
    * Simon Bradstreet and Another versus Aaron Baldwin.
    Where the master of a chartered vessel was prevented from delivering the cargo by a seizure for the default of the freighter, the owners were held entitled to the hire, as upon an actual delivery.
    A deposition, taken in perpetuara, cannot be used in evidence, if not recorded within three months from its caption.
    Covenant broken upon a charter-party, whereby the plaintiffs let to the defendant the brig Washington, whereof Charles Backus was master, for a voyage from Boston to the Island of Tobago and back to Boston, for the sum of 2100 dollars for the whole voyage; and in said charter-party was contained (amongst others, on which no question arose) the following agreement, viz.: “ As soon as said brig is loaded, the master shall without delay clear out at the custom-house, and return with all possible despatch to the port of Boston, and there deliver said cargo to said Baldwin, at such wharf as he may direct.”
    The defendant pleaded in bar that at said Tobago he shipped on board said brig 134 puncheons of rum, 22 barrels of molasses, and 1 puncheon of shrub, to be transported from Tobago to Boston in said brig, and there to be delivered to said Baldwin, according to the condition and agreement mentioned in said charter-party; which said cargo the said Backus, master of the said brig, received on board, to be transported and delivered accordingly; but had never delivered the same to the said Baldwin, according to the covenant and agreement of the plaintiffs.
    The plaintiffs replied that the said master of said brig did deliver ¿aid cargo to the defendant, according to the covenant and agreement contained in said charter-party; upon which issue was joined.
    At the trial of this issue, which was had before Thatcher, J., October term, 1812, the plaintiffs, to prove the issue on their part, offered, and were permitted to read, the deposition of Charles Backus, now deceased, although objected to by the defendant. The said deposition was taken, in perpetuara rel memoriam, on the 15th of June, 1811, before two justices of the peace for the county of Suffolk, quorum unus, and recorded in the registry of deeds for the county of Kennebeck on the 18th of October, 1811, at the taking of * which, the said Baldwin was present, [ * 230 ] and objected to the taking thereof, because he had only three hours’ notice of such taking.
    In the said deposition, the said Backus testified that he sailed from Tobago in said brig on the 10th of March, 1811, and arrived at Boston on the 7th of April following, being Sunday morning, and came to anchor near the Long Wharf about 7 o’clock, A. M. After-wards the boarding officer of the government took the manifest, carried it to the custom-house, and made a regular report, as usual. During the forenoon of the same Sunday, the defendant came to the witness’s house, in Boston, when the witness asked him where he should haul the vessel; he said, to the south side of India Wharf, near his counting-room; and the witness thought he said that the vessel would probably be seized by the government, and, whether that was so or not, it would be a convenient place to unload the vessel. The next morning the vessel was accordingly hauled thither, and the same morning the witness and the defendant went to the custom-house, and offered to enter the vessel in the customary form; but the deputy collector said the vessel must be seized, and the sur veyor inquired of the witness where the vessel lay, and was informed. The witness then went away, and, returning in half an hour, was told by the officers of government that the vessel was seized, and he was then permitted to enter the vessel. On Wednesday, the vessel was begun to be unloaded at the same place, a custom-house officer having been on board from the time of the seizure. The witness could not tell to whom the cargo was delivered, whether to the defendant, or to the officers of government. No one ever receipted his bills of lading. During the landing of the cargo, there was an officer on the wharf by the goods landed, and another on board the vessel. In answer to a question put to him by the defendant, the witness said that, at the first conversation at the house of the witness, the defendant told him that, whoever had the cargo, it must be discharged; and, if it was to be given up to him, he should prefer to have it landed opposite his store, [ * 281 ] at India Wharf; * and that he supposed that would be as convenient a place, if the government retained it.
    On the part of the defendant, it was proved that Samuel Dowe was supercargo of the vessel, employed by the defendant; that he had no knowledge of the non-intercourse law until his arrival in Boston; that he contracted for the return cargo, to be delivered on or before the 20th of January, 1811; but, owing to the lateness of the crop, it could not be obtained until March, when it was put on board; and, being seized on the 9th of April, was on the same day libelled as forfeited in virtue of an act of Congress, entitled “ An Act to interdict all commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes; ” whereupon a warrant was issued, and the cargo was taken possession of by the marshal, who continued to hold the same until the 13th of April, when it was delivered to the defendant, by order of the district judge, the defendant having given bond for the appraised value of the same; that the libel was still pending, at the time of the trial, in the Court of the United States; and the defendant’s said bond remained in full force.
    The defendant, besides objecting to the admission of Backus’s deposition, contended that the cargo had never been delivered according to the covenant and agreement in the charter-party.
    The judge, besides admitting the said deposition, instructed the jury that, upon the whole evidence, the plaintiffs had maintained their action, and the jury returned a verdict accordingly.
    To this admission and opinion of the judge, the defendant filed exceptions, and the cause was argued upon the exceptions at the last June term in this county, by Wilde for the plaintiffs, and by Mellen and Williams for the defendant.
    
      For the defendant,
    
    it was insisted that the deposition, not having been recorded within ninety days, as required by the statute,  was not to be received in evidence. As the *use [ * 238 ] of depositions in our Courts of law is wholly by virtue of a statute provision, they must be brought within that provision, or they cannot be used.  Putting Backus’s deposition out of the case, the plaintiffs have wholly failed of proving a delivery; and having averred a delivery to the defendant, they must be holden to prove it as alleged. The defendant was entitled by his contract to a delivery, without any condition or restriction. A delivery obtained by giving his own bond to the value of the cargo was, as to the rights of the plaintiffs in this action, as no delivery at all. And such as it was, it was made by the United States, and not by the plaintiffs.
    
      Wilde, for the plaintiffs.
    The statute is merely directory, in requiring depositions in perpetúan to be recorded within a certain time. Its whole object is, that parties concerned in interest should have notice. This purpose, and more, was fully answered in the case at bar, as the defendant was notified and present at the caption. The same liberality is to be applied in this case as in the registry of deeds, and extents of executions on real estate. But if the deposition is put out of the case, there is other sufficient evidence, from the defendant’s own witness, that the cargo was delivered to him, as soon as he relieved it from a detention wholly induced by his own breach of the laws of the land.
    The cause stood over to this term for advisement, and now
    
      
      
        Stat. 1797, o. 35, § 8
    
    
      
       5 Mass. Rep. 219, Amory vs. Fellowes.
      
    
   The Court

observed that, if the defence was to avail the defendant, it must be on the ground that the covenant, as it is expressed in the charter-party, was to pay 2100 dollars in full for the freight in thirty days after the return cargo should be discharged.

If there was evidence of a readiness, on the part of the plaintiffs, to deliver the cargo to the defendant, and the actual delivery and discharge of it had been prevented by the neglect of the defendant to receive it, or if the delivery was intercepted by an attachment or seizure for a default of the defendant, the plaintiffs would be as well entitled * upon this evidence, as they [ * 233 ] would be upon proving an actual discharge and delivery of the cargo. Whether this was proved, or not, by the testimony of Tfowe, the supercargo, is a question which we cannot decide; and it was not left to the jury upon that evidence. Perhaps other evidence may be adduced of the fact,

The objection insisted on against the testimony of Backus,t although hardly consistent with any pretensions of mercantile honor, we think must be yielded to. The statute provisions respecting depositions taken in perpetuara were not punctually observed ; and the deposition admitted at the trial, not having been recorded within the term prescribed, was not in that authentic form which the statute requires.

The exceptions therefore prevail; the verdict is to be set aside, and a new trial is granted. 
      
      
         A covenantor will be discharged from the obligation of his covenants, if the party for whose benefit they are made performs an act whereby the covenantor is incapacitated to observe his contract. — Co. Lit. 206.—2 Mod. 28. — Studholme vs. Mandell, 1 Lord Raym. 279. — S. C. Lutw. 213, Nels. fol. edit. — City of London vs. Greene, Cro. Jac. 182. — Keilw. 34, b.— Carrell vs. Read, Cro. Eliz. 374. — S. C. Owen, 75. — S. C. Carith vs. Read, Mo. 402. — Barker vs. Fletwell, Godb. 69. — Hotham vs. East India Co. Dougl. 272—278.—Jones vs. Barkley, 684—695. — The omission of the covenantor to do some act necessary on his part to the execution of the covenant may also be a ground for excusing the covenantor. — Rol. Abr., Cond. U, pl. 2.— Gallini vs. Labone, 5 D. & E. 242.— Twyford vs. Buntley, Freem. 121.— S. C. Twiford vs. Buckley, Carter, 205. 3 Keb. 383, 203.— Wynne vs. Fellowes, Holt, 466. — S. C. 1 Show. 334. — Smith vs. Barnes, Rol. Abr., Cond. G, pi. 8. — As to the effect of intermarriage, see Gage vs. Acton, 1 Lord Raym 515. — S. C. Holt, 309. 12 Mod. 288. 1 Salk. 325, lib. ent. — S. C. Gage vs. Acton, Carth. 511. Com. 67. — Acton vs. Fierce, 2 Vern. 480. — S. C. Prec. Chan. 237. — 1 Eq. Ca. Ab. 63, pl. 5, 316; pl. 9. — 5 T. R. 387. — Milbourn vs Ewart, 5 D. & E. 381. — Foord vs. Foord, Ibid. 386.— Heading vs. Davis, Skin. 409. — S. C. Gibbons vs. Davis, Comb. 242. — Lupart vs. Hoblin,2 Sid. 58. — 1 Lord Raym. 518. — 1 Vent. 344. — Belcher vs. Hudson, Cro. Jac. 222. — Yelv. 156. — Clark vs. Thomson, Cro. Jac. 571.— Smith vs. Stafford, Hob. 216. — Hut. 17. — Noy, 26. — Lit. 32. — Hett. 12.
     