#### JOHN C. BLUME *vs.*ANDREW BOWMAN & AL.

A bond cannot be delivered to the obligee as an escrow, for such a de» livery would makc-it-absolute at law; but it maybe delivered by the ' sureties to the principal obligor as an escrow.

Where á bond has no subscrib'ng witness, then the proof of the p'osses- ■ sion by the obligee, and of the'hand-writing of the obligors, is' a sufficient ground for presuming that the bond was sealed and-delivered by the obligors.

The bare circumstance, that the name of a person, who did not execute the bond, is inserted in the body of it as one of the obligors, is not *of Use/*evidence to shew that those, who did sign and seal and deliver it, delivered it only as an escrow, upon condition that that person should also execute it.

Appeal from íhe Superior Court of Law of Stokes county, at the Spring Term, 1842, his Honor Judge Dick presiding.

The action was an action of debt, brought by the plaintiff-, as clerk and máster, on a penal bond'for five thousand dollars, alleged to have been executed by Andrew Bowman and others, of which the following is a copy.-

“Know all men by these presents, that we, Willis Pilking-ton, Ryland Roberts and James Martin, Jun., A. 11. Ruffin, William Barr, Andrew Bowman, Isaac Nelson, Joseph. W. Winston and Jacob Salmons acknowledge ourselves held and firmly bound unto John C. Blume, clerk and master in Equity for the county of Stokes, and his successors in office, in the sum of five thousand dollars, to the which payment well and truly to be made and done, we bind.ourselves, our heirs, executors and administrators, jointly *and severally,*unto the said John Blume, clerk and master in Equity, and his successors in office, firmly by these presents, sealed with our seals, and dated this 15th of November, 1820. The condi-*339lion of the above obligation is such, for that whereas one William Buford has commenced a suit in the Court of Equity for the county of Stokes, against the above bounden Willis Pilkington and Ryland Roberts, which suit is now pending: Now, in case the above bounden Willis Pilkington and Ryland Roberts shall well and. truly abide by and perform such order and decree as shall be made in said case, fully to all intents and purposes, then the above obligation to be void — otherwise to remain in full force and virtue — day and year first above written.

WILLIAM PILKINGTON, (Seal.)

RYLAND ROBERTS, (Seal.)

WILLIAM BARR, (Seal.)

J. NELSON, (Seal.)

A. R. RUFFIN, (Seal.)

ANDREW BOWMAN, (Seal.)

JOS. W. WINSTON, (Seal.)

JACOB SALMONS, (Seal.)-

(Seal.)

Signed, sealed &c, (Seal.)

in presence of (Seal.)”

The breach assigned was the failure to abide by and perform the final decree made by the Supreme Court, at June Term, 1837, in the suit mentioned in the bond. The de-fence relied upon was, that the bond was delivered as an escrow. Tire plaintiff, .to shew the execution of the bond, proved the hand-writing of those, whoso names appeared to be subscribed to it. Upon his cross examination, the witness also proved that the name “James Martin,” interlined in the face of the bond, was in the proper hand-writing oí the said James Martin, but that his signature was not attached to the instrument as an obligor. The plaintiff, further to prove the delivery of the bond, called upon *Emanuel*Shober, who testified that, in the year 1820, and since that time, he, as deputy, has transacted the business of the clerk and master of Stokes county; that after the Fall Term of the Superior Court of Stokes, in 1820, he was absent some weeks as a member of the Legislature; that before he left,' he drew the *340instrument in controversy, leaving blanks to be filled up, an<^ handed it to Ryland Roberts to have it executed: that shortly after his return home, the plaintiff handed him the same instrutment, in its present form, to be filed among the records in the suit — that he accordingly filed it, and it remained on file among the records of the court, until Fall Term, 1828, when it was transferred with the original papers in the case to the Supreme Court for hearing — and that he did not see the same afterwards, until it was put in suit. The defendants then offered additional evidence to prove that the words “James Marlin" in the face of the bond were in Lis own hand-writing, and that he had not signed the bond as .obligor — that James Martin was a practising solicitor in the Court of Equity of Stokes county, and was one of the solicitors, who defended the suit in behalf of Pilkington .and Roberts. The defendants insisted that the instrument declared on was not the act and deed of the defendants, as it^vas jnchoate and never delivered, which appears, not only from James Martin’s failing to sign the bond as an obli-gor, but because the elapse f‘ *his testibus”*shews it was their intention to have it witnessed. The plaintiff insisted that the evidence offered proved a delivery; that the signing of the bond by the obligors, and returning the same either to Roberts or the plaintiff, and the approval of the same by an order of court in the suit, was a delivery in law, which precluded them from denying a delivery, and the plaintiff’s counsel requested the court so to instruct the jury, which instructions the court refused to give. His Honor instructed the jury, that delivery was essential to the valid execution of the bond; that delivery was purely a question of fact for ¡their decision; and they must be satisfied that the defendants intended, when they put their names to the instrument, that it should become their act and deed, and that the order of the court; approving and accepting the instrument, did not preclude them from shewing that there was no delivery. His Honor further instructed the jury, that, if they should find the fact to be, that, when the defendants signed the bond, .they were induced to do so because the name of James Martin was written in the face of the hoqd, and they signed-*341the same upon the understanding that he was also to sign and be jointly bound with them, a delivery of the deed to Roberts or any other person for the plaintiff, without their consent, was not a legal delivery; that there was no evidence on this point, except that the name of James Martin, in t)ie face of the bond, was in his own proper hand-writing.

The jury returned a verdict for the defendants, and, after the refusal of a motion for a new trial, judgment having been rendered according to the verdict, the plaintiff appealed to the Supreme Court.

*J. T. Morehead*and *Boy den*for the plaintiff.

*Waddell*and *Badger*for the defendants.

Daniel, J.

This was an action of debt. Plea *non est factum.*The writing declared upon was prepared by the deputy of the plaintiff, and by him delivered to the principal (Roberts,) to be executed as a bond by himself and his sureties. The next thing we hear of the bond, it is in the hands of the obligee, signed and sealed by the defendants. It appears, that, after the writing had been prepared fcr execution by the deputy, one James Martin had inserted his name in the body of the instrument as one of the obligors, but he had omitted to seal the same. The defence at the trial was, that the writing was sealed by the defendants and delivered to Roberts as an escrow: and that it was not intended to be delivered to the plaintiff as their deed, unless James Martin also executed it. The only circumstance relied upon, by the defendants to shew it an escrow, was the fact, that Martin had written his name in the body of the instrument as one of the obligors. A bond cannot be delivered to the obligee as an escrow, for such a delivery would make it absolute at law; but it may be delivered by the sureties to the principal obligor as an escrow. *Pawling*v *the United States,*4 Cranch, 219. I Touchst. 58, 59. When a bond like this has no subscribing witness, then the proof of the possession by the obligee, and also the hand-writing of the obligors, is a sufficient ground for presuming that the bond was, as it purports to be, sealed and delivered by the

*342obligors. *Philips on Ev.*364. *Grellier v Neale,*Peak’s *cases, 145Lurrows*v *Lock,*10 Tes. 474. The court instructed the jury “ that if they should find the fact tó be, that when the defendants signed and sealed the bond, they were induced to do so, because the name of James Martin was written in the body of the bond, and they signed and sealed the same, upon the understanding that he was also to sign and be fully bound with them, then a delivery of the said writing to Roberts or any other person for the plaintiff, without their consent, was not such a delivery of the bond as in law would bind them.” There was no evidence in the case that the defendants would or would not have sealed, if Martin’s name had not been in the writing. They all did seal, without either of them making a declaration that it was done upon the condition that Martin should seal. In delivering a writing as an escrow, two cautions are to be heeded: First, that the form of words used, in the delivery of a deed in this manner, be apt .and proper; Secondly, that the deed be delivered to some other person, and not to the party himself to whom it is .made. 1 Shep. Touchst. 58, *(marginal page,*Prest.Ed.) In the case before cited.fromd Cranch, one of the surety obligors, at the time of executing the bond, said, In the presence of some of the other obligors, “ we acknowl edge this instrument, but others are to sign it,” this was admitted to be evidence, from which the jury might infer a delivery as an escrow by all the obligors, who were then present. in-the .case now before us, the plaintiff proved that, which in law amounted to a presumption of an obsolute sealing and delivery by the defendants. The burthen of proof was then thrown on the defendants, to shew that the sealed writing had been delivered to Roberts or some other person as an escrow. Six persons have signed and sealed the instrument as sureties, and there is no evidence of any declaration by them or either of them to Roberts or any other person, that they executed it on condition that Martin should be jointly bound with them. In *Fitts v Green,*3 Dev. Rep. 291, the court had made an order that the guardian renew his bond, with Solomon Green and John C.. Johnson as his securities. Green sealed and left the writing *343with the clerk, and Johnston did not execute the bond. It was *held,*that Green had delivered the bond only as an escrow, that he had declared through the mouth of the court, that the bond was not to be accepted, until Johnston had ex-ecnted it. If the court in this case had made an order, that Roberts should execute the bond to the master, with the defendants and Martin as his sureties, then it would have been presumed that the sealing and the delivery of it by the defendants to Roberts were only as an escrow. But in this case there is no order of court designating the sureties, and there was no declaration made by the sureties, or either of them, in the presence of the others, or in any other manner, that Martin should sign and seal. The name of Martin being inserted in the body of the writing before the defendants executed it, *per se,*is no evidénce that the defendants did execute it, on condition that he, Martin, should also execute it.

We must therefore say that there was *no*evidence in the case, upon which the court could properly leave the jury at liberty to say, that the bond was delivered as an.escrow.

Per Cxjrxam, New trial awarded,