
    *Hicks & Others v. Goode.
    January, 1842,
    Richmond.
    [37 Am. Dec. 677.]
    Witness — Competency—Obligee in Bond. — Four commissioners under decree in chancery for sale of land, are named obligees in bond for the purchase money ; and suit is brought on the bond, against the obligor, in the name of the four obligees, for the benefit of another person claiming the beneficiary interest in the debt: one of the obligees and plaintiffs, having no interest in the case except as being obligee and plaintiff, is a competent witness for defendant on a plea of non est factum.
    Non Est Factum — Want of Affidavit — Objection in Appellate Court. — In debt on a bond, defendant pleads that bond was delivered as escrow upon conditions which were not performed, et sic non est factum; the plea is not verified by affidavit of the party according' to statute 1 Rev. Code, ch. 128, § 33, but plaintiff makes no objection for want of such affidavit, and the plea is received by the court, issue joined upon it, trial, verdict and judgment for defendant: the want of the affidavit to the plea, is not a good objection to the judgment in an appellate court.
    Joint Bond — Escrow—Execution by Other Obligor — Case at Bar. — A bond prepared, intended and purporting on its face, to be the joint bond of G. and J. to four commissioners under decree in chancery for sale of land, is signed and sealed by G. and by him delivered to one of the obligees, upon condition that J. also shall execute it, otherwise it shall not be binding on G. but be null and void; J. never executes it; in debt on the bond against G. he pleads, that the bond was delivered to the obligee as an escrow, to be his deed only upon the condition that J. also should execute it, which J. never did, et sic non est factum : Held, the plea is a good bar. Dissentiente Allen, J.
    Escrow — Delivery to Grantee — Deed Incomplete on Its Face, — The rule of law, that a .deed cannot be delivered to a party to whom it is made as an escrow, to be the deed of the obligor only on condition, and that in such case the delivery is absolute and the condition nugatory, is applicable only to the case of deeds which are upon their face complete contracts requiring nothing but delivery to make them perfect according to the intention of the parties; not to deeds which upon their face import that something more is to be done besides delivery to make them complete and perfect contracts according to the intention of the parties.
    Debt, in the circuit superior court of Mecklenburg1, in the names of Reuben Hicks, James Harrison, Pascal Hicks and Ifittleberry Baugh, commissioners &c. *suing for the benefit of Robert Jackson, against Goode, on a bond for 590 dollars 62 cents. The declaration demanded that sum with interest from the 8th July 1827, and counted on the bond as the deed of Goode, and made profert of it, in the usual form.
    Goode craved oyer of the bond; and it was in the following words:
    “We John C. Goode of the county of Mecklenburg and Benjamin B. Jones of the county of Greenesville are held and firmly-bound unto Reuben Hicks, James Harrison, Pascal Hicks and Bittleberry Baugh, commissioners appointed by the county court of Brunswick to make sale of the land in the decree mentioned belonging to the estate of James Rawlings deceased, in the just sum of 590 dollars 62 cents, for value received, on or before the 8th day of July next. In witness whereof we have hereunto set out hands and seals this 13th day of July 1826.
    John C. Goode, [Seal.]” [Seal.]
    4 4 Teste
    “J. Rice as to J. C. Goode.”
    And then Goode pleaded in bar, that the supposed bond in the declaration mentioned, was made and signed by him on the day of its date, and by him delivered to Harrison, one of the obligees therein, as an escrow, to be by him kept, on this express condition, and none other, that Jones should sign and seal it as his act and deed, and should become thereby jointly and equally bound with Goode, as his joint co-obligor for the said sum of 590 dollars 62 cents due on the 8th July 1827, if Jones should refuse or fail to sign, seal and deliver *the bond, as joint co-obligor with Goode, then the same was not to bind Goode, and was to be redelivered by Harrison to him, and to be held null and void; and then the plea averred, that Jones never signed, sealed and delivered the instrument as his act and deed; whereby the instrument of Goode, so delivered to Harrison as an escrow, was wholly discharged, annulled and vacated; and so the same was not his deed: concluding to the country. The plaintiffs joined issue.
    There were two trials of this issue, but neither jury could agree, and there was no verdict. The plaintiffs then asked and had leave to withdraw their replication to Goode’s plea. And at a subsequent term, Goode offered two additional pleas: 1. That the supposed bond in the declaration mentioned, was, on the day of its' date, presented to Goode by Harrison, one of the obligees nominally, having no interest therein, he having declined acting as one of the commissioners to whom the writing was executed, for him Goode to sign and execute, and that Goode signed it, and left it in the custody of Harrison as an escrow, to be by him kept, on this express condition and none other, that before the delivery thereof to the plaintiffs, Harrison should procure Jones to sign and seal it as his act and deed, and thereby become jointly and equally bound with Goode as joint co-obligor, and if Jones should not sign, seal and deliver it, as joint 'co-obligor with Goode, then it was not to bind Goode, but was to be delivered and returned to him, and to be held null and void; and the plea averred that Jones did not sign, seal and deliver &c. whereby the writing so left in Harrison’s custody as an escrow, became and was wholly annulled &c. and so it was not Goode’s deed. Concluding to the country. 2. The other additional plea was like the first, except only that this plea, alleging, that the supposed bond was delivered to Harrison as an escrow, to he delivered to the plaintiffs upon Condition that Jones also should execute it, and '’That Jones never executed it, did not state that Harrison was one of the obligees in the bond. This plea also concluded to the country. The former plea, and the two additional pleas, were not, any of them, verified by affidavit.
    The plaintiffs objected to the admission of these additional pleas, not specialty because they were not verified by affidavit, but in general terms; the court allowed them;,and the plaintiffs excepted. The plaintiffs then put in replications to the pleas, traversing the fact that the bond was delivered by Goode to Harrison as an escrow, as Goode alleged, and concluding to the country. And Goode joined the issues.
    Upon the third trial of the cause, the jury found a verdict for the plaintiffs; but upon the motion of Goode, the court set aside the verdict and ordered a new trial, to which the plaintiffs excepted.
    It appeared by the bill of exceptions, that at the two former trials, neither of which resulted in a verdict, James Harrison, one of the obligees in the bond, to whom the pleas alleged it had been delivered as an escrow, had been offered as a ' witness for Goode, that the plaintiffs objected to his competency, that the court overruled the objection, and that he was examined in person. At the term next preceding that at which the third trial was had (when the cause was continued) the court said, that the counsel had better look to the question whether Harrison was a competent witness, before the then next term, intimating that Harrison might be made competent. But Goode and his counsel made affidavit, that they understood the doúbt suggested as to the competency of Harrison to refer to the fact of his being one of the obligees in the bond, not to any objection that could be removed by releases executed by Goode and Harrison to each other. At the third trial, the deposition of Harrison, which had been taken de bene esse, was offered in evidence for Goode. [This deposition *stated, that Harrison did not act, but declined to act, as one of the commissioners of the county court of Brunswick for the sale of the land of Raw-lings’s estate: that, wishing to purchase the land for the benefit of his children, he applied to Goode and to Jones (his wife’s brother) to purchase it for them; Goode, in the absence of Jones, consented to do so provided Jones would become jointly bound with him for the purchase money, and Jones, in Goode’s absence, consented; and this was made known to the commissioners on the day of sale: that the land was cried out at the sale upon Harrison’s bid, and bonds for the purchase money were prepared, to be executed by Goode and Jones: that Harrison presented the bonds to Goode for execution, who executed them upon the express condition that Jones also should execute them, which Harrison promised to have done, before delivery to the commissioners, (the bond on which this suit was brought was one of them) : that Harrison sometime afterwards delivered the bonds to one of the commissioners with a full communication of the condition on which Goode had executed them, the commissioner agreeing to procure the execution thereof by Jones; but he neglected it, and 'Jones died : that Harrison was to indemnify Goode and Jones, by paying the purchase money of the land himself, if he could, and in that case he was to have the property; if he could not make the payment, the land was to be made over to his wife and children, and to be held subject to the payment of the purchase money: and that Harrison put into Goode’s hands, a bond of one Devenport for 1000 dollars, which Goode was to collect, and apply towards the payment of the purchase money; this -was before Jones’s death, when Goode expected Jones to join him in the bonds for the purchase money; and the witness supposed Goode still held Devenport’s bond, or had collected it.] The plaintiffs’ counsel objected to the reading of this deposition of Harrison as evidence for Goode, the *court sustained the objection,* the evidence was excluded, and a verdict was rendered for the plaintiffs. The ground on which Goode, asked a new trial, was, that the exclusion of the evidence of Harrison as being a party interested in the cause, when it had been admitted on two former trials, and when it might have been obviated by mutual releases between Goode and Harrison,, if the ground of objection to Harrison’s competency had been'understood and anticipated, operated as a surprise upon Goode at the trial; and the court also viewing it in that light, set aside the verdict, and ordered a new trial; to which the plantiffs excepted.
    Before the fourth trial of the cause, Goode and Harrison executed mutual releases to each other, of all claims and responsibilities of either against or to the other, arising in any way out’ of the result of this suit, or of any other suit on the bonds of the same tenor taken for the purchase money of the land.
    Upon the fourth trial of the cause, the deposition of Harrison (which had been taken again) was offered in evidence for Goode, and the plaintiffs’ counsel objected to the admission of it on the ground that Harrison was interested and incompetent; but the court overruled the '^objection, and the deposition was read; to/which the plaintiffs’ counsel excepted. The bill of exceptions set forth the new deposition of Harrison, and the mutual releases of Goode and Harrison to each other. [The new deposition shewed the same facts stated in the former, and the following additional facts — that the land (the purchase money for which was the consideration of the bond on which the suit was brought) had been since sold by flar-rison to a new purchaser, with the knowledge of the commissioners who made the former sale and who were to convey the title to the purchaser, and with the knowledge also of Jackson for whose benefit this suit was brought, and who was the executor of Rawlings to whose estate the land belonged, and the agent of his widow and heirs or devisees; that Jackson declared himself perfectly satisfied with the new sale, of which he was to receive the proceeds, and told Goode that the affair was arranged, and he need not give himself any further trouble about it; and that, in consequence thereof, Goode gave Harrison a draft on Devenport for 400 dollars yet due of Devenport’s bond which Harrison had transferred to Goode for his indemnity, and declared his readiness to make a settlement with Harrison of that transaction.]
    The jury found a verdict for Goode; which the plaintiffs moved the court to set aside, and order a new trial; the court overruled the motion, and to that opinion the plaintiffs did not file exceptions. The court then gave judgment for Goode upon the verdict. And this court allowed the plaintiffs a supersedeas to the judgment.
    Macfarland and Rhodes, for the plaintiffs,
    I. submitted, that the court erred in setting aside the verdict rendered for the plaintiffs on the third trial, and granting a new trial, on the ground that Goode had been surprised by an opinion of the court on a point of law ruled at the trial; a kind of surprise which was no good ground *for disturbing the verdict; and besides, Goode, so far from being surprised, had been warned at the previous term, and would not take warning. And that the court erred too, in admitting Harrison’s deposition in evidence for Goode; for Harrison was the real purchaser of the land, though Goode gave his bond for the purchase money, and if Goode should be compelled to pay the debt, Harrison would be bound to repay the money to him; and Harrison was one of four plaintiffs on the record, who, if they succeeded, would be entitled to costs as well as to the debt, and Harrison would be bound to reimburse to Goode both debt and costs. The mutual release could not affect the costs, and did not extinguish the interest which Harrison had to protect Goode from the recovery of both debt and costs. II. They contended that the court erred in admitting Goode’s pleas: 1st, because (if for no other reason) they were, none of them, verified by his affidavit: they were special pleas of non est factum, 1 Chitt. Plead. 479, 2 Id. 463, pleas which the statute, 1 Rev. Code, ch. 128, % 33, p. 496, expressly provided should not be admitted unless the truth thereof be proved by the oath of the party. But 2ndly, they said, the pleas were in substance naught. The defence set up by them was, that the bond was signed and sealed by Goode, and by him delivered to Harrison, one of the obligees, as an escrow, upon condition that Jones should execute it as a joint co-obligor with Goode, otherwise it should be void as to Goode, and Jones having never executed it, therefore it was not Goode’s deed. Now, it could not be doubted, that a delivery of a bond to one of several obligees enured as a delivery to all; and the law was well settled, that a deed cannot be delivered to a party himself as an escrow; that if a man make and deliver his sealed instrument to the party to whom it is made as an escrow to be his deed upon certain conditions, this is an absolute delivery, and the conditions are nugatory. They cited and examined Shep. Touchs. *58, 9 Harg. Co. Litt. 36 a, note 3; Whiddon’s case, Cro. Eliz. 520; Hawksland v. Gatchell, Id. 835; Williams v. Green, Id. 884, S. C. Mo. 642; Blunden v. Wood, Cro. Jac. 85; Thoroughgood’s case, 9 Co. 137; Degory v. Roe, Mo. 300; S. C. 1 Leon. 152, and Johnson & others v. Baker, 4 Barn, & Aid. 440, 6 Eng. C. L. R. 479. The last case would probably be relied on as an authority for the defendant; but, they said, it was decided without a careful consideration of the authorities, and yet it would be found, on examination, not to contradict them. It was an action of covenant on a deed of composition between debtor and creditors, brought by creditors who executed it, on one of the covenants to them, against the surety for the payment of the composition; who pleaded, that the deed was delivered as an escrow, upon condition that it should not be delivered to the plaintiffs, but should be void, unless it should be executed by certain other creditors, but they never executed it, and so it was not his deed ; issue was joined on this plea; it appeared at the trial, that before the execution of the deed, it was agreed, in the presence of the surety who was to become bound for the payment of the composition, that it should be void unless all the creditors should execute it, and subsequently, though at the same interview, the surety executed the deed in the ordinary way without saying any thing at the precise time of the delivery; and the deed was delivered to one of the creditors, who was to get it executed by the others; and it was held, that the condition previously expressed, though not introduced into the act of delivery, was sufficient to make this a delivery of the' deed as an escrow, and as it appeared that this condition was not complied with, the plaintiffs were not entitled to recover. Now, they remarked, 1. that the question was not distinctly presented by the pleadings in that case, whether the plea was a good bar or not; the pleadings admitted that, if true, it was a bar: 2. that that deed *was not, like this, a plain deed of grant or obligation; it was a deed of mutual and dependant covenants; a deed of composition whereby payments were to be made to all creditors, each and all of whom were to covenant on their part to release their claims, and if any should not release, the whole purpose of the deed would be defeated: 3. each of the creditors as covenantees had several and distinct interests; they were not joint parties: and 4. it did not appear, that the deed was delivered to a party as an escrow; it was indeed delivered to one of the creditors; but he was not a party at the time of the delivery, unless he had then executed it, and it was not stated as part of the case that he had done so, and was a party. That case, therefore, not only stood alone, but it was not an authority in point to sustain the judgment in this case.
    Lyons and Stanard, for the defendant,
    answered, I. that the unexpected opinion of the court at the third trial upon the question of the admissibility of Harrison’s deposition, deprived Goode of that evidence, in itself conclusive of the truth of his plea, upon an objection which, if it had been anticipated, could easily have been obviated; and the final result of the case approved the justice of the court in setting aside the verdict rendered at the third trial. It was true the court had given an intimation of the objection to the competency of Harrison’s evidence; but it was not just to sa3' that Goode would not take the warning ; he did not understand it. Then, as to the question whether Harrison was a competent witness; if Harrison ever had any such interest in the cause as rendered him incompetent (which they denied), the deed of mutual release between him and Goode extinguished all and every interest he could have in the result of the controversy. Neither Harrison, nor the other nominal plaintiffs, had any interest in the costs; Jackson for whose benefit the suit was brought, not the plaintiffs in whose names he brought . it, and who had no ^interest in it, was entitled to costs if he recovered judgment, and responsible for costs if he was cast. II. The plea first pleaded was not, any more than the two additional pleas, verified by Goode’s affidavit; yet that plea was received without objection, the plaintiffs joined issue upon it, and two trials were had of that issue; and when the two additional pleas were offered, the plaintiffs did not object to them because they were not sworn to, but (as their bill of exceptions shewed) because they did not present a good bar. They never took exception to the pleas for want of the affidavit of the party in the court below, where the defect could, and doubtless would, have been supplied; in effect, they waived the objection there ; and it was too late now to make it here. Upon the merits, they maintained, that the pleas presented a good bar. The rule of law that a deed cannot be delivered as an escrow to the party to whom it is made, but only to a stranger to the contract — that if a deed be delivered to a party to whom it is made as an escrow to be good upon certain conditions or otherwise to be void, the conditions are nugatory, and the delivery absolute — had reference to deeds perfect and complete upon the face of them, and to deliveries thereof to a party or parties in interest entitled to the benefit. The rule was not, in its principle or its reason, at all applicable to a case like the present, of a bond which imported, upon its face, an incomplete contract when Goode parted with it, according to the intention of all parties, and required clearly, that it was to be completed by Jones’s execution of it as a joint obligor, and this bond, so incomplete and so afterwards to be completed, delivered, not to a party having any beneficial interest in it, but to one of four nominal obligees, all of whom were naked trustees for the benefit of others. They enforced this distinction with great earnestness, and examined the authorities to shew that it was just and even necessary. But taking the case in the point of view in which the ^plaintiffs’ counsel regarded it, they relied on the case of Johnson v. Baker as an authority directly in point for the defendant in this case: they said, it was even a stronger case than this. They then adverted to the difference between the two additional pleas. The first of them stated, that Harrison, to whom the bond was delivered as an escrow, was one of the obligees, but alleged that he was only a nominal obligee, for that he did not act as one of the commissioners who sold the land for the purchase money of which the bond was intended tobe taken ; he was not really an obligee even in trust for others; he was not, in truth, a party. But in the other additional plea, it is pleaded that the bond was delivered as an escrow to Harrison, without stating that he was one of the obligees; non constat from that plea, that the Harrison to whom the bond was delivered as an escrow, was the same Harrison who was named as one of the obligees. Issues were joined upon both the pleas ; the jury found for Goode upon both issues; and though the plaintiffs moved for a new trial, they took no exception to the opinion of the court overruling that motion. Upon the verdict on the last issue, Goode was entitled to judgment; and no exception being taken to the refusal of-the court to'set aside the verdict, as being contrary to evidence upon the last issue, this .court could not look into the evidence to see whether- or no the verdict was warranted by it; and if it could, yet seeing that substantial justice had been done, it would not disturb the verdict.
    
      
      Escrow — Delivery to Grantee — Deed Incomplete on Its Face. — The doctrine that a deed cannot be delivered to the grantee as an escrow is applicable only to the case of deeds which are, on their face, complete contracts, requiring nothing but delivery to make them perfect according to the intention of the parties ; and it is not applicable to deeds which, on their face, import that something more is to be done, besides delivery,' to make them complete and perfect contracts according to the intention of the parties. In support of this proposition, the principal case is cited in Tardy v. Shelby, 84 Ala. 327, 4 So. Rep. 278; American Button-Hole, etc., Co. v. Burlack, 35 W. Va. 654, 14 S. E. Rep. 321; Wendlinger v. Smith, 75 Va. 317; ward v. Churn, 18 Gratt. 807.
      The principal case is distinguished in Miller v. Fletcher, 27 Gratt. 407; Nash v. Fugate, 32 Gratt. 602, 603.
      In Lyttle v. Cozad, 21 W. Va. 200, the court said ; “There are also older cases in Virginia, in which the court held, that when an instrument was incomplete on its face and indicated that others were intended to sign it, it was not binding on those who did sign it, although the condition may not have been known to the obligee when it was delivered to him. See Ward v. Churn, 18 Gratt. 801, and Preston v. Hull, 23 Gratt. 600.”
      The principal case is cited in Ward v. Churn, 18 Gratt. 808, for the proposition that, where an instrument indicates on its face that others are to execute, besides those who did execute it, it may be shown by evidence that the delivery, though made to the grantee or obligee, was conditional upon the execution of the instrument by the other parties, and not absolute. See the principal case cited in Harris v. Harris, 23 Gratt. 779 ; Lyttle v. Cozad, 21 W. Va. 200; Baylor v. Dejarnette, 13 Gratt. 172; Mackey v. Mackey, 29 Gratt. 168.
      See foot-note to Miller v. Fletcher, 27 Gratt. 403.
      Same — Effect of Premature Delivery. — The principal case is cited in Humphreys v. Richmond, etc., R. R. Co., 88 Va. 454, 13 S. E. Rep. 985, to the point that a delivery of the deed by the depository of the escrow, before the conditions are performed, is null and void.
      See generally, monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564, and mono-graphic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   CABELL, J.

I am not .disposed to controvert the distinction between a deed delivered as an escrow to the -party to the deed, and one that is delivered to a stranger. While it is universally conceded, that where a deed is sealed and delivered to a stranger, as an escrow, until certain- conditions are performed, and then to be delivered to him to whom the deed is made, to take ' effect *as the deed of him who sealed it, such deed, even although the other party-get it into his'possession; is as inoperative, until the conditions are performed, as if it had never been delivered at all; yet it seems to be settled also, that if a deed be sealed and delivered to the party himself to whom- it is made, as an escrow, but to become the; deed of him who sealed it on certain conditions, -in -such case, let the form of the'words be what it may, the delivery is absolute, and the deed shall take effect presently as his deed, and the party is not bound-to perform the conditions. Co. Litt. 36 a. Shep. Touchs. 58, 9. The reason assigned-by Coke is, that “the delivery is sufficient without 'speaking of any words (otherwise a man that is - mute could not deliver a deed) and tradition is only requisite; and then'when the words are contrary to the act which is the- delivery, the words are-of none effect ;” for. “non quod dictum est, sed quod factum est, inspicitur. ’ ’ In the case of Williams v. Green, Cro. Eliz. 884, the reason assigned by1 the court is, that if it were allowed, “a bare averment, without any writing, would make void every deed.” As already observed, I shall not controvert the propriety of this distinction. But I must say, that the reasoning on which it is founded, is not only very technical, but it is unsatisfactory to my mind; for it is not every tradition, or passing of a deed from the hands of one to the hands of another, that will constitute a legal delivery of it as a deed. Something at least is due to the intention with which the tradition is made; and such intention, on such an occasion, is generally gathered from our words, rather than from our actions. Therefore, I am not disposed to carry' the doctrine farther than it has already'been carried by the adjudged cases.

I- have not observed a single case in which the doctrine has- been applied to any 'deed which was not, on its face, perfect and complete, requiring nothing to bé done to give it full efficacy as a deed according to the intention *of the parties, but the mere delivery -of it as a deed. This - is necessarily the -case, where the tradition is to the ■ party himself; for, in such case, the instrument becomes, by the mere tradition', ipso facto, the present deed of the party; which could not be, if the deed were not in itself perfect and complete as an instrument, according to the intention of the parties, as gathered from the instrument itself. All the cases will accordingly be found to relate to conditions extrinsic and dehors the deed. Let these principles be applied to this case.

The deed on which this suit is brought, commences, “We John C. Goode, and Benjamin B. Jones are held and. firmly bound &c. in the just and full sum &c. on or be-, fore &c. ” and concludes “ witness our hands and seals &c.” Then comes the signature of Goode, with a seal annexed; and under it, where the name of the other- obligor ought to be, there is a seal, but no signature: and it is attested “J. Rice, as. to J. C. Goode” — Can. any thing be more manifest, than that this deed was - not intended to be the several deed of Goode? Is i.t not clear, that it was not intended to be even his joint and several deed? It is purely and merely joint; importing a joint obligation with Jones — and this was the intention of all the parties to the deed; at the time Goode signed and sealed it. A thousand witnesses would not prove this more strongly, than it is proved by the form and tenor of the instrument itself. ■ This being the case, and. the deed having been made part of the declaration by the oyer craved of it, a question might be made whether Goode might not have successfully demurred to the declaration; or, if oyer had not been craved of the'deed, whether he might not have successfully opposed its introduction as evidence, as being variant from the deed described in the declaration, which pleads it as the several- obligation of Goode. The exigencies of this case do not require me, nor do I mean, to give any opinion on those points. But the question does arise, and I am ^obliged. to decide, whether the fact pleaded and proved by Goode, that the execution of the deed by Jones was to be the condition of its being obligatory on him, be one of those conditions-which the law will disregard, merely because of the tradition by him of the instrument, .in its present form, to one of the obligees? I am clearly of opinion, that it is not. The case does» not come within the reason of the rule. The fact alleged is not contrary to, but is consistent and conformable with the face of the instrument itself, and the act of the parties. Nor is there any of the danger relied on in the case in Croke, of defeating a solemn deed by mere averment; for, as just observed, the averment in this case is consistent with the deed itself. There is also another most remarkable feature in this case, which eminently distinguishes it from all others: the fact on which Goode relies, is not only consistent with the tenor of the deed itself, but is admitted, and even sworn to, by that one of the obligees to whom the delivery was made; who is also one of the plaintiffs in the cause, and who, notwithstanding, has become a voluntary witness • on the part of the defendant. • In such a case, it seems to be idle to talk of a rule, which is founded on» the danger of admitting parol averments repugnant to the acts of the parties. I think the -judgment must be affirmed.

BROOKE and STANARD, J., concurred.

ALLEN, J.

I concur in affirming- the

judgment, but not for the reason assigned. The second of the additional pleas alleges a delivery as an escrow to Harrison, without shewing that he was one of the obligees; to this plea there was a general replication, upon which issue was joined; and upon that issue, as well as on the others, there was a verdict for the defendant. The fact that Harrison was an obligee, came out in the evidence at the trial. But there was no exception to the refusal *"of the court to grant a new trial. And even if the evidence could be looked into, the same evidence which shewed that Harrison was an obligee, shewed also that the parties did not contemplate the delivery of the instrument as a deed. Under such circumstances, the court, in the proper exercise of its discretion, would have been justified in refusing a new trial. On this ground, I am for affirming the judgment.

Judgment affirmed. 
      
      The ground on wtilcli the court thought Harrison’s evidence incompetent, apparently was, that, as by the understanding between him and Goode, Harrison was to pay the purchase money if he could, and then to have the land: and as Harrison had transferred to Goode Devenport’s bond for 1000 dollars, of which Goode had collected part, to be applied to the payment of the purchase money; if Goode succeeded in his defence against the actions of the commissioners on the bonds, and was thereby exempted from the payment of the purchase mone;, he would be bound to return to Harrison Deven-port’s bond, and pay him the money he had collected upon it: and so Harrison had an interest in the success of Goode’s defence of this cause. On the other hand, if the plaintiffs recovered of Goode, and he paid the purchase money, he would have a right to the land: and then, Harrison would have a right, upon reimbursing the purchase money to Goode (part of which he had’ paid by the assignment of Devenport’s bond) to demand a. conveyance of the land by Goode to him; and Harrison would be accountable to Goode for the whole purchase money. — Note in Original Edition.
     