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.