
    Evans vs. Gibbs.
    1. A party to a suit at common law cannot be a witness in the cause..
    2. To constitute an escrow, the party signing and sealing the instrument must make the delivery of it as his deed dependent upon th'e performance of a condition.
    Evans suedGibbs and Marr in covenant in the circuit court of Obion county. The declaration avers the execution of a writing obligatory by Marr and Gibbs to Evans for $2048.
    The defendant Gibbs pleaded covenant performed, and defendant Marr having craved oyer of the deed described in the plaintiff’s declaration, and set it forth, pleaded that “it was signed by him at the request of, and as the surety of, W. Gibbs, and he delivered the same to said Gibbs, who was to get the signature and seal of Joseph B. Dibrill, as a co-surety with the defendant, to be delivered to plaintiff, Evans, after the signature of said Evans was obtained, and that this was the only signing and delivery he ever made of said covenant, and that he delivered it to said Gibbs for no other purpose and upon no other condition.”
    This plea was verified by the affidavit of Marr.
    Issue was taken on the plea, and the case was tried by Judge Harris and a jury at the July term, 1845, The defendant Marr, having “executed a release to his co-defendant of his liability to him for costs,” offered said Gibbs as a witness in support of his plea. His testimony was objected to but the objection was overruled, and his testimony given to the jury; the substan.ee of which is set forth in the opinion of the court.
    The Judge charged the jury that the signing and sealing of a covenant was not sufficient. It must be delivered to give it effect. If a covenant is signed and sealed and delivered to an agent who is to hold it until Some other act is done, after which he is to deliver it to the covenantee, and he deliver it without the act being first done, or dispensed with by.the covenantor, such delivery is unauthorized and will not give effect to the covenant. In this case if he was induced to sign the instrument upon the assurance of Gibbs that it should be signed by Dibrill before it should be delivered to the plaintiff, and it was upon this understanding he signed, and the covenant was afterwards delivered to Evans without the.signature of Dibrill, and without Marr having dispensed with it, then Marr is not bound by it; but if Marr signed the covenant and delivered it to Gibbs without such understanding, he is bound by it.
    The jury rendered a verdict in favor of Márr and against Gibbs, and judgment was rendered up accordingly.
    The plaintiff Evans, appealed from the judgment discharging Marr.'
    
      Raines, for plaintiff.
    /. B. Williams, for defendant Marrl
    See 1 Cowen Phillip Ev; 77; 2 Phil. 144; 3 Phil. 1549.
   Reese, J.

delivered the. opinion of the court.

It appears from the record, that the defendant, Gibbs, was the principal in the bill single sued on, and that Marr was his surety. At the time of the signing and sealing of the bill by Marr, Gibbs, the principal, thought, that Marr manifested some hesitation and reluctance to sign and seal the same, upon which he observed to him, that he would also procure one Dibrill, his brother-in-law, who was worth some three thousand dollars, to execute the same; and if it came to the worst he had funds under his control or within his reach, to pay the bill. Marr executed the instrument. Dibrill not being at hand, Gibbs delivered the bill to the plaintiff. These facts are established by the testimony of Gibbs alone, the principal and a party upon the. record. Two questions have been made; First: If the above facts were proved by competent testimony, are they sufficient to make the bill as to Marr an escrow only? And, secondly: was Gibbs a competent witness? A§ to the first point, the sealing and signature of an instrument not being denied, it is incumbent on him who alleges it to.be an escrow merely, and not his deed, to prove affirmatively, not that the principal promised something further should be done, by way of inducement to his execution of the instrument, but that 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 facts in this record do not make out such a case; and in the second place, Gibbs was not a competent witness.. He was a principal in the bill and a party upon the record to the suit. It is believed that-no case can be found, where one in his situation has been in a court of common law, received as a witness without the consent of the opposite party. Some diversity of opinion has existed as well in the English courts, as in those of several of the States of this union, as to the reason and foundation of the rule, which excludes in'a court of common law, a party to the suit from being a witness in the cause, some placing it upon the ground of interest as to costs, and some upon the technical and abstract ground merely of being a party to the suit. See the cases collected, and referred to in the second edition of Cowen’s and Hill’s Phillips on Evidence, 2 vol. part 1st, page 134. The case of Anderson for Smith’s use vs. the administrator of Brodie, 7 Yer. 297, places our courts with those who enforce the rule of exclusion upon the technical and abstract ground-of being a party to the suit without reference to the ground of interest. But the witness in this case falls under either category of the rule, and should have been excluded.

The judgment must be reversed, the verdict be set aside, and the cause be remanded.  