Mayor v. Moore

Decided November 15, 1804

District of Columbia District Court · decided 1804-11-15

Debt, on an auctioneer’s bond. Plea, 1st, non est factum, and 2d, delivered as an escrow, to be his deed, if also executed by William Hodgson and Peter Sherran, who did not execute it. Issue to the 1st plea; special demurrer and joinder to the 2d plea, because, 1st, the plaintiffs were not privy to the delivery as an escrow ; 2d, the thing to be performed is to be done by strangers and not by the plaintiffs. The obligee must be privy and consent to the conditional delivery.

Decided 1804-11-15

¶1The Court overruled the demurrer.

Kilty, C. J.,

¶2contra.

¶3Thereupon Mr. J. Lee moved the Court to strike out the judgment, and for leave to withdraw the demurrer, and to file general replications to the pleas, which was granted upon payment of the cost. Fitzhugh, J., doubting whether the demurrer could now be withdrawn.

¶4Upon the trial of the issues, Mr. E. J. Lee asked Cleon Moore, the subscribing witness, whether his name was signed by himself, to which he answered in the affirmative, but was not asked as to the delivery of the deed. The attestation was thus: “ sealed and delivered in presence of Cleon Moore.”

¶5Mr. Simms prayed the Court to instruct the jury that there was no evidence of the delivery of the deed.

¶6The Court gave the instruction. It being no more than prov vo*194ing the handwriting of the subscribing witness, while he was living, and within reach of the process of the Court.

¶7Verdict for defendants.