In conformity with the existing laws of that state. By an ordinance of Congress, for the government of the territory north-west of the river Ohio, passed on the 13th of July, 1787, it is declared, that, until the Governor and judges should adopt laws as prescribed by that ordinance, estates in the territory might be devised or bequeathed by wills in writing, signed and sealed by the testator (being of full age) and attested by three witnesses; provided such wills should be duly proved and recorded with570*] in one year after proper magistrates, courts, and registers should be appointed for that purpose. It is an unquestionable principle of general law, that the title to, and the disposition of real property, must be exclusively subject to the laws of the country where it is situated. This was decided in the case of The United States v. Crosby, 7 Cranch, 115. The application of this principle to the present case, is controverted by the counsel for the respondents, upon the following grounds: 1. That the interest of the testator in these lands ought to be considered and treated as personal estate, and, therefore, it might well pass by a will, proved and admitted to record in the state where the testator died. 2. That by an act of the legislature of Ohio, passed on the 25th of January, 1816, authenticated copies of wills, proved according to the laws of any state or territory of the United States, relating to any estate within that state, are allowed to be proved in the court of the county where such estate shall be; and when so proved and admitted to record, they are declared to be good and valid in law, as wills made in the state. 3. That as no objection was made in the Circuit Court to the admission of the authenticated copy of this will, it ought not to avail the appellant in this court. 1. It can by no means be admitted that this is to be considered in the light of personal property, notwithstanding the title of Moon rested merely upon a legislative reservation in 571] his favor by the state of Virginia, which was to be afterwards perfected by the grant of a warrant, and by a location, survey and patent. Although his title to any particular tract of land was, in the first instance, altogether uncertain, and, even after location, was purely equitable, still the subject-matter of the devise was land, the title to which could not be acquired or lost, except in the way prescribed by the laws of Ohio. But could it even be conceded that this was personal property, it would still be property within the state of Ohio; and we hold it to be perfectly clear, that 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 that other state, or unless he be permitted to do so by some law of that state. In the case of Doe v. M'Farland, 9 Cranch, 151, it was decided, that letters testamentary gave to the executors no authority to sue for the personal estate of the testator, out of the jurisdiction of the power by which the letters were granted. 2. The next reason assigned why the general principle above laid down does not apply to this case, is deemed by the court altogether insufficient; because, whatever benefit the devisees might have derived under the act of the 25th of January, 1816, had they pursued the requisitions it prescribes, as to which we give no opinion, it is a sufficient answer to the argument drawn from that act, to observe that its requisitions were not pursued. It permits authenticated copies of wills, proved according to the laws of any state of this *Union, [*572 relating to any estate within that state, to be offered for probate in the court of the county where the estate lies, and authorizes the same to be there recorded; and it then proceeds to declare the effect of such recording to be, to render the will good and valid, as if it had been made in the state, subject, nevertheless, to be contested as the original might have been. But it does not appear that the copy of this will was offered for probate and admitted to record. Had it been so offered, it might have been contested, and for anything that we can say, the sentence of the Court of Probate might have been not to admit it to record. 3. The last point remains to be considered. That the objection to the validity of this will to pass the lands in controversy to the respondents, was not made in the court below, is highly probable, as we observe that it is not noticed, much less relied upon, in the answer. Nevertheless, the will, duly proved and recorded, according to the laws of Ohio, constituted the sole title under which the plaintiffs in the court below claimed the lands in dispute. It was as essential, therefore, to the establishment of that title, to allege in the bill, and to prove by the evidence, or by the admission of the defendant, that this will had been proved and recorded, according to the laws of Ohio, as to set forth and prove the existence of the will itself. The defect in the title of the respondents appears upon the face of the bill, and as it contains no allegation that a copy of the will had been duly proved and recorded, the defendant cannot be said to have admitted [*573 those facts by not denying them in his answer. The court erred, therefore, in decreeing an assignment of all the warrants, entries, and surveys under the warrants, to the complainants. Considering, as we must, in the present state of the cause, that A. Mcon died intestate as to these lands, they of course descend to those persons who are entitled to the same according to the laws of Ohio; and this is a subject fit to be decided by the court below, to which the cause must be remanded for further proceedings. Decree reversed, and the cause remanded for further proceedings. [Local Law.] MEREDITH et al., Appellants, V. PICKET et al., Respondents. Under the following entry, "H. R. enters 2,000 acres in Kentucky, by virtue of a warrant for mill 573 tary services performed by him in the last war, in the fork of the first fork of Licking, running up each fork for quantity;" it appeared in evidence that at the first fork of Licking, the one fork was known and generally distinguished by the name of the South Fork, and the other by the name of the main Licking, or the Blue Lick Fork, and that some miles above this place the South Fork again forked. Held, that the entry could not be satisfied with lands lying in this first fork. 574] In such a case, the entry could not be explained, and the survey supported, by oral testimony. The notoriety and names of places may be shown by such testimony, but the words of an entry are to be construed by the court as any other written instrument. THIS HIS cause was argued by Mr. Bibb for the appellants, and by Mr. Talbot for the respondents. Mr. Chief Justice Marshall delivered the opinion of the court: This case depends entirely on the question, whether the entry under which the appellees claim has been surveyed on the land for which it calls. The entry is in these words: "Holt Richeson enters 2,000 acres in Kentucky, by virtue of a warrant for military services performed by him in the last war, in the fork of the first fork of Licking, running up each fork for quantity." It is shown in testimony, that at the first fork of Licking, the one fork was known and generally distinguished by the name of the South Fork, and the other by the name of the main Licking, or the Blue Lick Fork. Some miles above this place the South Fork again forks. The land of the appellees has been surveyed in the first fork. It is contended by the appellants, that the entry calls for land in the second fork, and that the survey is made on lands which will not satisfy its words. The first The court concurs in this opinion. fork of the first fork cannot be the first fork itself. Whatever difficulties may attend the attempt to place the lands properly the court 575* feels none in *saying that the entry cannot be satisfied with lands lying in the first fork. Some other objections were made in argument, which it is unnecessary to notice, as this is completely decisive of the case. It may not, however, be improper to say, that the attempt of the appellees to explain their entry, and to support their survey, by depositions, cannot avail them. It is the proper province of testimony to show the notoriety and names of places, but not to explain a written instrument. That is the proper province of the court. The judges must construe the words of an entry, or of any other title paper, according to their own opinion of the words as they are found in the instrument itself, and not according to the opinion of witnesses, who may or may not be selected for the purpose. ERROR At June term, In 1797, John Denn, lessee of Ambrose Walden, instituted an action of ejectment in the United States District Court of the district of Kentucky, against Richard Fen, as casual ejector. The declaration states a demise for the term of ten years from the 15th day of August, 1789. At March term, 1798, Lewis Craig and Jonathan Rose were admitted defendants, in place of Richard Fen, the casual ejector; and entered into the usual rule, confessing the lease, entry, etc. 1800, judgment was rendered for the plaintiff for his term yet to come, etc., and a writ of hab. fac. poss. was awarded. On the 5th day of September, 1800, Thomas Bodley and others, claiming as landlords of Craig and Rose, obtained an injunction to the above judgment. At May term, 1809, the bill of injunction was In Sepdismissed, for want of jurisdiction. tember, 1811, Bodley and others obtained a second' injunction to stay execution on the judgment at law in ejectment. At May term, 1812, the injunction was dissolved on [*577 hearing, on bill, answers, depositions and exhibits; and in April, 1813, the complainants Walden, on the 22d of dismissed their bill. May, 1819, took out a writ of hab. fac. poss. which was quashed by the court, on ground, it is presumed, that the term stated in the declaration in ejectment had expired. At November term, 1821, Walden moved the court to enlarge the term stated in the declaration. The court being divided, the motion was entered as overruled; and the plaintiff (Walden) took out a writ of error to the judgment of the court on this motion. the This cause was argued by Mr. Taylor' for the plaintiff, no counsel appearing for the defendant. Mr. Chief Justice Marshall delivered the opinion of the court: Upon this case two questions arise: 1. Ought the Circuit Court to have granted leave to the plaintiff to extend the term laid in his declaration? 2. Does a writ of error lie to the refusal to grant this amendment? It has been truly said in argument, by the counsel for the plaintiff in error, that the power of amendment is extended at least as far in the 32d section of the judiciary [*578 act, as in any of the British statutes; and that there is no species of action to which the disThe decree of the Circuit Court, perpetuat-cretion of the court in this respect ought to be ing the injunction awarded to the appellees to more liberally applied than to the action of restrain the appellants from proceeding on their judgment in ejectment, is erroneous, and 807; 2 Burr. 1,159; 4 Burr. 2447; Str. 1272; ought to be reversed, and the bill of the plain-Cowp. 841; 7 Cranch, 569; 1 Cranch, 110; 4 Cranch, 237; 4 Cranch, 324; 5 Cranch, 11; Cranch, 15; 6 Cranch, 206; 7 Cranch, 569. tiffs in the Circuit Court dismissed. Wheat. 9. 1. He cited Cro. Jac. 440; 1 Salk. 47; 2 Str. ejectment. The proceedings are all fictitious, | and the jury, being unable to agree, were dis. fabricated for the mere purposes of justice, charged by the court from giving any verdict and there is every reason for allowing amend-upon the indictment, without the consent of ments in matters of mere form. There is pe- the prisoner, or of the attorney for the United culiar reason in this case, where the cause has States. The prisoner's counsel, thereupon, been protracted, and the plaintiff kept out of claimed his discharge as of right, under these possession beyond the term laid in the dec- circumstances; and this forms the point upon laration, by the excessive delays practiced by which the judges were divided. The question, the opposite party. The cases cited by the therefore, arises, whether the discharge of the plaintiff's counsel in argument are, we think, jury by the court from giving any verdict upon full authority for the amendment which was the indictment, with which they were charged, asked in the Circuit Court, and we think the without the consent of the prisoner, is a bar to motion ought to have prevailed. But the any future trial for the same offense. If it be, course of this court has not been in favor of then he is entitled to be discharged from custhe idea that a writ of error will lie to the tody; if not, then he ought to be held in im. opinion of a circuit court, granting or refusing prisonment until such trial can be [*580 a motion like this. No judgment in the cause had. We are of opinion that the facts constiis brought up by the writ, but merely a de- tute no legal bar to a future trial. The prison. cision on a collateral motion, which may be re- er has not been convicted or acquitted, and newed. For this reason, the writ of error may again be put upon his defense. We think, must be dismissed. that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a mani. fest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in of the judges, under their oaths of office. We this, as in other cases, upon the responsibility are aware that there is some diversity of opinion and practice on this subject, in the American courts; but, after weighing the question with due deliberation, we are of opinion that such a discharge constitutes no bar to further 579] [*Practice.] THE UNITED STATES v. JOSEF PEREZ. The discharge of the jury from giving a verdict in a capital case, without the consent of the prisoner, the jury being unable to agree, is not a bar to a subsequent trial for the same offense. The court is invested with the discretionary authority of discharging the jury from giving any verdict, in cases of this nature, whenever, in their opinion, there is a manifest necessity for such an act, or the ends of public justice would otherwise be defeated. R. JUSTICE STORY delivered the opin MR ion of the court: This cause comes up from the Circuit Court for the southern District of New York, upon a certificate of division in the opinions of the judges of that court. The prisoner, Josef Perez, was put upon trial for a capital offense, NOTE.-Discharge of jury before verdict. Former | adjudication in criminal cases. A former conviction cannot be pleaded in bar, unless it has been followed by judgment. States v. Herbert, 5 Cranch, C. C. 87. A discharge of the jury in a capital case, on the ground of insanity in one of the jurors, without the consent of the prisoner or his counsel, is not a good plea in bar to the further trial of the prisoner, as such discharge is within the discretion of the court. U. S. v. Haskell, 4 Wash. C. C. 402. It is not a good plea in bar to an indictment for a misdemeanor, that the case was once committed to a jury, and withdrawn before the verdict, by order of the court. U. S. v. Morris, 1 Curt. C. C. 23. A person convicted of an assault and battery committed in a riot, may still be tried and convict ed of the riot. U. S. v. Peaco, 4 Cranch, C. C. 601. A conviction and sentence of one, not a member of Congress, by the House of Representatives, for a breach of privilege, by assault and battery on one of its members for words spoken in debate, are not a bar to a criminal prosecution_by_indictment for the same assault and battery. U. S. v. Houston, 4 Cranch, C. C. 261. An acquittal upon an indictment for forging an order with intent to defraud John Lang, is no bar to an indictment for forging the same order with Intent to defraud William Lang. U. S. v. Book, 2 Cranch, C. C. 294. Conviction for keeping a disorderly house is a bar to a prosecution for the same offense at any time prior to the finding of the indictment. U. 8. v. Burch, 1 Cranch, C. C. 36; Dixon v. Corp. of Wash., 1 Cranch, C. C. 114. A conviction for keeping a faro bank, contrary to a municipal by-law, is no bar to an indictment for keeping a disorderly house, on same evidence. U. S. v. Hood, 2 Cranch, C. C. 133. Conviction for larceny of a pocket-book is a bar to a subsequent Indictment for stealing a note in the pocket-book at the time. U. S. v. Lee, 4 Cranch, C. C. 446. Conviction for robbing the mail and putting driver's life in danger is a bar to a subsequent pros ecution for same offense or any part of it. Ú. S. v. Wilson, 7 Pet. 150. Withdrawal of a juror is matter in the discretion of the court. The fact that the court has excluded evidence offered by defendant under a notice of special matter which is defective, is not a surprise which will warrant a withdrawal. Foote v. Silsby, 1 Blatchf. 445; Affirmed, 14 How. 281. Discharge of a sick juror after counsel had commenced to open the case, but before any evidence offered, and swearing another juror in his place, no objection being made, is no error, Silsby V. Foote, 14 How. 218; Young v. Marine Ins. Co., Cranch, C. C. 556. The court has power to discharge the jury impaneled to try the issue in a criminal cause, when. ever it is necessary for the purposes of justice, and there is no exception of capital cases. U. S. v. Coolidge, 2 Gallis, 364. proceedings, and gives no right of exemption to Mr. Justice Thompson delivered the opinion of the court: This case comes up on a writ of error to the Circuit Court of the District of Columbia; and by the record it appears that the action in the court below was prosecuted against Renner, the plaintiff in error as indorser of a promissory note, drawn by James Foyles, and discounted at the Bank of Columbia. The note bears date on the 9th day of January, 1817, for $4,600, *and is payable sixty days aft- [*583 er date. In the declaration it is averred, that demand of payment of the maker was made on the 14th of March, which was on the fourth day after the expiration of the sixty days which the note had to run. Several questions, arising out of the record, have been presented for the consideration of [Promissory Note. Evidence. Pleading. Local the court. The principal one, however, is that Law.] RENNER, Plaintiff in Error, V. THE PRESIDENT, DIRECTORS, and COMPANY of THE BANK OF COLUMBIA, Defendants in Error. By the custom of the banks in the District of Columbla, payment of a promissory note is to be demanded on the fourth day after the time limited for the payment thereof, in order to charge the indorser, contrary to the general law merchant, which requires a demand on the third day. Evidence of such a local custom is admissible, in order to ascertain the understanding of the parties, with respect to their contracts made with reference to it. which relates to the time of demand of payment of the maker of the note, and grows out of a bill of exceptions taken upon the trial. This has been pressed upon the court as a question of great importance, and the decision of which, in its application to the concerns of the bank, will have a very wide and extensive effect. We shall proceed to the consideration of this point, in the first place, leaving the others, which are of minor importance, to be noticed hereafter. The testimony given at the trial was for the purpose of showing that the Bank of Columbia had, from its first establishment, in 1793, adopted the practice of demanding the payment of notes discounted by it, on the fourth day after the time limited for the payment thereof, according to the express terms of the note. And that such was the universal custom of all the banks in Washington and Georgetown. That this custom was well known and underQuære, Whether a declaration, in such a case, not stood by the defendant, when he indorsed the averring the local usage, would be good upon denote in question. After this testimony had Cases in which evidence of commercial usage is admissible, in order to ascertain the meaning of contracts. The declaration against the indorser, in such a case, must lay the demand on the fourth, and not on the third day. murrer. Secondary evidence of the contents of written instruments is admissible, wherever it appears that the original is destroyed, or lost, by accident, without any fault of the party. 582*] In the case of a lost note, it is not necessary that its contents should be proved by a notarial copy. All that is required is, that it should be the best evidence the party has it in his power to produce. To admit secondary evidence of a lost note, it is not necessary that there should be a special count In the declaration upon a lost note. THIS cause was argued by Mr. Webster and 1.-They cited Rushton v. Aspinwall, Doug. 679; Chitty on Bills, 62, 465; Bayley on Bills, 185, 186; 7 East's Rep. 231: Lyndo v. Burgos, per Sir W. Grant, 1 Wheat. Selw. N. P. 280; Heylin v. Adamson, 2 Burr. 678; Thompson v. Ketchum, 8 Johns. Rep. 189: Hoare v. Graham, 3 Cowp. 57; 1 Phillips on Evid. 432, 433, 496, 498; Lewis v. Thatcher, 15 Mass. Rep. 431; Edle v. E. I. Company, 2 Burr. 1216; Davis v. Todd, 4 Taunt. 672. 2. He cited 4 T. R. 153, 173; 2 Caines' Err. 196; 2 Calnes' Rep. 443; 1 Calnes' Rep. 43; 18 Johns. Rep. 230; 12 Johns. Rep. 423; 13 Johns. Rep. 470 1 Phillips on Evid. 490, 492; 1 Harris & Johns, 423; 4 Mass. Rep. 251; 6 Mass. Rep. 449, 477; 9 Mass. Rep. 155, 159; 10 Mass. Rep. 26, 366; 12 Mass. Rep. 89; 3 Dall. Rep. 365, 415, 5 Cranch, 49 9 Cranch, 1. for the defendant below called upon the court been received, without objection, the counsel to instruct the jury, that upon the evidence so given by the plaintiffs, of a demand upon the *maker of the note, on the fourth day [*584 after the time limited by the note for the payment, the defendant was not liable on his indorsement; which instruction the court refused to give, and a bill of exceptions was thereupon taken. This court must therefore assume as estab lished facts (and, looking at the evidence before the jury, no doubt could be entertained on the subject), that the custom of the Bank of Columbia, and all the other banks in Washington and Georgetown, from their first institution, had been to demand payment of notes due them, on the fourth day after the time limited therein; and that this custom was known and well understood by the defendant, Renner, when he indorsed the note in question; and it may be added, with full knowledge NOTE. As to time of demand of payment of promissory notes and bills, in order to charge indorser, see notes to 1 L. ed. U. S. 640; 2 L. ed. U. S. 102; 5 L. ed. U. S. 215. As to loss of instrument and secondary proof of its contents, see note to 5 L. ed. U. S. 414. Necessity of knowledge of banking custom, see note to 21 L.R.A. 445. and expectation that this note was to be dealt | with in the same way; for it was a renewal of a discount, continued for a considerable time before, on other notes similarly drawn and indorsed, some of which had been demanded in like manner, and protested, and afterwards paid and taken up by himself. Under such circumstances, it would seem that nothing short of some positive and unbending principle of law could shield the defendant from responsibility. But, so far from trenching upon any such principle, we think his liability completely established, by well-settled rules of law. It seems to be assumed as the settled law of promissory notes, that in order to charge an indorser, demand of the maker must be made on the third day after that limited in the note; 585*] and that this is so stubborn a rule that parties are not permitted to violate it, even by their mutual agreement. for a note, which upon its face has sixty days to run, is in truth and in fact a contract for sixtythree days, and interest is taken for that time. And how is it ascertained that it is a note for sixty-three days, but by looking out of the contract, and finding what was the understanding of the parties? Where the custom has existed for a long time, and has become general, courts of justice, as before observed, will notice it ex officio; and where it has not, it is matter of proof. If this is not the light in which these transactions are to be considered, all banks are chargeable with usury; for all take interest beyond what is allowed by law, if time is to be determined by the note itself. The general rule of law is, "that demand of pay. [*587 ment must be made of the maker, when the note falls due; and that time, as now settled, is on the last day of grace; and even this rule is of recent date, for in the King's Bench in England, as late as the year 1791, about coeval with the institution of this bank, and the custom established by it, we find (Leftly v. Mills, 3 T. R.) Lord Kenyon and Mr. Justice Buller differing on this very point; the former holding that, by analogy to other contracts, the acceptor of a bill of exchange had the whole of the third day of grace to pay the bill, and that a demand on the fourth day was not too late. Mr. Justice Buller thought the demand ought to be made on the third day of grace; that the nature of the acceptor's undertaking was to pay the bill on demand, on any part of the third day of grace; and he inferred this, from its having been, as he said, the practice to make the demand on that day. If it was a doubtful question in England, so late as the year 1791, whether the demand ought to be made on the third day of grace, or the day after, this bank is not chargeable with any culpable innovation upon long-established rules of law or usage, by adopting the practice of making the demand on the fourth day. We admit, in the most unqualified manner, that the usage of making the demand on the third day of grace has become so general, that courts of justice will notice it ex officio; and in the absence of any proof to the contrary, will presume that such was the understanding of all partics to a note, when they put their names upon it. But that this rule has any attributes so inviolable, as not to be touched by the parties to negotiable paper, cannot be admitted. It has its origin in custom, and that custom, too, comparatively, of recent date; and is not one of those, to the contrary of which the memory of man runneth not, and which contributed to make up the common law code which is so justly venerated. So far from this, that the allowance of any days of grace, is in derogation of the common law rule, applicable to other contracts. They are, emphatically, the mere creatures of usage, varying in different countries, to suit the views and convenience of men in business, originally gratuitous, and not binding on the holder. The common law would require payment on the last day limited by the contract, and would also give to the maker the whole of that day. It is a set-testimony is to alter and vary, by parol evitled principle of the common law, applicable to all contracts, that a party has until the last day limited by his agreement, to perform his engagement, and even until the last hour of the day. The common law knows of no fractions of a day; custom, however, and that introduced, too, principally by banks, has lin586*] ited *the day to a few hours of business. But this, and whatever other rules have been adopted by consent, and merely for the convenience of commercial men, are departures from the common law doctrine. When, therefore, the allowance of only three days of grace is said to be the law of the contract, by bills of exchange and promissory notes, nothing more can be intended than that custom has so long sanctioned this rule that all dealers in paper of this description are understood to govern themselves by it. The law of the contract, properly speaking, is to pay when due; and that time is to be ascertained, either from the contract per se, or that taken in connection with some known custom, which the parties are presumed to have tacitly consented should be made a part of the contract. And it is in this view only, that three days of grace are allowed, where that custom is recognized as the rule; It is said, however, that the effect of this dence, the written contract of the parties. If this is the light in which it is to be considered, there can be no doubt that it ought to be laid entirely out of view; for there is no rule of law better settled, or more salutary in its application to contracts, than that which [*588 precludes the admission of parol evidence, to contradict or substantially vary the legal import of a written agreement. Evidence of usage or custom is, however, never considered of this character; but is received for the purpose of ascertaining the sense and understanding of parties by their contracts, which are made with reference to such usage or custom; for the custom, then, becomes a part of the contract, and may not improperly be considered the law of the contract; and it rests upon the same principle as the doctrine of the lex loci. All contracts are to be governed by the law of the place where they are to be performed; and this law may be, and usually is, proved as matter of fact. The rule is adopted for the purpose of carrying into ef fect the intention and understanding of the parties. That the note in question was to be paid at the Bank of Columbia, and to be governed by the regulations and custom of the |