Baits V. with the said agent, and to pay the balance which 1824. should be found to be due. To this last plea there was a demurrer, and, judgment being rendered thereon, by the Court below, for the defendants, the cause was brought by writ of error to this Court. Peters, The cause was argued by Mr. Wheaton, for the Feb. 20th plaintiff in error, no counsel appearing for the defendants in error. He argued that the agrecment thus pleaded in bar, as an extinguishment, was not a suflicient bar to the action, but was merely a collateral undertaking, which did not extinguish the original demand." Mr. Chief Justice MARSHALL delivered the opinion of the Court, that the third plea was bad. The agreement stated in that plea, although under seal, did not operate as an extinguishinent of the simple contract debt. The agreement was but a collateral undertaking, to come to a settlement within a limited period, which had elapsed before the commencement of the suit, and to pay the balance found due upon such settlement. There was no averment in the plea that any such settlement had been had, under that agreement, and, consequently, the covenant to pay the balance did. not appear to have attached upon the demand. a The Bank of Columbia v. Patterson, 7 Cranch, 299. 303 Day v. Leal, 14 Johns. Rep. 401. 1824. Sebree V. Dorr. Feb. 27th. March 6th. [LOCAL LAW.] SEBREE and others, Plaintiffs in Error, V. DORR, Defendant in Error. In a declaration upon a promissory note, the omission of the place where it is payable is fatal. Secondary evidence of the contents of written instruments is not admissible, when the originals are within the control or custody of the party. This rule of evidence is not dispensed with by the local statutes of Kentucky, which provide that no person shall be permitted to deny his signature, as maker or assignor of a note, in a suit against him, unless he will make an affidavit denying the execution or assignment. These statutes do not dispense with proof of the existence of the instrument, or of the right of the party to hold it by assigninent. a This cause was argued by Mr. Bibb, for the plaintiffs in error, and by Mr. Wickliffe, for the defendant in error. Mr. Justice STORY, delivered the opinion of the Court. This is a writ of error to the Circuit Court of Kentucky. The action was brought by Dorr, as a He cited, Hardin. Rep. 223. 3 Marsh. Ken. Rep. 163. 1 Marsh. 228. 2 Marsh. 256. 522. 610. 614. 1 Cranch, 290. Print. Dec. 152. 1 Bibb, 239. 542. 596. 2 Bibb, 34. 3 Bibb, 286. 527. 290. 424. 556. 7 Johns. Rep. 174. 3 Caines, 112. 2 Mass. Rep. 433. 5 Cranch, 6. 227. 4 Bibb, 1 Saund. 32. b Who cited, 1 Marsh. Ken. Rep. 535. 541. 2 Marsh. 256. 5 Cranch, 135. 2 Bibb, 35. 1 Phillips on Erid. 286. Sebree V. Dorr. assiguce, against Sebree and Johnson, as assignors, 1824. upon two notes, under seal, made to them by the Lexington Manufacturing Company. The declaration, instead of distinct counts upon each note, combines, in an inartificial manner, both notes in a single count. It states, that "the Lexington Manufacturing Company, by their corporate seal, and signed by John T. Mason, jun., their president, did, on the 12th day of March, 1818, at, &c., execute and cause to be made, their note or writing obligatory, by which they did oblige themselves to pay to John T. Mason and James Johnson, twelve months after the date of the said writing, 10,065 dollars and 88 cents; and on the same day, and at the same place, did execute their other writing obligatory, in like manner, by which they bound and obliged themselves to pay to the said James Johnson and John T. Mason the further sum of 311 dollars and 31 cents;" omitting to state when the last note was payable. It then proceeds to allege the endorsements of the notes to the plaintiff, the presentment of the same to the Lexington Manufacturing Company for payment, the refusal, and protest for non-payment, and the commencement and prosecution of suits to final judgment and execution, against the Company, for the amount of the notes, in the General Court of Kertucky; the return upon the execution, that no property could be found, and due notice to the defendants. It farther avers, that the General Court had jurisdiction of the suits, and that, in consideration of the premises, the defendants became indebted and promised to pay the amount to the Sebree V. Dorr. 1824. plaintiff. There were also counts for goods sold, and for money had and received. The cause came on for trial upon the general issue; and the only evidence produced by the plaintiff to support his action, was the records of the foregoing suits, which also contained copies of the original notes, and of the protests by the Notary. The defendants then prayed the Court to instruct the jury, 1. that the plaintiff had not made out a good cause of action; 2. that the records and proceedings aforesaid were not evidence against the defendants, because it did not appear that the General Court had cognizance of the subject matter; 3. That the records were not sufficient evidence of diligence on the part of the plaintiff, nor of the insolvency of the makers, nor of the assignment by the defendants. The Court overruled the motion, and instructed the jury, that the records entitled the plaintiff to a verdict against the defendants; and to these proceedings on the part of the Court, the defendants filed their bill of exceptions, and have thus brought the same points for consideration before this Court. By the local law of Kentucky, instruments of this nature are assignable; and if due and reasonable diligence is used by the assignee, to procure payment from the maker, by the speedy commencement and prosecution of a suit against him, and satisfaction cannot be obtained upon the judgment and execution in such suit, the assignor is responsible for the amount. But without such suit, no action lies against the assignor. It is also provided by the statutes of Kentucky, and the sub stance of these statutes has been incorporated into the rules of the Circuit Court, that no person shall be permitted to deny his signature, as maker or as assignor, in a suit against him, founded on instruments of this nature, unless he will make an affidavit denying the execution or assignment. These explanations are necessary, to enable us more accurately to understand the nature and bearing of the objections relied on at the bar, to reverse the present judgment. The first objection that occurs, upon the examination of this cause, is, that the note for 311 dollars and 31 cents, is not stated in the declaration to be payable at any particular time; and if this be not a substantial infirmity in the count, the conclusion of law is, that the note was due presently, or on demand. Now, the record of the suit, which is offered to show due diligence in endeavouring to recover this note from the maker, is not founded on a note payable on demand, but on a note payable twelve months after the date; so that there is a material variance between the note declared on in this suit, and the note which was declared on in the record offered in evidence. If we admit the copy of the note in the same record to be evidence, a farther difficulty is presented; for on its face, the note purports that, "twelve months after date, the President, Directors and Company of the Lexington Manufacturing Company promise to pay to James Johnson and John T. Mason, jun., or their order, 311 dollars and 31 cents, negotiable and payable at the Office of Discount and Deposit of the Bank of the United States, 1824. Sebree V. Dorr. |