Wilmington,

May Term, 1803.

#### Rutledge vs. Read.

~P'AYLGR, Judge.

-The deposition offered in evidence, -Was -®- taken not at the precise day mentioned in the notice, but On the next day upon an adjournment; and it is objected that a deposition cannot he taken at an adjourned day, for then the commissioners by adjourning for weeks or months, might compel -hr party noticed, to remain on expences, or abandon his cross examination ; and it is urged, that if the commissioner may adjourn once, he may oftener — and so adjourn whenever the party noticed should appear to join in the examination. The cases stated would not be allowed oí- Here however, the adjourn-*243mcnt is fo ibe next flay ; no lime intervening j and that cannot produce the mischiefs apprehended.

The deposition was read, and' it proved a note dated .*,6 Charleston, ?nd the endorsement thereof to the plaintiff.

The counsel fo? the defendant, objected that there ere but tw, ways, of declaring on'this note in the name of the assignee. The one stating it to be a §outh-Carolina note j and that by the laws of S.outh-Carolina, it was negotiable by assignment, and that it was assigned¡, the other not mentioning that it was a note drawn i’-i £ou.th-Carolina, in the latter case it would be assignable by the laws, of North-Carolina, and should upon the production appear to be anote not drawn out of this state. Hera the note proved, was drawn in Sou'.h-Carolina, and so appears to be on, the face of it. It should not be give:,? la evidence, because variant from the declaration. — If declared on as a note drawn South-Carolina., then the allegation,, that it is assignable by th® law of South-Carolina, is a material one, and. should, be proved. Here it is not proved, sad the plaintiff therefor® should sot be permitted to recover.

After this objection, the plaintiff gave evidence frhi? pimcipat to pay to Rutledge, tlje assignee, the amount of. debt.

Taylor, Judge.- — I am at present of opinion, that the objections are good 5 and that a note drawn in South-Carolitja,. cannot be considered here as endorsable, unless it be proved'to be the law of South-Carolina, that such notes are assignable. I know privately,, that by the laws of South-Carolina, such notes are, assignable j. bijt I cannot say judicially that they are so, unless it were proved.. It cannot be proved by parol, because thfe laws themselves are better evidence, and may be bad. As to the express promise that renders the defendant liable to the extent of the principal cum, I am willing however, that a new trial should be moved for, or the case removed, in order to have-further consideration of this point.

Verdict for the principal sum on the express promise^ or a new trial was moved for and granted upon the ground of surprise..