
    Smallwood versus Clark.
    THIS was an action of debt, brought on a promissory note under seal, and assigned to the plaintiff by the original payee ; upon the plea of ” general issue.” The defendant’s counsel offered to give in evidence, that the writing obligatory, was delivered as an escrow to a depositary, who delivered it over to the payee before the conditions of the deposit had been performed : but the presiding Judge at Newbern Superior Court, July term 1800, thinking such evidence inadmissible, a verdict was taken for the plaintiff, and the case sent up upon a motion for a new trial, to obtain the opinion of this court, upon the above question.
    
      That the deed was delivered as an escrow, may not be given in evidence under the general plea of non est factum to an indorsed bond.
    
      It was argued by Graham for the plaintiff, and Woods for the defendant.
    
      Woods. The question referred in this case for the consideration of the Court is, whether in an action upon a promissory note, under seal, the defendant may give evidence, upon the general issue, that the writing was delivered as an escrow to a depositary, who delivered it over to the payee before the conditions of the deposit were performed ? To prove that this special matter may be given in evidence upon the plea of non est factum, the following authorities are so fully in point as to admit of no shadow of doubt ; 2 Rolls’s Abr. 683. Gilb. treatise on the action of debt (bound with kis reports) 437, Gilb. L. E. 159. 168, Butler’s Nisi Prius. Tidd's practice of the king’s bench, 203. Nor have I seen a single authority, case, or dictum which, according to my ideas, contradicts, or in the least, questions any of them.
    It is indeed said in behalf of the plaintiff, that all refer to, and ultimately depend on that in 2 Rolle, of which the author himself, entertained a doubt ; but surely, it cannot be supposed, that such waiters as Gilbert, Buller and Tidd, should cite with approbation, and without any caution to the reader, any authority which was disputable. The manner in which they have stated the law, leaves no room to doubt of their opinion, that it was unquestionable ; and the high estimation, in which their works are held, forbids the supposition, that they were mistaken. Indeed the rule laid down in Whelpdale's case, 5 Rep, 119, goes much farther, and admits the defendant to give in evidence upon non est factum, special matter, which makes a deed void, after it has once had a legal existence ; whereas in our case the writing never became a deed at all.
    But it is objected, in behalf of the plaintiff, that all these authorities speak of a special non est factum which is not the general issue, but a special plea and this objection has been so much relied upon, and deemed of such importance in the case, that it becomes necessary to examine it fully ; to ascertain what kind of non est factum, is meant by these authorities, and whether the general issue, which is pleaded in our case, is not by fair intendment that plea.
    
      Rolle says it is non est factum, generally pleaded ; 2 Abr. 683 Gilb. L. E. 168, uses the very same words, and Buller and Tidd when they refer to the same passage must be supposed to mean the same thing.
    
      Lord Holt in Bushel and Pasmore, 6 Mod. 217, 218, says that " in all his time he never knew “ such a plea as that, viz, a special non est factum “ in case of escrow and that all these special non est factums, in case of escrow, erasure &c. are impertinent, for thereby the defendant brings all the proof upon himself ; whereas if he had pleaded non est factum generally, he “ would have turned the proof of whatever is neccessary to make it his deed, upon the plaintiff." This is said, by the plaintiff’s counsel, to be an obiter dictum, unworthy of regard. It is however the dictum of a great judge, and has never been questioned, although the case, in which it is found is very frequently quoted. And Gilb. L. E. 163, 164, assigns the reasons, why it was anciently deemed necessary, to plead special non est factums, viz, to prevent surprise at the trial, and because they usually contained matter of law, of which, the Court ought to judge, but adds “ at this day, the “ law is otherwise.” Again, all the authorities say, the special matter may be given in evidence. This necessarily excludes the idea of a special plea which it is contended, in behalf of the plaintiff, a special non est factum is.
    A fact is pleaded, when it is specially alledged in the plea, and offered to the Court. It is gives in evidence, when, without being alledged in the plea, it is offered to the jury as proof of some other allegation, and in legal phrase, no two things are more distinct, than the pleading of matter specially, and the giving of it in evidence. Can it then be conceived, that these writers, when they say that the special matter in question may be given in evidence, mean only, that it maybe specially pleaded ? This would be absurd. And to maintain that it is necessary at this day, to plead a special non est faction (that is, in the sense of the objection, a special plea) in case of escrow, is to pronounce Lord Holt both ignorant and rash, and to impure to Gilbert, Buller, and Tidd, a loose, unintelligible jargon. But it is said, in behalf of the plaintiff, that all the precedents to be found in books of entries, and cases of reports on the subject of escrow, are precedents and cases of special non est factum. How, it is asked, does it happen, that there is no case, nor precedent to be found, of a general one on that subject ? To this, I answer, that with regard to precedents in books of entries, they must necessarily be of special non est factum ; for a general one, in case of escrow, is not distinguishable from a general one, in any other case. There are no precedents of non est factum peculiar to the cases of erafure, interlineation, and false reading of a deed ; and yet, these are cases which must have frequently happened. The reason must be, that such special matters have been given in evidence, upon a general one. The same observation applies with force, in regard to reported cases ; the questions in those cases, have been such, as could arise only, in special non est factums. In general cases, none could arise, except with respect to evidence ; and upon a point so simple and unfrequent, as whether a deed was delivered as an escrow, or not, it is not remarkable that few cases should occur, worthy of the notice of a reporter. As few will probably be found, of interlineation or false reading of a deed, and yet it will not, I presume, be thence interred, that such matters may not be given in evidence on a general non est factum.
    
    But admitting, for the sake of argument that all the foregoing authorities, contrary to the express words of some of them, speak of a special non est factum, I must still be permitted to contend that such plea may be considered the general issue, which we have pleaded.
    All the authorities say, that a special non est factum in case of escrow, may conclude to the country, and some of them say, it must. In Watts and Rosewell, 1 Salk. 274, such plea was held ill, because it did not conclude to the country, The cases in T. Raym. 179 and 6 Mod. 217, both conclude in that way. And Gilbert L. E. 164, says the general way is to conclude to the country, but it is apprehended not to be vicious to conclude with a verification. It is presumed to be a general rule in pleading, deducible from reason and authorities, that a plea which concludes to the country is a general issue. A plea which denies the whole declaration, is called a general issue, because it amounts at once to an issue ; 3 Bl. Com. 305. Where the whole contents of a plea are denied, the conclusion must be to the country ; but a particular fact only, it must be to the Court. 1 Bur. 319. Doug. 429. non est factum is a plea which denies the whole declaration and is therefore a general issue, 3 Bl. Com. 305. If it be a special one, it concludes with the same denial and for that reason ought to conclude to the country ; fee the reason urged in Watts and Rosewell, 1 Salk. 274 : with such conclusions it amounts to an issue. It is, then, a general issue. If therefore, a special non est factum may be considered a general issue, as well as a special plea, it would be contrary to reason and the spirit of modern practice, to consider it a special plea for the purpose of excluding evidence. General pleading is at this day much favoured ; 3 Bl. Com. 305. 6 : and that strictness which was formerly required or indulged under pretence of preventing surprize is justly considered discreditable to the Profession.
    
      Graham.
    
    The books relied on as authorities for the defendant are 2 Rolle, 683, Gilb. L. E. 159, 168, Gilb. Rep. 437, 6 Mod. 218, Bull. 172, Tidd’s pract. 203. The passage found in Rolle, is there given on the authority of one of the Year Books, 9 H. 6. 38, and it must be admitted, would be of great weight towards deciding the question, were not the expression of doubt that accompanies it, not less strong than the passage ; and could it not be shewn, that the law is not so, by more modern authorities, aud an uniform practice to the contrary. Whether the quoere annexed to this passage, be found in the Year Book, or be the suggestion of Rolle, cannot be a material circumstance ; in either case it shews that the law was not then settled, at least ; and if Rolle adds the quære, it will follow, that his opinion, and the practice of his day, were at variance with the Year Book. Gilbert's law of evidence, and his treatise on debt, in the pages refered to, also give support to the opinion, that escrow may be given in evidence on a general non est factum. But we are referred to the single case in Rolle, just examined, for the authority on which his lordship had formed this opinion : the naked dictum of his lordship would have been more respectable ; resting on the authority in Rolle, which concludes nothing, it certainly derives no additional force, from it’s transposition into Baron Gilbert’s treatise.
    But it is said, the defendant has on his side also, the opinion of Judge Holt, a great and respectable name among the profession of the Law ; and for this we are referred to 6 Mod. 218, and it is true, that this great lawyer does contrive, or is made, rather out of place, it will be allowed, to say, obiter, that these special non est factums, in cases of rasure and escrow &c. are “ impertinent." But when it is considered, that the case before the Judge was a case of an escrow, the plea a special non est factum, and no question whether escrow might not be given in evidence on a general non est factum, made or argued ; this expression, far from deciding the point, will only excite our surprise, at its irrelevancy to the business in hand ; or at most, is only to be considered, a mere obiter dictum.
    It is always understood that these accidental expressions of even the most learned and experienced judges, on points of this nature, not under the consideration of the court, and without any previous investigation, are not to be regarded as authorities, as well, in justice to the judges, as from the danger of admitting them. The judge himself attaches no consequence to them, and on a flight examination, often changes his opinion ; the reporter too, having his attention occupied, by the principal question, is very liable to error on collateral points. It is worthy of remark, that wherever this opinion, as ascribed to Judge Holt, is noticed by subsequent writers, it excites surprise, and its correctness is questioned. 4 Bac. Abr. pleas and pleadings, 62. Perhaps, it this had been the point submitted, his lordship would have made up a different opinion. Neither Buller nor Tidd make any distinction between a general and special non est factum. They, as well as many others, seem to consider both as one plea, in contradistinction to all special pleas in bar, in the action of debt : thus, they say rasure, coverture, escrow &c. may : be given in evidence on the general issue, non est factum ; but per duress, per minas, release &c., must be specially pleaded. When, under the first branch, you examine the cases referred to, as Sir T. Raym. 197, and 6 Mod. 218, they are cases of escrow, and the pleas are special non est factums so that the only meaning they can be supposed to have, is, that you need not plead escrow, as specially as you must per duress &c., but you may take advantage of it on a non est factum, that is, a special non est factum, which concludes to the country, and not with a paratus est verificare, as do these special pleas. It may, therefore, fairly be presumed, that Baron Gilbert has mistaken the true import of earlier writers, and given to them a latitude of construction, beyond what they intended. It is concluded therefore by the plaintiff, that there is no good foundation to say, that under a general non est factum, delivered as an escrow may be given in evidence.
    In order to prove, that a special non est factum must be pleaded, it is remarked, in the first place, that to alledge the special matter relied on is most consonant to the principle of pleading, which is every where avowed, that the Court and adverse party should be fairly apprized of the nature and circumstances of the defence ; which can be done only by setting forth the particular facts ; thus, surprise is avoided, and the parties come prepared to try the true question. If this principle has force in regulating the pleading, in the British courts, it becomes much stronger in its application to the mode of pleading, in our own courts. With us, the name or names only, of the pleas are entered on the docket : whereby the hazard of being entangled in special, or general demurrers from the nicety required in pleas drawn at full length, is avoided ; which was the only evil intended to be remedied by the relaxation of the rule which required all special matter to be specially pleaded.
    It is contended, secondly, on the ground of express authority, that escrow must be pleaded by a special non est factum ; and the cases that are deemed such authorities are Com. Dig. pleader (2 W. 18) 643, throughout." Non est factum is a good “ plea, when the bond or specialty was not executed, but if it was, but was void ab initio for other cause, such as escrow, among others, a special " non est factum may be pleaded : so is Morg. vad. mec. 221. 222, Espinasse, debt, 149, and the authorities there refered to, Co. Litt. 56, a, 1 Vent. 9, 2 Vent. 10. 1 Salk. 274, 6 Mod. 218, Sir T. Raym. 197. Morg. Ess. 299, 4 Bac. pleader 62, Lill. Ent. 187, 184, and other modern entries, generally. From an examination of these cases and entries, this fact will appear, that escrow has, without exception in earlier, as well as later times, been pleaded under a special non est factum ; and this conviction will result; that it has been the opinion of the ablest judges, pleaders and practitioners, that it is the only safe and proper plea.
    It is conceived, thirdly, that this conclusion may also be established by reasoning from the practice, to the law ; the pleadings in cases are said to be pretty certain indexes to the law. If it be found that in all cases of escrow, whether of ancient or modern date, the plea is a special non est factum, especially, if no one can be shewn, where it was offered in evidence on a general non est factum, the conclusion is logical, natural, and strong, that a special non est factum is the plea required by law. All the reporters abound in cases of escrow all under the plea of special non est factum ; a solitary case of escrow, when a general non est factum was pleaded, the plaintiff’s counsel, after a laborious search, has not been able to find, nor has the defendant’s counsel pretended to produce one. If it were thought consistent with the law, would not counsel rather surprise his adversary with a special defence, under the general isue, than to furnish a plea which states explicitly the circumstances on which he rests his defence ; which requires more labor and more skill, to place it beyond exception ; and which assumes upon itself, the onus probandi ? The special non est factum, adapted to the case of an escrow, being carefully inserted in the entry books of pleading, another circumstance, from which to infer, it is considered to be a necessary plea.
   Hall, J.

I think it would be improper under the circumstance of this cause for the defendant to give evidence of the fact which he has suggested under the general plea which he has pleaded.

Taylor, J.

It is the common, and I believe, the universally received opinion of the Profession, that where the general, issue is pleaded to a sealed instrument without a subscribing witness, proof of the obligor’s hand-writing is sufficient to maintain the action. A witness who was present at the delivery, and is able to shew, that it was absolute and unconditional, is not required in such a case ; for, from the signature being proved, the jury will presume a sealing and lawful delivery. It would, therefore, produce much inconvenience, if, by allowing the defendant to give delivery as an escrow in evidence, the plaintiff’s action were defeated, when, perhaps, had he been apprised of the defence, he might have adduced evidence to prove a performance of the conditions. But the application of such a doctrine to the case of an assignee, would be replete with injustice, and would impose upon him such trouble and difficulty, as might materially contribute to impede the circulation of these instruments. The obligee being privy to the original contract, may be supposed to understand the terms upon which it was made, and to be ready to vindicate his right to a recovery, whenever the particular objection shall he made known to him. To him, the depositary of the writing is known ; the precise terms upon which the first delivery, was made, he must also be acquainted with, and how far they have been executed on his part. But the assignee, taking the bond upon the credit of the obligor and obligee, and of the various indorsers whose names it may bear, is probably ignorant of the circumstances of the contract ; and least of all, will he think it necessary to provide other proof to resist the general issue, than that of the hand-writing of the obligor and of the first indorser. It does, therefore, appear to me reasonable as well as just, that the plaintiff should have notice of this defence by an entry on the docket, so that he might have enquired, into the truth of it, and prepared himself either to resist or yield, as the truth should warrant. And the remark of the plaintiff’s counsel has great weight with me, that the simplicity of our mode of practice, which requires only an entry upon the docket, of the defence relied upon, while it preserves what is valuable in special pleading, does effectually guard against the evils for which it has been justly reprobated. If therefore the rule of law should appear, upon an examination of the books, to be, that upon the general issue of non est factum, delivered as an escrow may be given in evidence, it should be observed, that the application of the rule to the case of an assignee could never have been contemplated, since sealed instruments were nor made negotiable in this state until 1786 ; and whatever may be the reason and justice of the rule as between the parties, it seems plain that when a bond goes into a course of circulation, the reason ceases. It is very certain that the authorities upon this subject do not all concur, and it is difficult amidst the conficting opinions of learned men, to pronounce with certainty, how the law is at present understood. But if an investigation of judicial decisions produces doubt instead of conviction, it is allowable to take into view considerations from inconvenience, and under that impression, I have made these preliminary remarks.

There are several cases of an early date which seem to shew that a special non est factum was the customary defence in all cases of escrow, and even the reported cases of a later period serre to create doubt rather respecting the proper conclusion of such a plea, than as to the propriety of the plea itself. The following cases are stated in Vin. Abr. Tit. Fait. 18 Ed. 3. 3. 29. Debt upon an obligation : the defendant said that he delivered it to J. S. as an escrow, upon certain conditions, to be performed, to deliver the plaintiff as his deed ; and said the conditions were not performed and so not his deed : this is no plea, because he does not confess any delivery to the plaintiff, by which he shall say that the said J. S. delivered the obligation to the plaintiff and so non est factum, and well, because otherwise nothing shall be entered but non est factum generally. The plea was held to be defective in this case, because it omitted to state a delivery of the deed from J. S. to the plaintiff. Had this fact been stated, it is admitted that the special non est factum would have been good.

9. Hen. 6. 37. If a man seals a deed and delivers it to a third person to keep till a certain condition be performed, and then to deliver it to the obligee, and an action is brought, the defendant may plead this matter, and conclude so not his deed, because it never was delivered as a deed.

19 Hen. 6. 38, and 10 Hen 6. 25. 26. If a man deliver an obligation to J. S. upon certain conditions, to be performed, to deliver to the obligee as a deed, and if not to keep as an escrow. If the obligee get it contrary to the condition and brings debt, the other cannot shew this matter and conclude so non est factum, for it was an escrow and never a deed.

The last case furnishes an example where escrow pleaded with a verification, as a special plea, was excepted to and overruled, on that ground ; it being held that such a plea should conclude with tendering an issue, The same point arises in Watts versus Rosewell, 1 Salk. 274, where judgment was rendered against a special non est factum, because it did not follow the precedents of such pleas in concluding to the country ; and although in the case of Bushel versus Pasmore, cited from 6 Mod. the special non est factum did conclude to the country, notwithstanding which, pleas of that kind were disapproved of by Lord Holt, yet the reason he gives is not quite satisfactory at present, however forcible it might have been at that time. That case was decided in 3 Anne, before the passing of the Act for amendment of the law which permitted defendants with leave of the court to enter several pleas. When a defendant was confined to one peremptory plea, it was a material advantage to him that it should be of that kind, which would place the burthen of proof upon the plaintiff.

But now that several pleas may be entered, one which shall compel the plaintiff to prove his case, and another which shall apprise him of the objections intended to be made against his recover, justice is more likely to be attained by a reliance on both than by the omission of either. Consider the case even before the statute of Anne ; it strikes me that a general non est factum would afford but a very limited and partial security to defendants, whose deeds were delivered as escrows. If there were a subscribing witness and he alive at the time of trial, then indeed the plaintiff being bound to prove by him an actual delivery, so as to make it the defendant’s deed, must submit to the consequence of such evidence as the witness shall give, and in the case of a real escrow would be prevented from recovering. There, it may be said that a general non est factum is most beneficial to the defendant, and that as he had the liberty of entering but one plea, it would have been wrong to have selected that which should have placed the burthen of proof upon himself, when by pleading another, he might have placed it on the plaintiff. But if the deed had no subscribing witness, or the witness were dead, would a defendant choose to trust his case upon a general non est factum ? The plaintiff, would recover from the presumption of delivery arising from the proof of hand writing and the possession of the instrument. unless the defendant should adduce proof that it was delivered as an escrow ; and it the same necessity of bringing forward evidence to proven his case, existed, whether he pleaded a general or special non est factum, then, as to him, it is not impertinent to plead the special one, which in the view of justice ought to be preferred, because it informs the plaintiff what the point is, which is meant to be disputed. Razare may be given in evidence on a general non est factum, and as that is a fact which appears upon the face of the bond, rendering it absolutely void, there is no occassion to give the plaintiff other notice, because he could not by any proof restove its validity. But in the case of escrow, the deed has been seale and delivered by the defendant, conditionally it is true but whether the condition be of such a nature as to form an escrow in point of law, may be a question or sufficient importance in some cases to be submitted to the Court in the first instance, and as the allegation arises, from circumstances which cannot be collected from a view of the instrument itself and which may or may not render it void eventually accordingly as they are valid in point of law, or true in the point of fact, there seems to be sufficient reason why the defence should be shaped as a special non est factum. Reasoning of this kind was anciently thought so just and forcible as to confirm the propriety of making all objections to a deed, which arose from matter dehors, by means of a special non est factum, whether of coverture, or because the party had no right to the thing transferred, or of rizure, interlincation or addition ; all those defences must have been specially pleaded, that the plaintiff might come prepared to falsity the evidence.

The Special conclusion with an issint non est was referred to the Court for another reason viz, that they might decide in the first instance, what they might afterwards be called upon to decide upon a demurrer to evidence, or a special verdict. But at this day, says Baron Gilbert, the law is otherwise, and if a man pleads “ delivered “ as an escrow and concludes specially issint non est " factum, the general way is to put it to the jury, " because it is in effect to say there was no deed “ at all, but they may put it to the Court by an " hoc paratus est verificare, because the Court “ will judge whether he exhibited such matter as will make the deed of no effect at all &c." From this extract it appears to have been the opinion of the writer that a special non est factum is proper in the case of an escrow ; but that the better way of concluding such a plea is to the country. The opinion of Morgan cited by the plaintiff’s counsel, as to the propriety of such a plea, though he differs as to the conclusion, is I think of great weight inasmuch as he is a special pleader of eminence, and conversant in the modern practice of the courts. To this may also be added the case of Collins versus Blantern, 2 Wils. 347, where the general principle is recognized that if a bond be void in law, the facts which make it so may he averred and specially pleaded, and that the proper conclusion of such plea is with a verification.

Taking into view all the foregoing considerations. I think the present case is one, where the Court may and ought to require some notice of the defence relied upon, to be given to the plaintiff.

Judgment for the plaintiff.  