#### Samuel P. P. Fay, Judge, &c. for the benefit of John Barrows *et ux. versus*Francis Richardson *et al.*

Where a bond is signed and sealed, but not delivered to the obligee, and it is after-wards put into the possession of the obligee by a person who has no authority to deliver it, the obligee cannot maintain any action on the instrument.

R was appointed guardian of a minor, and a letter of guardianship was made out for him at the probate office, on which was minuted “ to be delivered when bond is fil ed.” R acted as guardian for more than two years, until his death. He and two other persons as his sureties executed a guardianship bond to the judge of probate in the presence of witnesses, and R took it and kept it among his papers, where it «as found at his death. His administrator filed the bond in the probate office, with a written declaration on it, that he did not intend to affect the legal rights of the parties by thus filing it. It was *held,*that no action could be maintained upon the bond by the judge of probate, as it had never been delivered.

This was an action on an instrument purporting to be a bond to the judge of probate for the county of Middlesex, made by William Richardson, as principal, and the defendants as sureties, conditioned for the faithful discharge of W. Rich*96ardson’s duties as guardian of Julia Danforth, a minor. The case was submitted to the Court on a statement of facts, in substance as follows :

On March 4, 1823, Julia Danforth, a minor and unmarried, aged eighteen years, now the wife of J. Barrows, chose W Richardson to be her guardian; and on March 5, the judge of probate made a decree appointing him guardian, “ he giving bond as the law directs.” A letter of guardianship was made out, but not delivered to him, on which the register indorsed, “ to be delivered when bond is filed.”

At the same court, Josiah Crosby, who had before been the guardian of the minor, settled his guardianship account, to which settlement Richardson gave his assent in writing, as “ Guardian,” which assent was written thereon by the judge. Soon after the appointment, Richardson assumed to act as guardian, and continued to do so till his death, which took place June 15, 1826. On November 24, 1823, he received of Joseph Locke, who had been surety for Isaac Hurd junior, a former guardian of the minor, 339 dollars, and gave a discharge for the same under his hand and seal as guardian.

At the time of Richardson’s death, the bond on which this action is brought had not been filed in the probate office, and the letter of guardianship still remained there. The administrator of Richardson found among the papers of the deceased a warrant of appraisal, together with the bond on which this suit is brought, filled up in the handwriting of the judge or register of probate, having the signatures and seals of Richardson as principal, and the defendants as sureties. The bond was executed by the principal and sureties in the presence of witnesses, and the bond was taken away by Richardson.

Richardson’s administrator, soon after finding the bond and before the commencement of this action, lodged it in the probate office, with the following endorsement: — “ The within bond was found by me among the papers of the within-named William Richardson after his decease, in the form in which it now exists. I file this bond in the registry of probate, not intending to withhold any right from any person interested in it, nor by any act of mine to give any rights to any person which he does not now possess. March 20,1827. Marshall Preston, *97Administrator. Shortly before William Richardson’s death he had assigned property to the defendant Francis Richardson, to indemnify him against his liabilities as surety for William, but the property assigned is not sufficient to indemnify Francis against his other liabilities, exclusive of the claim in this case.

*Oct. 17th*

The bond in suit had the following endorsement on it: :£ March 5, 1823. Examined, approved, and ordered to be filed, Slc. S. P. P. Fay, J. Prob.”

*Hoar,*for the plaintiff.

No particular formality is necessary to constitute a delivery of a deed; nor is it necessary that the party to whom it is made should be present when it is delivered. *Hatch*v. Hatch, 9 Mass. R. 310 ; *Goodright*v. *Straphan,*Cowp. 201 ; *Goodrich*v. *Walker,*1 Johns. Cas. 250. Where an instrument is delivered by the grantor as his deed, to a third person, to be delivered over by him to the grantee on some future event, it is the grantor’s deed presently, and the third person is a trustee of it for the grantee, and if the grantee obtains the writing from the trustee before the event happens, it is the deed of the grantor, and he cannot avoid it by a plea of *non est factum,*whether generally or specially pleaded. *Wheelwright*v. *Wheelwright,*2 Mass. R. 454. Where a deed is delivered as an escrow, it is of no force until the condition is performed. But if either of the parties dies before the condition is performed, and afterward the condition is performed, the deed is good, and takes effect from the first delivery. 4 Cruise, 29, *tit. Deed, c.*2, § 55 ; Touch. 59. The official certificate of the acceptance of the bond by the judge cannot be contradicted by parol evidence.

*Stearns, contra.*

The sureties cannot be answerable for the principal’s intermeddling before the bond is filed. William Richardson, notwithstanding his acts, was, in fact, never guardian ; the letter of guardianship never having been delivered to him, the appointment was only inchoate. The bond in this case was never delivered ; and the circumstance of its coming into the possession of the obligee, without any delivery on the part of the obligors, cannot make it their deed. Perk. § 137 , Touch. 57 ; Vin. *Faits,*I. The bond never belonged to the judge of probate. Suppose the judge had called on Richardson for the bond, and he had refused to give it up to him, could *98the judge have brought trover for it ? This case is not like that of an escrow ; an escrow is a complete deed delivered to a third person ; here the deed was incomplete. *Maynard*v. *Maynard,*10 Mass. R. 456 ; [Rand’s ed. 458,, note a;] *Jackson*v. *Phipps, 12*Johns. R. 418.

*Hoar,*in reply,

said that the delivery of the letter of guardianship was not necessary m order to make Richardson guardian ; he was guardian without it.

At a subsequent day in the term the opinion of the Couit was read as drawn up by

Parker C. J.

We have not been able to find any princl pie or authority to justify us in giving validity to the bond on which this suit is brought.

A bond is a deed, and delivery is essential to a deed.1 There are cases of a constructive delivery, but there is no evidence here to bring this case to a resemblance of them. All that appears is, that the paper was signed and sealed by the principal and sureties and was left in the hands of the principal until his death. The act of his administrator cannot make a delivery, especially as the memorandum was intended to prevent his act being so considered. ■ For aught we know, it was never in tended by the sureties that it should be delivered until sufficient indemnity was given to them by the principal. And it may be, that finding no bond in the probate office, they have on that account omitted to seek for security which they might otherwise have obtained. The certificate on the bond, of approbation by the judge, has no effect, it being manifest that it was made before the bond was signed; for the letter of guardianship remained on the files, with the minute that it was to be delivered when the bond should be filed.

It is certainly a very hard case for the ward, and shows tne importance of great care in the probate office ; but it would be equally hard on the sureties to hold them liable. At any rate, they insist upon the law, and we cannot withhold it. The in*99strument never became their bond by their definitive act of delivery, and it cannot be made so by any power of this Court.

*Plaintiff nonsuit.*

1

 See *Mills*v. *Gore,*20 Pick. 28; *Powers*v. *Russell,*13 Pick. 75; *Nabb*v *Goodtitle,*1 Breese, 157; *Chadwick*v. *Webber,*3 Greenl. 141; *Porter*v. *Cole,*4 Greenl. 20; *Woodman*v. *Coolbroth,*7 Greenl. 181; *Chess*v. *Chess,*1 Pennsylv. R. 32 ; *Simonton's Estate,*4 Watts, 180 ; *Allen*v. *Getz,*2 Pennsylv. R 310; 4 Kent, (3d ed.) 454.