#### Smallwood vs. Clark.

T>LEA, the general issue, with leave to plead any other plea i and Wood moved after the jury sworn, to plead another plea, namely, delivered as an escrow; but the court said it is too late now to add another plea, as it will delay the plaintiff.Wood then offered to give evidence under the general issue, that thejpaper now declared on as a bond, was delivered as an escrow, which the court refused. Hayxvood sitting near Wood, advised him not to give it up, for that there were precedents enough to support him. This brought on another argument; and Wood cited 6 Mo. 218. Mo. Eut. 186. 5 C. D. Pleader. 2 W. 18. 2 ft. Ab. 683. Ray. 197. Mo. C. 217. 1 Salk. 274. Buffer 172. S Rep. 119. 7 Mo. 53. Gil. L. E. 159. L. Ray. 354, 336,337.

Taylor, Judge.

Such evidence cannot be given on a general non est. factum as here ; but only upon a special one disclosing 'the fact-ol its having been delivered as an escrow; and that the conditions were not performed ; and concluding, and so it is not his deed.

Wood being dissatisfied, caused it to be carried to the court of conference, where the opinion of Judge Taylor prevailed. - There.is no doubt however, but that this decision is against law ; and it has been acknowledged by Judge Hall to be so-in twopnstances, which have since occurred. — And he argued thus:

If upon non est factum, pleaded, the plaintiff gives evidence of an execution by the defendant and delivery to the plaintiff, and the fact really be, that it was delivered to a third person on Condition, shall not the defendant be allowed to prove this on his part.? and.if he does prove it, shall the plaintiff still recover ? This short argument is unanswerable. '

£hiere de hoc.