#### Thomas Threadgill *upon the relation of*Hezekiah Hough *v.*Hiram Jennings *et al.*

A bond to the chairman of the County Court, his “executors, &c.” is not an office bond for want of the words, “successor, &c.” But it enures as a private bond, and a delivery to the clerk is sufficient, unless the obligee refuses it, although the .clerk is the agent of the chairman as to office bonds only.

Debt upon a bond given by *John T. Scott*and *Hugh McKenzie,*upon taking out letters of administration upon the effects of one *Samuel Knox. Plea*— Mon *est factum.*On the trial, before Daniei, Judge, at Anson, on the last circuit, the plaintiff produced the bond, which turned out to be made payable to “ *Thomas Threadgill,*chairman, his executors, administrators, &c.” instead of *“*his successors in office,” as prescribed by the act of 1791. *(llev. c.*342.) There was no attesting witness to *it;*the plaintiff proved the hand writing of the obligors, anil the deputy clerk of the County Court swore that he found it among the files of the office, but that he recollected nothing of its execution. For the defendant it was objected, that as the bond was not an official bond, but only a private obligation, entered into with the plaintiff as an individual, there was no evidence of an actual delivery to him, or to any one for him ; that although the *385clerk of tbe County Court might be presumed to be the agent of the chairman, in accepting the delivery of official bonds, he could not be so presumed in respect to bonds payable to him in his natural capacity. His Honor being of this opinion, nonsuited the plaintiff, who appealed.

No counsel appeared for either party.

Daniel, Judge.

Two questions arose on the trial'of this cause in the court below ; first, whether the bond declared on, was an official bond, and might be sued on by the successors of *Threadgill,*who, it appears, was chairman of the County Court of Anson. On this point, I was of opinion that it was not an office bond, as it was not made payable to *Threadgill*and his successors in office, but to him and his personal representatives. — . The anonymous case in *Haywood’s Reports,*(1 *vol.*144,) is'HQt an authority against that opinion, as there the instrument declared on, was intended to be an office instrument, and no one but the successor could have sued on it, as the instrument had on its face no words which denoted that it. was intended to be an individual covenant. In the present case, the bond has such words in it, and the word *“*successors,” which if inserted, would have made it a good office bond, is omitted. The second question was, whether the delivery of the bond to a stranger, with an intent that it should be delivered by the stranger to the obligee in his official capacity, would nevertheless, upon its delivery, make it a good individual obligation. A deed is good if delivered to a stranger, to the use of the obligee. But if it be delivered to a stranger without any such intention, (unless it be delivered as an escrow,) it seems this is not a sufficient delivery. *(Sheppard’s Touchstone, 57,*58. 2 *Thomas’ Coke,*225, *note m.)*The case of *Fitts*v. *Green, (ante*291,) was relied on for the defendant in the court below, and it had great influence in determining the case. But upon more mature reflection, I think that it was immaterial, in what character the obligee was to take the bond. The question for the jury to determine, was, *386whether the obligor delivered the instrument to any person, (be that person a stranger or not.) with an intent that it should be delivered to the plaintiff. If the intent was, that the plaintiff should receive it, and lie. did thereafter receive it, the bond then was good from its delivery to the stranger. The direction to the jury, to enquire whether the obligors intended the instrument should be delivered to the plaintiff, and if they did, whether they intended that it should, after its delivery, operate in law as an office bond, and not as an individual bond, I now think was improper. The jury should have been simply instructed to enquire, whether the instrument was placed in the hands of the clerk, with an intention *by the*obligors, at the time it was thus delivered that it should be delivered over to the plaintiff. If the jury should find the fact of intention to deliver, and that in pursuance of that intention, it was delivered to the plaintiff) then the effect which the law would afterwards give the instru-' ment, ought not to have been regarded ‘by them, in ascertaining tire isolated fact, whether or not the obli-gors intended the plaintiff should have the instrument as their deed. If the obligors intended to deliver the instrument to the plaintiff as their deed, and if it afterwards came to his hands, it then was their deed, notwithstanding their ignorance of the fact, that in law it was not an office bond. The obligors are not to be heard to say they were ignorant the law would make it good as an individual bond, when it was invalid as an office bond. I think a new trial should be granted.

Ruffin, Judge.

It is not certain, that the jury could not infer that the clerk was the agent of the plaintiff for accepting the delivery of the bond, although it be not strictly in the form required by the statute. The purpose of giving it is obvious from its terms. It was intended to have the same operation as one which conformed to the act of assembly; and it is no great stretch to presume, that the chairman of the court authorised the clerk to accept any obligation, made to secure the faithful administration of the assets. But this case *387does not depend upon tlie agency of the *clerk;*if he be a stranger, the bond was the deed of the obligors at the time of the plea, as the obligee had not, before that time refused it.' That is the rule laid down by Lord *Coke*in *Butler*and *Baker’s case,*(3 *Rep.*28,) and again in *Whelpdale’s*case. (5 *Rep.*119.) It is founded on the presumed assent of the party to whom the deed is made, from the advantage accruing to him under it. There is a yery strong case of the application of this principle. If a deed be made to a married woman, she can neither expressly assent or dissent during her coverture. She has not capacity for either : but may dissent when she becomes discovert, which avoids the deed *ab initio.*Yet in the mean while, the deed operates, and vests the title in her; because the law presumes for her benefit, that she will assent when she can — at all events, until it be refused, it is a deed. The case of *Fitts*v. *Green, (ante*291,) was decided upon the ground that the bond was not complete; that is, that it was not what all the parties intended it should be, before it was delivered by one, or accepted by the other. Something more was to have been done, and therefore, without express evidence of delivery in the state in which it then was, none could be presumed.

Per Curiam. — -Judgment reversed.