
    STEWARD against BOWNE.
    OH CERTIORARI.
    The action below, was brought on a warranty in the sale of a mare. The state of demand set out that the plaintiff bargained with the defendant to exchange with him a certain pair of oxen, of the value of $75, for a certain mare of the defendant’s, valued by the said defendant at $90, as per defendant’s bill of sale and warranty, together with defendant’s bill of $15, being the value of the plaintiff’s oxen; that the same was a valuable [*] consideration for a good sound mare. The state of demand then went on and stated the unsoundness of the mare, &c. On the trial, a bill of sale, in the following words and figures, was given in evidence.
    
      0. Bowne bought of James Steward, a grey mare, 4 years old, and warranted sound, $60.
    Received payment for the above,
    JAMES STEWARD.
    It was objected that there was a variance between the state of demand and the proof; that the plaintiff had undertaken to set out a written agreement, and had given in evidence a different agreement than the one which he had set out in the state of demand.
    On the trial, there was read in evidence, a deposition, on the face of it taken in the usual way, that the witness was duly sworn, according to law. The justice states that the witness was sick, and unable to attend, and that the deposition was taken according to law, and that the defendant had notice in writing, of the time and place of taking the deposition; and that the defendant admitted that he had received due notice.
    It was objected, that this deposition was not taken according to law. A letter from the plaintiff to the defendant, was given in evidence on the trial. The justice states, that it was proved that a copy of this [699] letter had been delivered the defendant before the mare died; the letter informed the defendant that the mare was diseased, and requested him to come up and see her, and satisfy himself. It also mentioned that he had warranted the mare. It was objected, that the letter was not legal evidence; that it was admitting a parly to furnish evidence for himself by his own letters.
   Pennington, J.

As to the first and fourth objection, there is nothing in them. As to the second objection, [*]. the state of demand does not pretend to set out the written agreement, but only refers to it. It states the contract more largely than was contained in the written agreement, but I think there is no ground to reverse on that objection. The third objection has more weight. I think it should appear on the deposition taken under the act, that the witness was carefully examined and cautioned, and sworn to testify the whole truth. Bloom, 77. Instead of which, the justice certifies that the witness was duly sworn, according to law; but as the defendant had notice of the examination, and might have attended, I think it would be too strict to reverse for this cause, particularly, as the evidence was not objected to at the trial. As to the letter of the plaintiff, offered in evidence, I consider that as merely evidence of notice to the defendant, that the mare purchased of him was diseased, and and not as evidence of the contract; and as such, proper evidence; and, on the whole, that judgment be affirmed.

Kirkpatrick, C. J.

The reasons assigned are very general ; and upon the closest examination I do not find that they are supported by the record. Let judgment be affirmed.

Rosstíll, J. — -Of the same opinion.

Judgment affirmed.

Cited in Sayre v. Sayre’s Ad , 2 Gr. 487.  