
    Johnson Hagood vs. John H. Harley.
    In debt on bond, a yerdict for defendant on the ground that the bond had not been accepted by the obligee, set aside as without evidence to sustain it.
    An instrument cannot be an escrow if delivered to the party himself — the delivery must be to a stranger.
    BEFORE GLOVER, J., AT BARNWELL, SPRING TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    “ There were three cases entitled as this is, which were heard together. They were actions of debt on three several bonds, dated the 1st of January, 1842, each in the penalty of four thousand dollars. William J. Harley, who had been appointed by the order of the Court of Equity the guardian of Capers, Meldrid and Emily Dewit, and the defendant, executed three bonds with the usual condition of guardianship bonds.
    “ A bill was exhibited in the Court of Equity by his wards against William J. Harley as their guardian, and the defendant as his surety, praying an account, and by a decretal order, dated February Term, 1854, William J. Harley was required to pay to Capers one thousand six hundred and fifty-three dollars and five cents, and to Meldrid and Emily, each, one thousand six hundred and eighty-one dollars and forty-six cents, with interest from the 15th February, 1854. The Chancellor presiding at February Term, 1854, ordered that actions should he instituted on these several bonds, each of which had three seals attached, but they were signed only by William J. Harley and the defendant. The grounds of appeal suggest the enquiry, whether the Commissioner accepted these bonds in obedience to the order appointing William J. Harley guardian, or were they delivered ?
    
      “ Tbe fact of delivery was submitted to tbe jury, and depended on tbe evidence of A. P. Aldricb, Esq., tbe late Commissioner in Equity.
    ' “ His habit was to take two sureties and to deliver letters of guardianship when tbe bonds were executed. Tbe letters directed to William J. Harley, dated 1st January, 1842, are now in tbe Commissioner’s office, and as be did not deliver them, be supposes that be did not receive or approve the bonds. He thinks that be stated to William J. Harley, but not to defendant, that be would require two sureties. While he acted as Commissioner, he took but one surety in cases of Dr. Ayer and Mrs. Crawley. In 1842, William J. Harley was regarded to be in very affluent circumstances, and the bond then was perfectly good. He received returns from William J. Harley, as guardian, after his appointment, for several years, and he reported him to the Court of Equity as an insolvent guardian in 1850. These bonds were recorded by his clerk, who was directed to record all papers in a certain desk. On the letters of guardianship ‘fees due’ were indorsed. James Aldrich, Esq., was a witness to the execution of the bonds and drew two of them; but he had no recollection of the circumstances attending the execution, nor of any conditions.
    “The attention of the jury was called to the circumstances that these bonds had been found in the Chancery and recorded; that the words ‘ fees due ’ were indorsed on the letters of guardianship; that William J. Harley made returns to A. P. Aid-rich, the Commissioner, to whom the bonds were drawn, and that he was reported to the court as an insolvent guardian by him; that a decree pro confesso-was ordered against William J. Harley on the bill exhibited against him by his wards, as their guardian, and that James Aldrich, who drew two of the bonds and witnessed the execution of all, recollected no conditions.
    “ The plaintiff had the benefit of the strong impression which this evidence made on the mind of the Circuit Judge; but whether the bonds were accepted by, or delivered to, the> Commissioner in Equity, was a question proper for the decision of the jury, who found for the defendant in each case.”
    The plaintiff appealed, and now moved for a new trial on the grounds:
    1. Because the Court of Equity having settled the questions of the fact of William J. Harley’s guardianship and the amount due by him as guardian, the defendant by whose suretyship he procured the appointment is as much liable as the said William J. Harley himself.
    2. Because there was no proof of any condition when the defendant signed the bond that he was not to be liable, except on a contingency not performed; and if the Commissioner did tell W. J. Harley, (of which there is no proof,) that he must give another security, the defendant, J. H. Harley was in no way a party thereto, and there was no proof that he was even present.
    3. Because had the Commissioner required W. J. Harley to give another “ security ” — intending not to accept his bond until he did so — the defendant was not affected thereby, it being (if it existed at all) a mere arrangement between William J. Harley and the Commissioner.
    4. Because, if the Commissioner did not approve the bonds at first (which he merely presumed he did not) he afterwards approved and accepted them by several distinct and unequivocal acts.
    5. Because there being not the slightest proof that there was any arrangement or agreement between the Commissioner and John H. Harley or between W. J. and John ,H. Harley, it is submitted that his Honor should have charged the jury that the plaintiff was entitled as a matter of law to recover.
    
      
      Owens, for appellant,
    cited 1 McC. Cb. 107; 3 McC. 382.
    
      Cfraham, Bellinger, contra,
    cited 11 Stat. 112, 358 ; 1 Mill, 456; 5 Rich. 171; 7 Rich. 217; 1 Crancb, 137.
   The opinion of the Court was delivered by

Whitner, J.

A settled purpose on the part of this Court in no way to invade the legitimate province of the jury, has created the only hesitation in sending this case back. We are constrained to say, after a eareful examination of the ca'se made in this brief, that a verdict for the defendant was not authorized by any just view suggested to our minds. To have reached a conclusion favorable to the defence was matter of inference, and yet, conceding every fact established by way of defence, the just inferences, it is confidently submitted, lead directly to a different result.

The action is on bond, the execution of which is uncontroverted. Its enforcement is resisted because it is alleged not to have been accepted, or to have been delivered as an escrow. It is in the hands of the obligor, where it was incontrovertibly placed by the parties executing, and at the time.

I have no disposition to press at this point of the case the legal question suggested as to the controlling effect of such delivery. It has not been debated, and consequently not fully considered. An escrow is defined to be a deed delivered to a third person to be the deed of the party on a future condition. It is to be delivered to a stranger, mentioning the condition, and has relation to the first delivery. Jac. Law Die. founded on 2 Roll. Ab. 25-6; Co. Lit. 31-36. In 4 Com. Dig. Tit. Fait, (deed) A. 5, if an obligation be made to A. and delivered to A. himself, as an escrow, to be his deed upon the performance of a condition, this is an absolute delivery, and the subsequent words are void and repugnant. Again, 13 Vin. Ab. Faits (deeds), M. 8, a difference was taken between delivery of a deed to a stranger or the party himself. It cannot be an escrow if delivered to the party himself.

In 6 Mod. 218, Holt, J. says, it is agreed by all that the deed cannot be an escrow to the party himself. In 2 Black. 307, and subsequent authorities, the same doctrines will be found.

The bonds were placed in the hands of the obligor, recorded in his office, the principal thereupon assumed the trust, and was received and treated henceforth as such. Assuredly that can be no hard measure of justice which shall require some proof of the fact affirmed by the defendant.

Neither the subscribing witness nor any other recollects any condition at the time of execution and delivery. It behooves the Court to look well to such a case, and at each step proceed with caution to attain a well-authorized conclusion. This, if a contract at all, is one of high import. Interests very peculiarly commended to the vigilance of judicial tribunals are involved. These should not be lightly jeopardied; certainly not by an unauthorized inference, capriciously interposed or hastily drawn. The officer to whom the Court in the first instance confided tlm due execution of this contract, and upon whom the law devolved very special responsibilities, is concerned. If these fail, sureties to a preceding trust may become implicated. It is true, these suggestions furnish any thing else than a consideration for placing responsibility on the wrong shoulders, yet they disclose the caution* required, least in the sequel there may be a gross and manifest injury, for which none may be held to respond. The primá faeies are against this defendant, and before these bonds are avoided the proof should be plenary.

A mere statement of the grounds on which the defence is rested, sufficiently discloses their inadequacy, without elaboration on my part. For instance, that the bonds when being prepared, had three seals, as though designed for three signatures — that it was the usual though not invariable habit of this officer to take two sureties — that he may have told the prinei pal, and perhaps did, that be would require two sureties, tbe fact, if even so, in no way brought home to this surety or the slightest proof that he in any way acted thereupon — that the letters of guardianship were still in the office, with an indorsement of “ fees due,” most likely left for present safe keeping, it may have been from mere neglect, or as a memorandum temporarily that the fees were at the time unpaid.

In the further ground that the order was to enter into bond with sureties to be approved by the Commissioner, there is just as little. The objection is specious, the reply doubtless would necessarily savor of the same quality. However safer the practice to require two or more sureties, we know of no law requiring it, and the result would be strange to avoid a contract such as this, at the instance of the party contracting, without the least indication that he was thereby moved to the act.

The motion for a new trial is granted.

O’Neale, Waedeaw, and Glover, JJ., concurred.

Motion granted.  