Edenton,

October Term, 1804.

#### Anonymous.

TVSIST rpcn a bond, and u«n estfactum pleaded. The plain» tiff proved the delivery of the bond, and was proceeding to state che conditions on which it tras delivered, to be dele vi» cd over.

Mr. Drew insisted, that as there was no plea of delivered as mn escrow, no such proof could be offered , and relied upon iha case decided by Judge TayAr at Ncwbern, and afterwaids fey the Court of Conference j the case of Smallwood vs. Clark.

Hall, Judge,

said lie had long doubted exceedingly of that ¿ei.kion; but as it had been decided by the Couit A Confer» «nce, he would not undertake to over-rule it- — but it a proper case was made, would cairy it to the Ccuit of Conference loir their rc-consideration. Most clearly, if the delivery was made So the plaintiff by the ictciveuing person t* whom it %?«» delivered for the plaintiff’s benefit, before the tem* were «implied with in which the delivery to hi in v at atsthc.riiitd by the defendant, it wa» do»e without authority, ved ccwlt i.#*, bis «bestdared ns, hi# delivery, #i„d to r.ci Iff* bend.