majority">Perkins, J.

Suit by the state upon the bond of Jonathan P. Ritchey, as swamp land agent, against him, his sureties, and two others. Breach, failure to pay over receipts of sales. Verdict and judgment for the state.

When Ritchey executed the bond in question, he conveyed to William It. Brown, as trustee for the sureties on the bond, a quantity of real estate. He also procured certain third persons to convey lands to said trustee for the indemnity of those sureties. Brown is made a defendant to the bill.

Among those alleged to have thus conveyed lands in trust to Brown is William B. Gray. On his application he was permitted to become a defendant. He answered that the deed made to Brown by him, was executed by the procurement of Ritchey; that it was put into his hands as an escrow, with positive instructions not to deliver it to Broion, the grantee, till the latter should pay the consideration-money therefor; that such payment was not made, and, hence, he had received no consideration for the lands, and they remained his, &c.- v

*26This answer was not sworn to, bnt issue was formally taken upon it.

On the trial Gray introduced Ritchey as a witness, and, as the record runs, said Gray offered to prove by said witness that said deed was never delivered to said Brown, but that it was put into the hands of said witness as an escrow, with positive instructions not to deliver the same to said Brown, and not to allow it to be recorded until the price or purchase-money should be paid; that none was ever paid; that said witness in whose hands said deed had been so placed, left said deed with the recorder for record, contrary to the instructions of said Gray, and without his knowledge or consent;' and that as soon as said Gray learned that said deed had been left with the recorder, he went to him and demanded said deed of him, saying that he had received no consideration for the lands, and that the leaving it for record was contrary to his positive instructions. All and each or any part of said evidence, the Court refused to allow said Gray to make.

The answer not being sworn to, the execution of the deed was admitted. Delivery is a part of the execution of a deed, is included within the meaning of the term. It would seem, therefore, that the delivery was admitted by the answer.

The inducement to the sureties of Ritchey to become such, was a sufficient consideration for the deed of Gray to Brown; and, perhaps, if they became such on the faith of that deed, without notice that it was really executed upon a different consideration, Gray could not now deprive them of the benefit of it. But in this case, (and we confine ourselves to the simple point presented by the record,) Gray alleged that the deed in question was made upon a different consideration, to-wit, a consideration to be paid, and that the consideration had failed. Issue was taken on this allegation, and a jury was sworn to try it. We think, therefore, the Court erred in not permitting the evidence offered by Gray, to be given. It was pertinent to the issue being tried.

J. Pettit, for the appellant.D. D. Pratt and S. C. Taber, for the state. R. C. Gregory, for the other appellees.Per Curiam.

The judgment is reversed with costs. Cause remanded for further proceedings, with leave to amend.

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