all omitted in the declaration. The variance, then, in this view also, would be fatal. And it may be added, that in the suit in the General Court, the declaration also omits to state, that the note was payable to order, and at the Bank of the United States; so that, in fact, the note is materially different from the declaration, in both suits. In regard, too, to that part of the present declaration, which describes the note for 10,065 dollars and 88 cents, there is a total omission to state, that it was "negotiable and payable at the Office of Discount and Deposit of the Bank of the United States, without defalcation, for value received," as in the copy produced in the record it purports to be; and the same omission occurs in the declaration in the suit in the General Court. Nothing is better established, both upon principle and authority, than that if the place where a note is payable is omitted in the declaration, it is fatal; for the evidence produced does not support the declaration. There is a variance in the essence of the instrument, as declared on, and as proved. Upon these grounds, then, it is manifest, that the record produced in evidence did not support the plaintiff's action.

There is another objection, which is equally decisive of the case. It is, that there was no pro

duction of the original notes, nor any excuse offered to account for the non-production of them, at the trial. It is a general rule of the law of evidence, that secondary evidence of the contents of written instruments is not admissible, when the originals are within the control or custody of the party. Here no proof was offered, to show that the original notes were impounded, or that they were not within the possession of the party, or within the reach of the process of the Court. Without such proof, the principles of the common law repudiate the introduction of copies; and copies were all that the record, in the most favourable view for the plaintiff, presented to the Court. But it is said, that the statutes of Kentucky, already referred to, dispense with the proof of the execution of instruments of this nature by the maker, and also of assignments by the assignor, unless the party will, on oath, deny the signature and the assignment; and that the only object of producing the originals, is to establish these facts. - The argument, therefore, is, that these statuteable provisions amount to a dispensation with the general rules of evidence as to the production of the original notes. But to us it appears, that the statutes of Kentucky ought to have no such interpretation. The object of the Legislature manifestly was, to dispense with the formal proof of instruments, where the party would not deny on oath the fact of their execution. It was thought inconvenient to suffer parties to take advantage of unexpected objections, and multiply delays by general denials, which might often spring up by surprise

1824.

Sebree

V.

Dorr.

1824.

Sebree

V.

Dori

at the trial, and thus load the cause with heavy and unnecessary expenses. But it would be most dangerous to allow that, because the proof of the execution of an instrument was dispensed with, therefore, no proof of its existence, or of the right of the party to hold it by assignment, was to be required. The production of the originals might still be justly required, to ascertain its conformity with the declaration, to ascertain whether it remained in its genuine state, to verify the title by assignment in the plaintiff, to trace any payments which might have been made and endorsed, and to secure the party, from a recovery by a bona fide holder under a subsequent assignment. These arc important objects, and which no wise Legislature would lose sight of; and it is too much to expect any Court of justice to infer, upon so slight a foundation, the abolition of those salutary rules of evidence which constitute the great security of the property and rights of the citizens.

We are, therefore, of opinion, that the records, however admissible for the purpose of showing' due and reasonable diligence by suit, were not legal evidence of the assignment of the notes, sử as to dispense with the production of the originals.

It is unnecessary to go into the question as to the jurisdiction of the General Court over the suit against the Lexington Manufacturing Company, and what would be the legal effects growing out of the defect of such jurisdiction. These, as well as some other minor points, may be passed over,

since the cause may be disposed of without entering upon the discussion of them.

It is the opinion of the Court, that the Circuit Court erred in instructing the jury, that the records aforesaid entitled the plaintiff to a verdict; and the judgment must, therefore, be reversed, and a vestire facias de novo be awarded.

Judgment accordingly.

1824.

Sebree

V.

Dorr.

[LEX-LOCI.]

KERR, Appellant,

V.

The DEVISEES OF A. MOON, Respondents.

The disposition of real property, by deed or will, is subject to the laws of the country where it is situated.

Where the devisor was entitled to warrants for land in the Virginia Military District in the State of Ohio, under the laws and ordinances of Virginia, on account of his military services, and made a will in Kentucky, devising the lands, which was duly proved and registered according to the laws of that State: Held, that although the title to the land was merely equitable, and that not to any specific tract of land, it could not pass, unless by a will proved and registered according to the laws of Ohio.

Even admitting it to have been personal property, a person claiming under a will proved in one State, cannot intermeddle with, or sue for, the effects of a testator in another State, unless the will be proved in the latter State, or it is permitted by some law of that State. Letters testamentary give to an executor no authority to sue for the personal estate of his testator, out of the jurisdiction of the State by which they were granted.

Under the statute of Ohio, which permits wills made in other States

1824.

Kerr

V.

Moon.

Feb. 20th.

March 15th.

concerning property in that State, to be proved and recorded in the Court of the county where the property lies, it must appear that the requisitions of the statute have been pursued, in order to give the will the same validity and effect as if made within the State:

APPEAL from the Circuit Court of Ohio.

This cause was argued by Mr. Scott for the appellant, and by Mr. Brush for the respondents.

Mr. Justice WASHINGTON delivered the opinion of the Court.

The respondents filed their bill in the Circuit Court for the District of Ohio, in which it is stated, that Archelaus Moon was, in his lifetime, entitled to warrants for 4000 acres of land in the Virginia Military District, between the Scioto and Little Miama rivers, in the State of Ohio, under the ordinances and laws of Virginia, on account of his services as a captain in the Virginia line on continental establishment, during the war of the revolution. That, being so entitled, he, on the 8th of May, 1796, in the county of Fayette, in Kentucky, where he resided, duty made and published his last will and testament, which, after his decease, in the same year, was proved and admitted to record in the Court of that county; an authenticated copy whereof, with the probate annexed, is made an exhibit, and referred to as part of the bill. That by this will, the testator devised the aforesaid land to the complainants, his widow and children. The bill then sets forth, that on the 2d of January, 1809, four warrants, for 1000 acres