
    LOVE vs. PAYTON.
    Case. The second count stated an order drawn by the defendant on William Love, the plaintiff, in favor of Abner Bush, for a horse, stating that he would be security for the payment of the horse. An order was produced directed to David Love, upon which William Love, the plaintiff, delivered the horse to Bush.
    Proof of the hand writing of the obligor can not be received when the subscribing witness resides in the U. States.
    Barry for plaintiff,
    stated, that Bash had been subpœned, that he told the counsel he would not attend, that he had absconded, and was now in the state of Ohio ; he therefore moved, that proof of Payton’s hand writing might be received.
    White for the defendant
    objected, not only upon the ground, that the evidence could not be received by the court, but if it could, the second count could not be supported by the order produced, which was directed to David instead of William Love, and for this he cited 2 Esp. 132. 3 East. Rep. 207, 2 Esp. 537.
   Per Curiam.

Evidence of the hand writing cannot be received ; Bush’s testimony would be the best evidence, this is admitted at the bar. By the English practice, if a witness be beyond the reach of the process of the court, secondary evidence may be received. This has not been our practice, where the residence of a witness is known to be another state, his deposition ought to taken. It is admitted that Bush is in Ohio, and the circumstance of his telling the counsel that he would not attend, cannot alter the ease. Non-suit. 
      
       See 2 East. 250 John Rep. 451.
     