MOSS

v.

RIDDLE & CO.

. March Ts.

Marshall, Ch; J.

delivered the opinion,of thé court to the following effect:

It. is admitted by the counsel in this case, that a bond cannot be delivered to the obligee as an es»' -crow. But it is' contended that where'there are several obligees constituting a copartnership, it maybe delivered-as an escrow to one of the firm. The court, however; is of opinion that. a delivery to one isa delivery to alf. It can never be necessary to - the validity of a bond that all the obligees shorild be convened together at the delivery.

Upon the other point the counsel for the plaintiff in error has insisted that the plea is sufficient.

But thé . court thinks it so radically defective as to be bad even upon general deiriurrer. There is no allegation of fraud, and the circumstances pleaded do not, in' themselves, amount to fraud.

Fraud consists in intention, and that intention is a fact which ought to have been averred, for .it is the gist of the plea, and would have been traversable.

Upon what was the plaintiff below to take issue ? Upon all the ciréumstances Stated in the plea which are mere inducement, or upon the' conclusion that “ thp bond is .void ?” If he had traversed the ihdkcement, the issue would have been immaterial: if he had traversed the ¿conclusion, it would have been putting in issue to'the jury matter of law.

Judgment affirmed with costs.

C. fee suggested that there was also an exception to the refusal of the court to allow an. amended plea to be filed, after the court had adjudged the pleas bad.

But the Chief Justice said that the court had, in ari early part of this term,* decided that such refusal was no error for which the judgment could be reversed.

*

See the case of Mandeville and Jamesson v. Wilson, at this term. ante, p: 15.