#### Francis Ward *v*. Horace Ely.

From Washington.

In articles for the purchase oflancl, whereby the purchaser covenanted to pay in notes “ such as he would be responsible for,” the covenant binds him as a guarantor.

A deposition must be sealed up by the commissioners, so as to prevent inspection and alteration ; it need not be certified under the seals of the commissioners.

Covenant upon articles for the sale of land, the material part of which is as follows : “ And I do agree to make the payments in the following manner, one-third *“*on the 1st of March 1820, in your own (the Plaintiff’s) “ notes qr cash, one-third on tito 1st of March, 1821, in *“*notes of hand such as I will be responsible for the pay- *“*ment of,” with a stipulation precisely similar as to the residue of the purchase money. The breach assigned, Was that the Defendant had refused to pay the amount of a note made by one *Blount,*payable to him, and by him delivered to the Plaintiff, in discharge of one of the two last instalments of the purchase money.

On the trial, the Defendant offered in evidence a deposition *“*taken in the city ofNew-York, and the caption “ stated that attended on the part of the *“*Plaintiff, and S. B. C. and A. R, as commissioners on “ the part of the Defendant. The deposition was taken *“*by said C. arid said R. who were, named commission- “ ers in the said commission, but was not certified under *“*their seal or seals.” The presiding Judge refused to let the deposition be read. It was proved that *Blount*was insolvent when the note was delivered to the Plaintiff, and that his insolvency was then known to the Defendant.

His Honor Judge Martin, instructed the Jury to en-quire whether the amount due upon *Blount’s*note would be lost to the Plaintiff, unless made good to him by the *373Defendant, and “ if they should be of opinion it would be lost, they were then to enquire whether the loss was owing to the laches and want of due diligence on the part of the Plaintiff, or whether it was owing to the insolvency or want of ability, in *Blount*to pay. If the former, they ought to find for the Defendant; if it was owing to the insolvency of *Blount,*they ought to find for the Plaintiff.” Under this charge, a verdict was returned for the Plaintiff, and the Defendant obtained a rule for a new trial $ 1st, because the Judge erred in rejecting the deposition ; ad, on the ground of misdirection. The rule being discharged and judgment rendered on the verdict, the Defendant appealed.

Hogg, for the Defendant, insisted,

that the Judge below erred in rejecting the.deposition. The fact that it was not certified under the hands and seals of the commissioners, was no objection to *it;*the direction in the writ to return it under the hands and seals of the commissioners, .only meant that it should not be sent open, and therefore liable to inspection and alteration.

2d. That the Judge erred 'in his charge to the Jury ; lie should have instructed them that-no action could be brought on the covenant, because its meaning was not to guaranty the notes assigned, but.to give the Plaintiff an option, either to take them without endorsement, Or to require the Defendant’s endorsement. If *Blount’s*note was taken by the Plaintiff without endorsement, the Defendant was not answerable, because the Plaintiff liad exercised his election : if it was endorsed to the Plaintiff, then the Defendant was liable only upon his endorsement, and iri either case thp covenant was *functus officio.*

*Hevereux,*on the other side, contended,

that the Judge below had rejected the deposition upon the fact which he had ascertained, that it was taken by the *agent*of the Defendant, and however erroneous his decision was, yet *374being upon a collateral issue of fact, it could not be reviewed in this Court.

2. Covenants are to 'ue taken most strongly against the covenantor. Here the Defendant binds himself to a positive and unconditional responsibility ; but the construction contended for, only gives the. Plaintiff the option of no liability at all on the Defendant, or of that conditional obligation, which the law imposes upon an endorse)'. Suppose the action had been brought upon the 'endorsement of ¡.lie Defendant, the covenant most clearly would be evidence to prove him liable, not as an endorses', but as a guarantee, and the spirit and meaning of (lie covenant is that be shall be so liable.

Ham, Judge.

The Plaintiff’s remedy, upon the covenant, does not depend upon the question, whether he has used all the diligence in applying to *Blount*for payment, and in ca.->e of non payment in giving notice to the Defendant, which the law requires of an endorsee of a negotiable instrument, before he can maintain a suit against the endorser. Strict- diligence in both respects, is held to he indispensable in the mercantile world,'and indeed was required of every person, (whether merchant or not) who became, a party to such instruments, until the case of *Britain*v. *Johnston,*decided at the last term, *(ante*293).

If the Plaintiff is held to sue!) diligence in this case, it was unnecessary for him to procure the covenant from the Defendant, upon which he has brought suit.— Thai covenant, I think, has withdrawn the parties from the strict rules applicable to negotiable papers, and placed them upon the plain inartificial principles of justice and common sense 3 principles, which in the eyes of plain, untutored men, are not obscured by any technicalities Or refinements.

The Defendant covenants that he will deliver to the Plaintiff notes of hand, such as lie will be responsible for the payment of. With respect to *Blount’s*note, which *375was one thus transferred, the Court directed the Jury, that “ if they should be of opinion, that it would bclost through *Blounfs*insolvency, they were to enquire whether the loss was owing to the laches and want of due diligence on the part of the Plaintiff, or whether it was owing to the insolvency or want of ability in *Blount*to pay. If the former, they ought to find for the Defendant j if it was owing to the insolvency of *Blount,*then they should find for the Plaintiff.” .Under this charge, (properly given, as I think,) the Jury found a verdict for the Plaintiff. I see nothing in the law or justice of the case, that ought to disturb it.

There is another ground, on which, a new trial is moved *for;*that is, the rejection of the deposition. Why the deposition was not taken by the commissioners, chosen by both parties, does not appear. No reason is assigned, nor is any reason given, why the persons named in the commission, ought not to have taken it. As far as appears, they stood indifferent between the parties.

It is stated farther, that the deposition was not certified under the seals of the commissioners, which the commission directed. If by this is meant, that seals were not affixed to their names, I cannot think the objection a good one, if from their certificates, it appears that they acted in the character of commissioners. When the deposition was taken, it. was their duty to return it to Court with the commission .under *seal;*it certainly was not to be sent open, subject to be inspected, or altered' by any body. I could wish that this part of the case bad been more fully stated. The deposition may be of importance to the Defendant: ■ I think it right that there should be a new trial therefore, on account of its rejection.

Per Curiam. — Judgment reversed.