
    JANUARY TERM, 1848.
    Richard W. Graves et al. vs. Tilghman M. Tucker, Governor of the State of Mississippi.
    To an action on a deed or bond, if it be plead that the instrument sued on ■was an escrow, the plea must aver upon what condition the deed or bond was executed ; such an averment is indispensable to the plea of an escrow.
    P. and B. and G, being sued as sureties on a bond executed by R. S. G. as principal, and them and M. and H. as sureties, payable to the state, conditioned for the faithful discharge by R, S. G. of his duties as state treasurer, plead that M. and H. had signed and sealed the bond as sureties, when it was presented to them; and they signed and sealed it likewise, as sureties, in the belief that the bond was the valid act of M. and H.; but that M. and H. had delivered the bond to R. S. G., the principal, to he binding on M. and H., on condition that W. H. and S. P. would also execute the same, and that W. H. and S. P. had not executed it, by which means M. and H. were not liable on the bond, wherefore P. and B. and G, were not liable, wherefore, &c.; held, that this plea was not the plea of an 'escrow.
    Nor did the plea aver any such fraud in the obtaining the instrument, as to render it void as to the defendants pleading it; the fraud was committed on the sureties by the principal, and not by the state ; and as the sureties trusted the principal, they must suffer the consequences.
    If a principal, in procuring one to become his surety, commits a fraud upon the surety, either in suppressing or misstating facts, and the creditor has no knowledge of and gives no assent to the fraud, the surety will be liable to the creditor.
    To an action on a bond against the sureties of the principal, two of the sureties plead that they had delivered the bond to the principal, as an escrow, to be obligatory on condition that two others should execute the same, who had never done so. It was proved that the principal stated to one of these sureties that the two others should sign it as co-sureties, to which the defendant replied, if they would execute the bond he would, and accordingly did so ; the cause, upon this pleading and proof, was submitted to a jury, who found against the sureties; held, that their verdict was in accordance with the law and evidence; the bond, under the pleading and proof, was not delivered as an escrow; to constitute an escrow the delivery must be to a stranger (not to one of the parties) to be held by him until certain conditions be performed, and then to be delivered to him to whom the deed is made, to take effect as his deed.
    Where in an action against the treasurer of the state for defalcation in his office, there was a verdict rendered by the jury on his official bond against him and his sureties for the amount shown to be due by him, and the bill of exceptions did not show what kind of funds were received by the treasurer, nor from what sources they were received, it was held that this court would not inquire into the question whether the funds were received by the treasurer in pursuance of law, or not.
    In error from the circuit court of Carroll county; Hon. Benjamin F. Carruthers, judge.
    Tilghman M. Tucker, governor of the state, and successor in office of Alexander G. McNutt, sued Richard S. Graves, Elijah Graves, James Bond, John Middleton, Yalentine Harman, Edward Williams, Thomas Hogg, William Perry, Henry P. Barnes, Mabin Barfield, and Richard W. Graves, upon their bond, in the penalty of eighty thousand dollars, dated November 20, A. D, 1841, conditioned as follows, viz.: “ The condition pf the above obligation is such, that whereas the above bound Richard S. Graves was, on the first and second days of November, 1841, duly elected by the qualified voters of the state of Mississippi, treasurer of said state of Mississippi, for the constitutional term of two years from the date of this bond and his oath of office hereon written; now, therefore, if the said Richard S. Graves shall, from time to time, and at all times, render a just and true account to the legislature of the state of Mississippi, when by them thereto required, of all moneys, securities, stock and other property of the said state which shall come to his hand, or be committed to his charge, and deliver the moneys, securities, stock and other property of the said state, in his hands, at the expiration of his term of office, together with all documents, instruments of writing, papers and books belonging to or for the use of said state, to his successor in office, and shall well and truly, honestly and faithfully, perform all the duties of his office, during his continuance therein, and shall answer for all unlawful appropriations, waste, embezzlement, or destruction of the said moneys, securities, stock, property, documents, instruments of writing, papers or books which shall be made, done or committed by him, or by any person or persons by him employed in said office, then this obligation to be void, otherwise to be and remain in full force and virtue.”
    The first breach assigned was, in substance, that on the 21st day of February, A. D. 1843, Richard S. Graves, in his official capacity, and by virtue of his office of treasurer, received and took into his possession certain moneys belonging to the state, to the amount of two hundred thousand dollars, for, and in the name and on the account of the state, and unlawfully appropriated and converted it to his own use.
    The second breach stated, in substance, that on the 25th day of February, A. D. 1843, Graves, in his official capacity, received and took into his possession, for, and in the name and on account of the state, other money belonging to the state, to wit, fifty thousand dollars, which was a special fund, belonging to the state, commonly called the three per cent, fund, which it was by law Graves’s duty, as treasurer, to reserve and keep for the use and benefit of the state, until otherwise directed by law, yet he did not so reserve and keep it, but fraudulently misapplied, and unlawfully appropriated it.
    The third breach was to the effect that, on the 25th day of February, A. D. 1843, Graves took into his possession, as treasurer, for, and in the name and on account of the state, two hundred thousand dollars of a special fund belonging to the state, commonly called the two per cent, fund, which was by law appropriated to the construction of a railroad from Brandon, in the state of Mississippi, to the eastern boundary of said state, in the direction, as near as might be, of the towns of Selma, Cahawba, and Montgomery, in the state of Alabama, and could not lawfully be applied to any other purpose, yet Graves unlawfully appropriated it to his own use.
    The fourth breach was that, as treasurer, Graves, on the 25th of February, 1843, received and took into his possession, for, and in the name and on account of the state, a large amount of valuable securities for the payment of money belonging to said state of Mississippi, to wit, the amount of one hundred and sixty-five thousand dollars, being treasury notes of the United States belonging to the state of Mississippi, received by Graves as treasurer, in payment of the first instalment of the two per cent, fund relinquished to the state by act of congress of September 4th, 1841, and accepted by act of the legislature of February 2Gth, 1842; which securities it was Graves’s duty to keep and preserve, for the use and benefit of the state, yet Graves, after receiving them, unlawfully and fraudulently appropriated them to his own use.
    The fifth breach was to the effect, that it was Graves’s duty, well and truly, honestly and faithfully, to discharge the duties of his office for the prescribed term; yet, on the day of March, 1843, he abandoned his office and fled to parts unknown, and has ever since neglected and refused to perform his duties.
    The sixth breach was, that it was unlawful for Graves to pay or receive money on account of the state, but on the warrant or certificate from the auditor of public accounts, yet Graves, on the 21st of February, 1843, received into the treasury of the state one hundred and sixty-five thousand dollars belonging to the state, without any warrant or certificate from the auditor, authorizing it.
    The seventh breach states that it was Graves’s duty, as treasurer, to furnish the auditor of public accounts monthly statements of the receipts in the treasury, &c., as required by law; yet Graves had wholly omitted to do so.
    The declaration was filed to the October term, 1843, and at the return term the defendant, Perry, plead, 1. That at the time of his, signing and sealing said bond he delivered the same to Richard S. Graves, the principal, as an escrow to be binding and obligatory on him (Perry) on the condition that two persons of solvency and wealth, sufficient to pay the full penalty, should sign, seal and deliver the same, besides those who had signed and sealed the same, and that those persons had not signed and sealed the bond, so the condition had not been performed.
    Tffat at the time he signed and sealed said writing, it was agreed and distinctly understood between this defendant and the said Richard S. Graves, that besides the persons who had signed and sealed said writing, two persons of wealth and ability sufficient to pay and discharge the penalty of said bond would sign, seal and deliver said writing as their deed, and would bind themselves to be liable to pay the same beforé recourse should be had against this defendant; and on this condition and by virtue of this agreement this defendant signed, and sealed said writing; and he further avers, that two blanks were left in said writing, which were to be filled with the names of those two persons above the signature of this defendant; and this defendant in fact says, that these persons never have signed or executed said writing, nor has any other person whatever, signed the same, who would be liable to pay and discharge the same before this defendant.
    These pleas were verified by oath.
    Thomas Hogg plead, that, at the time of signing and sealing said bond, he delivered the same to Richard S. Graves, to be held as escrow, and not to be binding on this defendant, but on condition that one Wilson Hemingway and Samuel Parker, should sign, seal and deliver the same as their proper act and deed; and that Hemingway and Parker, did not sign, seal and deliver, and have not signed, sealed and delivered the saíne as their proper act and deed; so that the condition remains wholly unperformed.
    This plea was also supported by affidavit.
    Valentine Harman plead a similar plea, except that he averred that Wilson Hemingway only was to sign the bond before it should be obligatory on him; he made affidavit to his plea.
    - John Middleton plead; 1. A similar plea to that of Hogg, that Hemingway and Parker were also to sign it before it should .be obligatory; and 2. That Hemingway, Parker and eighteen others were to sign it before he should be bound; and the bond was delivered to Graves on that condition. Middleton made oath to the truth of these pleas.
    Mabin Barfield plead and made oath to a similar plea, that he signed on condition, one-Meban and other substantial men were to sign the bond, who did not do so.
    Issues were taken to the country on these pleas. William Perry," H. P. Barnes, Mabin Barfield and Richard W. Graves, plead, “ that John Middleton and Thomas Hogg had signed and sealed the said bond before it was presented to these defendants to be signed and sealed by them, and these defendants aver, that they signed and sealed the same, in the belief that the said Middleton and Hogg had executed the same as their proper act and deed, and these defendants aver, and in fact say, that the said Middleton and Hogg had delivered the said pretended writing obligatory to Richard S. Graves, the principal, therein to be binding on the said Middleton and Hogg, but on condition that one Wilson Hemingway and Samuel Parker should sign, seal and deliver the said pretended writing obligatory, as their proper act and deed; and these defendants aver, that the said Wilson Hemingway and Samuel Parker did not, and have not executed the said pretended writing obligatory, as their proper act and deed, by means whereof the said Hogg and Middleton are not charged by the said pretended writing obligatory; wherefore these defendants say that the said pretended writing obligatory is not their deed; and of this they put themselves upon the country,” &c.
    This plea was sworn to, the counsel for the state demurred to it, and the court below sustained the demurrer.
    To the breach, averring the reception of the fifty thousand dollars of the three per cent, fund, the defendants replied that Graves, as treasurer, paid it out in cashing auditor’s warrants, duly drawn upon him as treasurer. To this plea, the state demurred, and the demurrer was sustained.
    Other pleas were filed to the various breaches set out in the declaration, denying the reception of the money by Graves as treasurer, as charged in the several breaches, denying his authority to receive the two and three per cent, funds, and averring that he never obtained authority from the governor to receive them; and averring payment of the sums charged to have been received. To the pleas alleging that Graves had no authority to receive the two per cent, fund, the state demurred, and the court below sustained the demurrer, and awarded respondeat ouster; under which order other pleas setting up payment were plead; and upon these and the other pleas issues were taken to the country.
    Under the decision of the court it is not deemed requisite to set out these pleadings at greater length.
    The cause was submitted at the October term, 1845, on the issues joined to a jury, the suit having been previously dismissed as to defendant Richard S. Graves, for want of service of process, and abated as to defendants Perry and Hogg, on the suggestion of their death; and the jury found against the other defendants in favor of the plaintiff, and assessed his damages at fifty-one. thousand, eight hundred and sixty-five dollars and forty-seven cents.
    Subsequently the defendant, John Middleton, moved for a new trial, because the jury found against the law and evidence on his special plea of non est factum ; the motion was overruled and a bill of exceptions sealed, which recites, that “ the said defendant excepts and tenders this his bill of exceptions, which embraces all the evidence which was submitted to the jury for their consideration under said special plea of non est factum. The plaintiff read in evidence the bond in the declaration described, and said John Middleton then called Washington Middleton, as his witness, who stated, that he was present when John Middleton signed the bond; that Richard S. Graves stated to said Middleton, that Samuel Parker and Wilson Hemingway would execute the bond as securities and other persons ; that said John Middleton replied that if the said Parker and Hemingway would execute the bond, he would; and he accordingly signed and sealed it.” This was the whole bill of exceptions.
    The defendants sued out this writ of error.
    
      Sheppard, for plaintiffs in error,
    contended,
    1. The covenants of the sureties are to be construed and determined by the provisions of the law, defining and fixing the duties of the treasurer.
    And to fix their liability for a waste or misapplication of a particular fund, it must clearly appear that, by law, such fund was intrusted to his keeping and custody, and that it was therefore his official duty to secure and account for it.
    The sureties may stand on the strict letter and fair intent of their contract and covenant, and their liability will not be extended beyond it. Miller v. Stewart, 9 Wheat. 680.
    2. The act of the legislature of 1842, accepting the relinquishment of the two per cent, fund, for the purposes expressed in the act of congress, by the 7th section, provides that the treasurer of this state, should draw on the treasurer of the United States, only for so much of this fund, as in the opinion of the governor should be required for the purposes of that act. Acts of Legislature of 1842, p. 122.
    That the intention is obvious from the provision of the seventh section, that the two per cent, fund should not be deposited in the treasury of the state, but that it should continue to remain in the treasury of the United States, until it should be required to meet such appropriations, as, from time to time, might be made by the legislature in executing and carrying into effect the purposes of the act of congress.
    
      That the act of 1842 does not dispense with the necessity of obtaining a receipt warrant, in drawing the fund under the requisition of the governor. It could not be dispensed with by implication, but only in express words. How. & Hutch. 272.
    That the legislature, by the act of 1842, imposing additional restrictions on the power of the treasurer, in obtaining a portion of the fund, most clearly manifested their intention, that under the general law, the treasurer should have no power to draw the whole fund.
    3. That, in case of doubt as to the intention of the law in construction of a statute, that construction should be adopted which would conform with the general policy of the law.
    That it is the obvious policy of the state, that ample security should be'given for the safe keeping of the public moneys, and for this purpose the penalty of the treasurer’s bond had been fixed at eighty thousand dollars, which was deemed sufficient, by the legislature, to secure the money then belonging to the state, and what might accrue from the ordinary sources of revenue. But the state acquired no title to the two per cent, fund, until the act of 1842 accepted the relinquishment made by the act of congress, and subsequent to the execution of Graves’s bond.
    It was, therefore, a matter of great interest to the state, that this fund should not be intrusted to the safe keeping of the treasurer, under the security of the bond which had been given, for this fund alone more than doubly exceeded the penalty of his bond. The state would have had no security for any amount beyond the penalty of the bond.
    4. If the safe keeping and disbursement of the fund did not constitute a part of the official duty of the officers, then the sureties are not responsible for the defalcation. Allison v. Farmers Bank, 6 Rand. 204.
    The third and fourth breaches are predicated on an alleged misapplication of the two per cent, fund; and the plea to these breaches alleged, that the treasurer had no power to receive it, and never obtained any requisition from the governor to obtain it. The court sustained a general demurrer to these pleas. The judgment, being against the views presented, was erroneous.
    
      5. The proof sustained the plea of escrow filed by John Middleton, and the court should have granted a new trial.
    The case of Pawling v. United States, 4 Cranch R. 219, is direct authority, sustaining this position.
    
      W. Yerger, on same side,
    contended,
    1. That that the court should have granted Middleton a new trial, as his proof established, that he delivered the bond as an escrow; for an escrow could be delivered to the principal obligor. 4 Cranch R. 219; 2 Leigh R. 157. And the condition upon which the bond was so delivered in this case, was a valid one. Sharp v. United States, 4 Watts, 21; Well v. Jones’s Executors, 1 North Car. Law R. 510; Leaf v. Gibbs, 19 Eng. Com. Law R. 475.
    2. That the plea of Barnes, Barfield and R. W. Graves was a good one. He relied on the same authorities.
    3. That the demurrer to the pleas charging the reception, without authority, by Graves, of the two and three per cent, funds, ought to have been overruled.
    4. That the plea, that Graves cashed the proceeds of the three per cent, fund for auditor’s warrants, was a good plea: for, even if he had no right to do so, it was damnum absque injuria, and the court ought to have overruled the demurrer to it.
    
      Freeman, attorney-general, for the defendant in error,
    contended,
    /1. A bond, executed with the usual formalities, may operate as a deed in presentí, although at the time of such execution it was expressly agreed that it should not take effect until a certain event had happened; and the intention of the parties at the time of execution, is a question of fact for the jury on the whole evidence. 9 Eng. Com. Law R., 2 B. & C. 82; 2 Harrison’s Digest, 2345, Escrow; Leaf v. Gibbs, 19 Eng. Com. Law R. 476. '
    2. It is for a jury to decide, whether a deed was ever delivered. Fisher v. Kean, 1 Watts, 278 ; 6 Serg. & Rawle, 208 — 314.
    3. A delivery of a deed must be considered absolute, unless stated to be an escrow. 2 U. S. Digest, 30, § 90; Currie v. Donald, 2 Wash. 48; Wheelright v. Wheelright, 2 Mass. 447; Hatch v. Hatch, 9 Mass. 307. j
    
    , 4. A deed actually delivered-by an agent to one for whom it is made, is no longer an escrow, though placed in the hands of such agent, under an agreement that it should be considered an escrow. Simonton’s Estate, 4 Watts, 180.
    5. A verdict will not be set aside as against evidence, when there has been evidence on both sides, and no rule of law violated, nor manifest injustice done, although there may appear to have been a preponderance of evidence against the verdict. Graham, 380 - 385, et seq. A new trial will not be granted when the presiding judge is satisfied with the verdict, although contrary to the weight of evidence. Graham, 405 - 408.
    6. Mr. Freeman replied at length to the ground assumed, that the treasurer had no right to receive the two per cent, fund, and insisted, that under the law and constitution, he had full power, and it was his duty to do so. He cited the acts of 1842, approved Feb. 26, § 1 and 4; How. & Hutch. 273, § 17.
    7. He also contended, that the cashing of the three per cent, fund by Graves, for auditor’s warrants, was a violation of the laws of the state, which specially appropriated that fund; and the demurrer was, therefore, properly sustained to the plea averring that defence.
    
      George S. Yerger, for plaintiffs in error,
    contended,
    1. That the plea of Barnes, Barfield and R. W. Graves, was a good one. No affidavit was required to the plea at all. It is not a plea of “non est factum,” but a special plea of fraud. The authorities show that Middleton was not bound. 4 Cranch R. 219; 3 Leigh, 157; 19 Comm. Law Reports, 475; 1 North Car. Law Rep. 510; 4 Watts R. 21.
    Fraud vitiates the instrument, so that it is, in fact, not the deed of the party, that is, fraud in the execution, not in the consideration ; and fraud in the execution may be given in evidence under non est factum. Whether there be fraud in the execution on consideration, our statute allows it. How. & Hutch. 589; 
      Van Valkenburgh v. Rouk, 12 John. R. 337; Dorr v. Mamie, 13 John. R. 430; Dale v. Roosevelt, 9 Cowen, 309; 6 Munford, 358; 4 Wendell, 473; 8 Cowen, 290; 5 Cowen, 506.
    But this is a special plea; the facts are set out which make it a fraud; it is, therefore, a special plea of fraud. And the rule is settled, that, whatever would be good under non est fac-tum, may be specially pleaded. 1 Harris & Gill, 324; 1 Met-calf’s Digest, 461, 696, et seq.
    2. The plea of non est factum, as to Middleton, was sustained by the evidence. 4 Cranch R. 219; 2 Leigh, 157; 19 Com. Law R. 475 ; 1 North Car. Law R. 510; 4 Watts, 21.
    3. The verdict is erroneous as to him, and being joint, must be set aside as to all. 18 Pickering, 418; Richard v. Walton, 12 John. 434; Holbrook v. Murray, 5 Wendell, 161; Hall v. Williams, 6 Pickering, 247; Arnold v. Sandford, 14 Johns. 424; 1 How. R. 333, 527; 2 lb. 786; Meigs’s R. 578.
    4. If a plea is demurred to, and demurrer sustained, and respondeat ouster awarded, after verdict the court will decide on the validity of the first plea. Ellis v. Martin, 2 S. & M. 187; Gwin v. M' Carroll, 1 S. & M. 351. If, therefore, any of the pleas to which demurrers were sustained were valid, the judgment must be reversed.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an action of debt on the official bond of Richard S. Graves, as the treasurer of the state, for the penal sum of eighty thousand dollars.

Two errors have been principally relied on in argument, to reverse the judgment of the court below.

The first is, that the demurrer to the plea of William Perry, H. P. Barnes, Mabin Barfield, and Richard W. Graves was improperly sustained. That plea states that John Middleton and Thomas Hogg had signed and sealed the pretended writing obligatory, before it was presented to them to be signed and sealed by them, and they aver that they signed and sealed the same, in the belief that the said Middleton and Hogg had executed the same as their proper act and deed, and they aver that said Middleton' and Hogg had delivered the ^said pretended writing obligatory, to Richard S. Graves, the principal therein, to be binding on the said Middleton and Hogg, but on condition that one Wilson Hemingway and Samuel Parker should sign, seal and deliver the said pretended writing obligatory, as their proper act and deed, and they aver that the said Hemingway and Parker did not, and have not executed the said writing obligatory, as their proper act and deed, by means whereof the said Hogg and Middleton are not charged by the said pretended writing obligatory, wherefore they, the said Perry, Barnes, Bar-field and Graves say, that the said pretended writing obligatory is not their deed, and of this they put themselves upon the country.”

This plea, in substance, alleges, that Middleton and Hogg had executed the bond as an escrow, that the other defendants had executed it under the belief that it was absolute, and that they, therefore, are not bound.

The plea amounts to a special non est factum, resting for its efficacy upon fraud, in the execution of the instrument. It is not a plea of an escrow, for it does not aver that they executed the bond upon any condition whatever. That averment is. indispensable «5'the plea of an escrow. Then is any such fraud averred in the obtaining of the instrument, as will render it void as to the defendants who rely on this plea. It does not allege that Richard S. Graves made any representation to them on the subject; his silence is the alleged ground of fraud. He did not communicate to them, that the signatures then attached to the bond, were placed there upon an unfulfilled condition. This is the ground of complaint. But if there were any fraud in this, Richard S. Graves, the principal obligor was the guilty agent, not the state of Mississippi. He was, by these defendants placed in a situation in which he practised a fraud upon the state, if they can be released. If the state is as blameless as they are, they must bear the burden, because they put it in the power of Graves to practise the fraud. They trusted most, and they must suffer most; they do not pretend that the officers of the state had any knowledge of the fraud complained of.

The law upon this subject is very plain. A late writer thus lays it down; “fraud by the creditor, in relation to the obligation of the surety, or by the debtor, with the knowledge or assent of the creditor, will discharge the surety from his liability.” Burge on Suretyship, 218. This principle has been recognized as sound law, in a recent English case, and the knowledge or assent of the creditor is the criterion for determining the liability of the surety. The court says, “the plaintiffs are not to be made responsible for the communication or want of communication between their debtor and the surety, unless they are shown to be agreeing to it.” If with the knowledge or assent of the creditor, any material part of the transaction is misrepresented to the surety, the security so given is void at law, on the ground of fraud.” Stone v. Compton, 35 Eng. Com. Law R. 64; S. C. 5 Bing. N. C. 142.

We think, therefore, there was no error in sustaining the demurrer to this plea; and that the plea interposed .no valid defence, without an averment, that the state had knowledge of, or consented to the fraud alleged to have been practised by the principal.

After the demurrer was sustained, the cause was submitted to the jury upon the issues joined, and a verdict rendered for the plaintiff for $51,865.47. The next error insisted on is, that the court refused to set aside this verdict, and grant a new trial.

Two of the defendants, Hogg and Middleton, had pleaded “that they had delivered the bond to Richard S. Graves, the principal obligor, as an escrow, to be binding and obligatory on condition that Wilson Hemingway and Samuel Parker should execute the same, and that said Hemingway and Parker had never executed it.” The only evidence on this subject was that of a witness, who stated, “ that he was present when the defendant Middleton signed the bond; that Richard S. Graves stated to said Middleton, that Samuel Parker and Wilson Hemingway would execute the bond as securities, and other persons; that said Middleton replied, that if said Parker and Hemingway would execute the bond, he would, and he accordingly signed and sealed it.” Middleton moved for a new trial, because the verdict was against the law and evidence, and the verdict and judgment being joint, if reversed as to him, must be reversed as to all.

On this part of the case, the only question is, whether the evidence establishes the delivery of the deed as an escrow., The law on this point is nowhere better laid down, than in Sheppard’s Touchstone, 58. He says, “ the delivery of a deed, as an escrow is said to be, where one doth make and seal a deed, and deliver it unto a stranger until certain conditions be performed, and then to be delivered to him to whom the deed is made, to take eifect as his deed. And so a man may deliver a deed, and such a delivery is good. But in this case two cautions must be heeded. 1. That the form of words used in the delivery of a deed in this manner be apt and proper. 2. That the deed be delivered to one that is a stranger to it, and not to the party himself to whom it is madefy' The author then goes on to set out the form of words, which must be used at the time of delivery, to prevent the operation of the deed as an absolute instrument. The other elementary writers adopt this doctrine without qualification. 4 Cruise Dig. 32; Comyn Dig. Fait. A. 3, notes; 2 Lomax Dig. 29. The decided cases, too, hold an uniform language on this subject; to make a deed an escrow, the delivery must be conditional. Jackson v. Catlin, 2 John. 258; Blume v. Bowman, 2 Iredell, 342; Evans v. Gibbs, 6 Humph. 407; 4 Watts, 181. There is a lucid exposition of the rule in the case cited from 6 Humphreys. “ The sealing and signature not being denied, it is incumbent on him who alleges it to be an escrow, to prove affirmatively, not that the principal promised something farther should be done, by way of inducement to his execution of the instrument, but that the performance of such further act was the condition upon which he was to become bound, or the instrument to be delivered as his act and deed.”

The cases cited for the plaintiffs in error do not hold a different doctrine; they relate to the application of the rule, not to the rule itself. Thus in King v. Smith, 2 Leigh, 157, “King signed the bonds and delivered them to the marshal, upon the express condition, that Waite should also sign them as surety, and if he refused to do so, that the bonds should not be obligatory on King.” The court held, that the condition made the instruments only escrows. In Sharp v. The United States, 4 Watts, 21, the defence was, that the act of congress recited in the bond, authorized the collector to take a bond with two or more sureties, and that a bond taken with but one surety was void.” The bond had the name of two sureties in the body, but was signed by only one. It was held, that the surety who signed had a right to believe that the bond would be taken in strict conformity with the law, and that the other party named, would also sign. His signature was conditional.” Whether that court drew the correct inference from the facts, is not the question; it recognized the rule of law, as hereinbefore stated. Of the same character is the case of Fitz v. Green, 3 Dev. 291, where a guardian was required to renew his bond, with two persons named as his sureties. One of them executed it and left it with the clerk. The court held that the bond had been delivered only as an escrow, and that the party had declared, through the mouth of the court, that the bond was not to be accepted, until the other had executed it. The case was decided on the ground that there was no evidence of a delivery. The case of Webb v. Jones, 1 Car. Law R. 510, is of the same nature. Leaf v. Gibbs, 19 Eng. Com. Law R. 475, was a case of fraud. The agent of the plaintiffs told the defendant, that his mother was to join in the note, and, therefore, said the court, “ the obtaining of his signature was a condition, which, if not performed, would justify the defendant in withdrawing.” It was left to the jury to say if the defendant had waived the objection. But this case falls within the rule laid down in Stone v. Compton, above cited, and is not applicable here, unless the representation had been made by the state, through its officers or agents.

These cases all show, that whether the deed were delivered upon a condition or not, is a question of fact, upon the determination of which depends the judgment. In this case, this question was submitted to the jury, without any instruction from the court. Their verdict, so far from being contrary to the law and the evidence, is, in our view, in accordance with both.

An ingenious argument has been made, to show that the funds received by the treasurer and not accounted for, were not received by him'in pursuance of law, and by virtue of his office of treasurer, and that his sureties are not, therefore, bound for the amount. It is a sufficient reply to this, to state, that the bill of exceptions does not contain any testimony on this point, nor show what kind of funds were received by the treasurer. In the absence of such proof, the verdict must be considered correct.

The judgment is affirmed.  