MURRAY, Administrator of W. MURRAY, deceased, v. The Earl of STAIR. A subscribing witness to a bond stated that it was delivered by the obligor as his deed, but that before and at the time of the execution, it was agreed that it should remain in his (the subscribing witness') hands until the death of A. B., and until certain securities were given up, and that the bond was given up to him upon that condition: Held, that it was then a question of fact for the jury, upon the whole evidence, whether the bond was delivered as a deed to take effect from the moment of delivery, or whether it was delivered upon the express condition that it was not to operate as a deed until the death of A. B., and until the notes are delivered up. Semble, That it is not essential in order that an instrument should operate as an escrow only, that it should be expressly declared at the time when it is executed, that it was not to operate as a deed until a given event happened.

It is not necessary in a declaration upon a post obit bond, to aver the death of the person upon whose death the money secured by the bond was to become payable.

A post obit bond (upon which a forfeiture has taken place) is not within the statute of the 8 & 9 W. 3, c. 11; and therefore it is unnecessary to suggest breaches. Semble, That such a bond is within the 4 & 5 Anne, c. 15.

DECLARATION on a bond, bearing date the 3d November, 1813, given to the deceased in the penal sum of 4000l. Plea, craving oyer of the bond, and of the condition, which was for the payment to William Murray, his executors, &c., of 2000l., by John William Henry Dalrymple, within six calendar *83] months after the decease of his kinsman, John Dalrymple, Earl of Stair. The plea then stated that the bond was, on the 3d November, 1813, delivered by the defendant to W. Saunders, the subscribing witness thereto, merely as an escrow, on the condition that the same should remain in the hands of the said W. Saunders until the decease of the said J. Dalrymple, Earl of Stair, and that then and then only the bond should be delivered to the said W. Murray; that the said writing obligatory accordingly remained in the hands and possession of the said W. Saunders, from the time of the delivery thereof to him the said W. Saunders as aforesaid for a long time, and until he the said W. Saunders, before the decease of the said John Dalrymple in the condition mentioned, to wit, on the 10th March, 1819, wrongfully parted with the possession thereof, and the same thereby wrongfully came into the hands and possession of the said W. Murray; and so the defendant saith that the said writing obligatory is not his deed, in manner and form as the plaintiff hath alleged. Second plea, that it was delivered as an escrow, on condition that the same should be delivered up to the said W. Murray, in case two promissory notes for 1000l., then outstanding, should be delivered up to W. Saunders, to be cancelled; and that the said last-mentioned notes have not, nor hath either of them, been delivered up to the said W. Saunders for the purposes aforesaid, or otherwise. Upon these pleas issues were joined. At the trial before ABBOTT, C. J., at the Middlesex sittings after Trinity term, 1822, W. Saunders, the subscribing witness, proved the execution of the bond, and also gave in evidence the following facts. He *84] acted as the attorney of the defendant when the bond was executed. At that time Murray, the intestate, held two promissory notes of the defendant's, and had threatened to put them in suit. The defendant, in consequence, proposed to give the intestate the bond in question, but desired that it should not go into the market before the death of Lord Stair, as that might have the effect of creating a prejudice in his mind to defendant's disadvantage. It was agreed by all the parties, before and at the time of the execution of the bond, that it should remain in Saunders' hands until the death of Lord Stair, and that it should not even then be delivered up to Murray until he gave up the notes, and the defendant would not have given the bond unless that had been assented to. The bond, however, was attested, sealed, and delivered in the usual way, and no other than the words usual on the execution of a bond were used by the defendant when he executed the bond in question. In 1812 Saunders had been a surety for the wife of the intestate, upon her taking out letters of administration; and he desired an indemnity to protect himself, and he kept the bond in question partly for his own security. Some weeks after it had

been executed, Murray, the intestate, told Saunders that his, Murray's, wife had misapplied some money belonging to the estate, and observed at the same time, that he, Saunders, was indemnified, for he held Lord Stair's bond. John Lord Stair died in June, 1821, and the defendant then succeeded to the title; Saunders, however, in the beginning of 1819, at Murray's request, had delivered the bond over to him for the purpose of depositing it with his woollen-draper, as a security. Upon cross-examination, he stated that the bond was executed upon the express condition that it *was to remain in his hands until the death of Lord Stair, and until the notes were delivered up. Upon this evidence [*85 it was contended, that the plaintiff ought to be nonsuited, inasmuch as it appeared to be the intention of the parties that the instrument should not operate as a deed until the death of Lord Stair; and Johnson v. Baker, 4 B. & A. 440, was cited. The lord chief justice reserved the point, and the plaintiff had a verdict, with liberty to the defendant to move to enter a nonsuit. A rule nisi having been obtained in last Michaelmas term,

The Solicitor-General, Gurney, and Comyn, in Easter term showed cause. The defendant delivered the instrument as his deed, and it took effect as a deed from the moment of such delivery. In order to make it operate as an escrow, the defendant ought, at the time of the execution, to have said that it was to become his deed only upon the death of Lord Stair, and upon the delivering up of the two notes; but having delivered it as his deed, with a request to Saunders to keep it till the notes were delivered up, it operates as such from the moment of its delivery. This distinction is pointed out in Sheppard's Touchstone, 58.

The learned author, after defining an escrow, states "that it is essential that the form of words used in the delivery of such an instrument should be apt and proper, as, for example, I deliver this to you as an escrow to deliver to the party as my deed, upon condition that he do deliver to you 201. for me, or upon condition that he deliver up the old bond he hath of mine for the same money, (or as the case is,) or I deliver this to you as an escrow, to keep until such a day, upon condition that *if before that day, he to whom the es[*86 crow is made shall pay to me 107. or give me a horse, or enfeoff me of the manor of Dale, or perform any other condition, that then you shall deliver the escrow to him as my deed. But if when the deed is delivered to the stranger, I use these words 'I deliver this to you as my deed, and that you shall deliver it to the party upon certain conditions; or to deliver to him to whom it is made when he comes to London,' in this case the deed takes effect presently, and the party is not bound to perform any of the conditions." This is an authority to show that the intention that an instrument should operate as an escrow, should be clearly expressed at the time of execution. (a) But assuming that not to be necessary, it sufficiently appears from the whole of the evidence to have been intended that this should operate as an effective deed from the moment of its execution. It was given to prevent two other effective securities from being put in force against the defendant. It was left in the hands of Saunders, his own attorney, in whom he had a special confidence; and Murray the deceased understood it to be a valid security, for he told Saunders that he was secure against any claims that might be made upon him, as he held Lord Stair's bond. Scarlett, (and Marryat and Lawes were with him) contrà. The question is, whether the defendant intended this instrument to operate as a deed from the moment of its execution, or only upon Lord Stair's death and the delivery up of the notes. Now it appears from the evidence of Saunders, who was called as a witness on the part of the plaintiff to prove the execution *of the bond, that it was agreed both before and at the time of the execution, that it should [*87 remain in the hands of him, the defendant's attorney, until the death of Lord Stair, and until the notes were delivered up; and that unless that had been assented

(a) See further as to the delivery of an instrument, as an escrow or deed, Vin. Abr Fait. (M: Co. Lit. 36.

to by Murray, the defendant would not have given the bond; and in his crossexamination, Saunders stated that it was delivered upon that express condition. He was then stopped by the Court.

ABBOTT, C. J. Upon further consideration, we are all of opinion that there ought to be a new trial in this case, and that it should be presented as a question of fact for the jury upon the whole evidence, whether the bond was delivered as a deed to take effect from the moment of such delivery, or whether it was delivered to Saunders upon the express condition that it was not to operate as a deed until the death of the then Lord Stair, and then only upon the delivering up of the two promissory notes. The jury must draw their conclusion from the whole of the evidence given by Saunders; and it will be competent to either party who shall be dissatisfied with my direction to tender a bill of exceptions, and the question may be raised upon the record, whether an instrument can in any case operate as an escrow, unless the party at the time of its execution uses express words to show his intention that it should not operate as a deed until a given event happen. Rule absolute for a new trial. The cause was tried again at the sittings after Easter term; and Saunders having given nearly the same evidence, the lord chief justice told the jury that *if the instrument was delivered as the deed of the defendant binding on *88] him at the time, although it was delivered on the faith and confidence which he reposed in Saunders his attorney that he would not part with it until the death of Lord Stair, and until the notes were delivered up, that it immediately became the defendant's deed, and although Saunders in fact parted with it before Lord Stair's death, and before the delivering up of the two notes, in violation of the trust reposed in him, it was still the defendant's deed in a court of law, whatever relief he might obtain in a court of equity; that it was like the common case where a conveyance is executed before the consideration money is paid, and the deed is left in the hands of the attorney until it is paid, although the attorney parts with it before payment, there is no relief at law. But if the delivery itself at the time was conditional, so as not to constitute any present obligation, it was an escrow or writing merely, and not a deed; and the condition of the delivery having been broken, it had never become the deed of the defendant. To make the delivery conditional, it was not necessary that any express words should be used at the time. The conclusion was to be drawn from all the circumstances. It obviated all question as to the intention of the party, if at the time of delivery he expressly declared that he delivered it as an escrow; but that was not essential to make it an escrow. After these observations his lordship told the jury to find a verdict for the plaintiff, if, upon the whole evidence, they thought it was delivered as the deed of the defendant, binding at the time; and for the defendant, if, on the contrary, they were of opinion that the delivery itself was conditional, so as not to constitute a present obligation. The jury having found a verdict for the *plaintiff a rule nisi *89] was obtained in this term for arresting the judgment, on the ground that the death of Lord Stair mentioned in the condition was not averred; and secondly, that the plaintiff ought to have assigned breaches according to stat. 8 & 9 W. 3, c. 11, s. 8.

Comyn was now heard against the rule, and Scarlett, Marryat, and E. Lawes, in support of it.

As to the first point, the Court, during the argument, intimated their opinion that an averment of the death of Lord Stair was wholly unnecessary, inasmuch as the condition of the bond set out in the plea contained that which was matter of defence if the event had not happened, the defendant might therefore have pleaded it; but he not having done so, the plaintiff was not bound to show the death of Lord Stair. Meredith v. Alleyn, 1 Salk. 138; Lockey v. Darby, 1 L. Raym. 108. And HOLROYD, J., said that in the common case of a bond

conditioned for indemnifying, if the defendant sets out on oyer the condition of the bond, he must plead non damnificatus, in order to make the plaintiff show a damage. Upon the other question, whether it was necessary to suggest breaches upon the record, Tidd's Practice, 604, Wardell v. Fermor, 2 Campb. 282, and Cadoza v. Hardy, 2 B. Moore, 220, were cited on the part of the plaintiff. For the defendant it was said, that in Cadoza v. Hardy it did not appear upon the record that it was a post obit bond but the question merely was, whether there should be judgment for want of plea; and it was said that the statute of the 8 & 9 W. applied to all bonds upon the face of which it did not appear that any thing, and how much was due; and they cited Walcot v. Goulding, 8 T. R, 126; Willoughby v. Swinton, 6 East, 550; Welch v. Ireland, 6 East, 513; Ex parte Winchester, 1 Atk. 118; Middleton v. Bryan, 3 M. & S. 156.

[*90

ABBOTT, C. J. I am of opinion that this bond does not come within the operation of the 8 & 9 W. 3, c. 11, s. 8, by which it is enacted, "that in all actions upon bonds or on any penal sum for non-performance of any covenants or agreements in any deed or writing, the plaintiff may assign as many breaches as he shall think fit." The statute then goes on to direct that the jury are to assess the damages for the breaches so assigned; and if the defendant pay into court the damages so assessed by reason of the breaches of the covenant, together with the costs of the suit, a stay of execution is to be entered upon the record, but the judgment is to remain as a further security to answer to the plaintiff such damages as may be sustained by further breaches of covenant. The words of this statute are large and somewhat obscure. It is now, however, fully established by decided cases, that bonds for the payment of annuities, or of money by instalments, are within the statute; but that bonds for the payment of a sum certain, at a day certain, are not within it. Bonds for the payment of annuities are clearly within the provision, that the judgment shall stand as a security for future payments. Before the statute a court of equity could only put a value upon the annuity, but could not effect that which is now done by the statute. A bond for the payment of a sum certain, at a day certain, is not within the statute of William, for in order to ascertain the precise sum due in such a case, computation only is necessary, and the intervention [*91 either of a jury, or a court of equity is unnecessary. This is a bond for the payment of a sum certain, at a time that may be rendered certain, and which, upon this record, must be taken to have been rendered certain by the happening of the event contemplated by the condition. And although the day be not mentioned in the condition, yet being ascertained by the happening of the event, nothing but computation was necessary in order to ascertain the precise sum due. That being so, I think that this is a bond for the payment of a sum certain, at a day certain, and therefore not within the statute of William. It is not necessary to decide whether it be, or be not within the 4 & 5 Anne, c. 16; but I am strongly of opinion that it is. The judgment of Lord HARDWICKE in Ex parte Winchester, 1 Atk. 118, is an authority against that position. In Wyllie v. Wilkes, Doug. 519, however, Lord MANSFIELD seems to have disapproved of what fell from Lord HARDWICKE upon that occasion, and it appears that the judgment in Ex parte Winchester, went farther than was necessary. In that case the father of the wife had given a bond to the husband to pay him the principal sum of 10007. after the death of himself and his wife, and interest at 4 per cent. by half yearly payments in the mean time; and it appeared that half a year's interest had become due at Christmas, and was not paid till the 10th January, and therefore that the bond had become forfeited. The obligor and his wife were still living; it seems, therefore, that the principal had not become due at all, and consequently the day of payment of that sum had not been ascertained by the happening of the event mentioned in the condition. Tha'

bond was clearly not a bond within the statute of 4 & 5 Anne, *c. 16 *92] In this case the principal had become due by the happening of the event; and I think it clearly a case within the statute of 4 & 5 Anne, c. 16, and that it would have been competent to the defendant to have pleaded that the money due had been tendered before the action was brought.

BAYLEY, J. I am of opinion that this falls within the case of Cadoza v. Hurdy, and that that case was properly decided.

HOLROYD, J, I am of the same opinion. The stat. of 8 & 9 W. 3, c. 11, s. 8, seems to have contemplated bonds by the condition of which more than one act was required to be done; for it directs that the judgment shall be for the penalty, but that execution shall be for the damages assessed only, and that the judgment shall remain as security for further damages that might occur. The main object of the legislature was to make it unnecessary for parties to go into a court of equity to obtain relief. Now, where the penalty was a security for the doing of several acts, it became the debt at law by the non-performance of any one. And it was necessary therefore for a party to apply to a court of equity for relief, which was granted upon the terms of paying what was due in conscience. Now, in this case, only one act was to be done—the payment of the sum of 2000/. six months after the death of Lord Stair; and before the statute there could be no ground for seeking relief in a court of equity against the payment of that sum. I do not, however, mean to pronounce my judgment upon the ground that the statute of William was not intended to apply to any case but where one thing is required to be done by the condition of the bond; *93] *for it is perfectly clear that if this bond be within the 4 & 5 Anne, c. 16, it is not within the statute of 8 & 9 W. 3, c. 11. Now I think this a case both within the words and spirit of the statute of Anne, The 12th section of that statute enacts "that where an action of debt is brought upon any bond which has a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor, before the action brought, pay to the obligee the principal and interest due by the defeasance or condition of such bond, although such payment was not made strictly according to the condition or defeasance, yet it shall be pleaded in bar of such action, and shall be as effectual a bar to such action as if the money had been paid at the day and place, according to the condition or defeasance, and had been so pleaded." It is said that this is not within that section of the statute, because the money is not made payable by the condition at a day certain. Now it must be taken upon these pleadings, that the death of Lord Stair had happened before the commencement of the action, for otherwise no action could have been maintained. That being so, the day of payment had become certain, according to that maxim of law, "id certum est quod certum reddi potest," Therefore this action was brought upon a bond which, at the time of the commencement of the action, had a condition to make void the same upon payment of a lesser sum at a day certain. It falls therefore within the very words of the 12th section of the statute. The 13th section then enacts" that if at any time pending an action upon such bond, the defendant shall bring into court all the principal and interest due on it, and also such costs as have been expended in suits at law *94] or in equity, the money so brought in shall be a full discharge of the bond. Now the defendant, after the commencement of an action upon this bond, might have paid into court the principal, and interest, and costs, for they were the subject of computation. This is therefore a bond within the meaning of that section. The mischief contemplated by the statute was that where a bond was conditioned for the payment of a lesser sum at a day certain, and payment was not made at the day, the penalty became the debt at law; and payment after the day could not be pleaded in a court of law in bar of the action; and even pending the action, the payment of the principal, and interest, and costs, would not be a ground for discontinuing it, but the obligor of the

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