Moore, Judge :
The points assigned as error in this case arose in the trial of the issue upon the defendant Brown’s plea of non estfactvm. The Appellant, insisted that the Court erred.
“ 1st. In permitting the witness Beard to testify as stated in Plaintiff’s first bill of exceptions, and in permitting the witness Brown to testify under the same circumstances, as stated in Plaintiff’s second bill of exceptions.
*119“ 2d. In refusing tbe Plaintiff’s motion to exclude tbe evidence referred to in Plaintiffs second bill of exceptions, and in making, upon tbe decision of tbat motion, tbe statement to tbe jury set out in said bill of exceptions.
“ 3d. In overruling the Plaintiffs objection to the question by Defendant set out in Plaintiffs third bill of exceptions.
“ 4th. In denying tbe Plaintiffs motion for a new trial.”
It appears from tbe Becord that the writing obligatory, sued on by Newlin, was signed by tbe said Beard and Brown; and upon trial of the issue arising' on tbe plea of non est factum, Brown introduced not only Beard, bis co-signer and co-defendant, but also himself, to prove tbat he had signed and delivered the instrument sued on to bis co-defendant Beard, on condition tbat certain other persons should sign it.
Tbe Plaintiff objected to tbe introduction of any evidence respecting conditions on which Brown signed, or executed tbe instrument, unless Brown proposed to connect it with evidence, showing tbat tbe Plaintiff was apprised of such conditions before delivery to him of tbe instrument as tbe deed of the parties who had signed it; or “ it were first decided, tbat thé said instrument indicated on its face tbat it was not. intended to be a complete contract at tbe time of its final delivery.” The defendant, Brown, proposed to show either tbat Beard was acting as tbe duly authorized agent of Newlin in procuring the signature, or tbat Newlin was' in possession of such facts at tbe time of the delivery, by Beard, of tbe said instrument to him, as would put him upon enquiry as to tbe terms upon which Brown bad signed it. Tbe first bill of exceptions, from which I quote verbatim> states that, “ Plaintiff then further objected upon' the ground that if tbe Defendant relied upon tbe evidence thus proposed to be introduced by him, such evidence *120should first be introduced, and no reason was stated why said evidence could not be introduced at this stage of the trial; but the Court, in view of the said statements of counsel and the evidence already in the cause, overruled the Plaintiff’s said objections and permitted the witness to state the conditions on which the defendant Brown signed said bond, without deciding that said bond was not complete and perfect on its face.”
It is the established rule, that the bidden of proof of the formal execution of a deed, when put in issue under the plea o£'non est factum, rests upon the party claiming under it; and that proof must show that the deed was signed, sealed and delivered by the obligor as his deed. Pursuant to said rule, the Plaintiff in this case, to sustain the issue on his part, offered to introduce evidence showing the instrument declared on to be the deed of the Defendants, whereupon the Defendants admitted the signatures thereto to be their proper signatures. The Plaintiff then read the instrument to the jury, in evidence. The Plaintiff having, therefore, complied with the rule on his part, by introducing the writing obligatory, and showing, by the 'admission of the Defendants, that it was signed and sealed by the Defendants, and the possession of the instrument by the obligee, being in the absence of opposing circumstances, prima facie evidence of its proper delivery to him, it was then incumbent on the defendant Brown in order to sustain the issue on his part, to show some special matter in avoidance of the deed. That was the object of Brown when he offered to introduce Beard and himself as witnesses. If he could show that he had signed, sealed and delivered the instrument upon condition, either to the obligee or to the obligee’s previously constituted agent, and that condition had not been complied with, certainly, the authorities arc conclusive, that he should not be held liable as an obligor, and rightly so, because under no intendment could it be his deed until the conditions were fulfilled. *121Under our Statute, Code, ch. 130, s. 23, not only Beard but Brown were admissible as witnesses, and it was proper to prove by them tbe conditions upon which Brown signed, sealed and delivered the instrument. The objection made by the Plaintiff that evidence respecting the conditions on which the instrument was executed, by Brown, should not have been admitted, unless, connected “ with evidence showing that the Plaintiff was apprised of such conditions before complete and final delivery to him of the instrument as the deed of the parties who had signed it; or it were first decided that the said instrument indicated on its face that it was not intended to be a complete contract at the time' of its final delivery;” was made by the Plaintiff-after the witness. Beard had testified as follows: “I employed Newlin upon the terms mentioned in this agreement, upon which he is now suing. He drew it up and-1 signed it, and Newlin took possession of it. How long Newlin had it I cannot say, but he had it for some time. He then had a conversation with me, and asked me if I could get as security my securities on the Jarrett bond, — I told him I did not know whether I cotdd get them to go upon the bond or not, as they had nothing to do with my employing him and did not know of it at the-time. Newlin requested me to get their signatures. On the Jarrett bond I was principal and the other obligors my sureties. After this request, Newlin brought the bond in suit to me and I took it, at his request, to see these gentlemen. The first one I went to see was George Brown, who signed it on condition.” '
Now if it is true that, “ The delivery of a deed is complete, when the grantor or obligor" has parted with his dominion over it, with intent that it shall pass to the grantee, or obligee; provided the latter assents to it, either by himself or his agent,” “and that the delivery may be complete, without the presence of the other party, or any knowledge of the fact by him, at the time, if it be made *1221° previously constituted agent/’ (and such is the doctrine laid down by Prof. Greenleaf, upon authority ciqec\ jn treatise on the Law of Evidence, vol. 2, §. 297^ an(j notes,) it seems to me the Court did not err in overruling the Plaintiff’s objection, but did right in permitting the defendant, Brown, thus to present the opposing circumstances, necessary to repel the prima facie evidence of delivery created by the obligee’s possession of the instrument. Had the defendant Brown parted with his dominion over it, with intent that it should pass to Nowlin? If so, the delivery was complete, and the factum established, as he had ah’eady admitted the signing and sealing: But contra, — suppose he had not parted with his dominion over it, with intent that it should pass to Nowlin, was it not proper to permit him to establish the non factum, by the introduction of any evidence showing he did not intend it to pass to Nowlin, as his deed until certain conditions had been complied Avith? It is true, knoAvledge of the conditions imposed must be brought home to the obligee, and that may be done either by the face of the instrument itself, or by direct communication to the obligee or his agent previously constituted for the purpose of obtaining the signatures, of the intention of the parties at the time of delivery. If the instrument upon its fa.ee indicates that it is not complete, according to the intention of the parties, it puts the obligee on his guard, and if he does not heed the warning, and make the necessary enquiry to satisfy himself that the original intention of the parties had been relinquished, he accepts it at his risk and must abide the consequences. “ If he fails to make sucji enquiry, and accepts the paper from the principal obligor, or from any one of the co-obligors, he has no right to complain If he is met by a plea, from another of the obligors, that he signed and delivered the paper upon the condition indicated on its face.” Ward, et als, vs. Churn, 18 Gratt. 812. But, “ Avhen the instrument is delivered directly to the obligee, the delivery cannot be regarded as condi*123tional in respect to the party who makes it, unless the condition is made known to the obligee. * * * * If the delivery is upon a condition made known to the obligee, his assent to it will be presumed from the acceptance of the instrument, and he will not be allowed to repudiate the condition thus assented to, and to treat the delivery as absolute and unconditional.” (Idem 813.) If, however, the instrument is delivered to a third person, not a party to it, to take effect as a bond upon the happening of some event, or the performance of some condition, and that person “ delivers it to the obligee before the event happens or the condition is performed on which he was to deliver it, it will not take effect. And it matters not that the obligee had no knowledge of the condition which the party attached to the delivery of the escrow. The condition is valid, whether known to the obligee or not.” (Idem 810.) If the instrument is on its face complete and perfect, according to the intention of the parties, and delivery is made to the obligee, or his previously constituted agent, without notice that it is. conditional, the obligee is not required to make enquiry whether it is the deed or bond of all the signers, or any of them, because it is presumed that all the obligors authorized its delivery, and he has the right to treat it as absolute and unconditional. This view of the law, it seems to me, is the reasonable inference to be drawn from the review of the many authorities made by the learned Judges, respectively, in the cases of Deardorff, et als vs. Foresman, 24 Ind., 481; State vs. Peck, 53 Maine 284, and Ward, et als vs. Churn, 18 Gratt., 801. If, therefore, I am right in this deduction of principles as establishing the rule, it is only necessary to consider, whether Beard could be Newlin’s agent in procuring the signature of Brown to the instrument?
It is true, in general, that the character of agent for one party to a contract, and that of principal upon the other part, are incompatible.
*124“ The law, indeed,” (says Ray, Judge, in Deardorff, et als, vs. Foresman, above cited,) makes the principal, for a special purpose, i. e., the delivery of the instrument, the agent of his sureties.” That being so, it seems to me reasonable, that the obligee could constitute the principal his agent to procure additional signers to the instrument, especially so, after the instrument had been signed, sealed and delivered to the obligee, and accepted by him as the bond of the principal alone, and held by him as such for a considerable length of time. For by the delivery to the obligee, the principal had parted with his dominion over the instrument, with intent that it should pass to the obligee, and was under no obligation to obtain additional signers, and had no right to, and no authority over it. All that was left to him that could be peremptorily demanded by the obligee, was a duty to perform, and that was to pay the .obligation when due. The acceptance of the instrument by the obligee, with the signature of the principal alone, was a release of the principal from any demand for sureties thereon; the dominion was absolutely in the obligee, a right only to demand of, and enforce payment from the obligor, when the obligation was due. If, therefore, he returns to the obligor the instrument, with a request, or direction, that he procure other signers thereto, and the obligor receives it for that purpose, it seems to me conclusive that the obligor is for that purpose constituted the agent of the obligee, as much so as if he had been a stranger, or no party to the instrument; and any delivery upon condition, made to the agent by the party who signs the instrument, when thus presented to him by the agent, pursuant to the request of the obligee, will bind the obligee; and the instrument cannot take effect until the condition is performed, because no tice to the agent, under such circumstances, is notice to the obligee; and if the obligee attempts to recover, on the bond, the party who made the conditional delivery to the agent has the right to defend by pleading non est factum, and proving by the *125agent himself the agency, and the conditional delivery. I am, therefore, of opinion that the Court did not err in overruling the Plaintiff’s objections stated in the first bill of exceptions; and for the same reasons, I think the' Court did not err in overruling the Plaintiffs motion to exclude the evidence, as stated in the second bill of exceptions, and the objection made to the question as stated in the third bill of exceptions.
The Court, in overruling the Plaintiff’s motion “ to exclude from the jury all evidence relating to the condition or agreement on which the defendant Brown signed and delivered the instrument in suit to his co-defendant Beard,” stated, in the hearing of the jury, “that in consideration of the evidence that had gone before, in reference to the Plaintiff’s requesting the Defendant Beard to procure the signatures of the obligors in the Jarrettboud, to the writing sued on, and when he returned with but one of the signatures it was sufficient to put the Plaintiff upon enquiry before accepting the delivery of the same from Beard; therefore, the Plaintiff’s motion to exclude said evidence from the jury must be overruled by the Court.” The Plaintiff excepted to such statements being made in the hearing of the jury by the Court. The question now arises, whether the Court erred in making such statements in the hearing of the jury, and if so, should the judgment be reversed for that error ?
In the case of McDowell’s Ex’or. vs. Crawford, 11 Grat. 402, which was decided by a divided Court, Judge Moncure in giving the opinion of the Court, says: “ It is a fundamental maxim, that the Court responds to questions of law, and the jury to questions of fact. The Court must decide as to the admissibility of evidence, that being a question of law; but not as to its weight after it is admitted, that being a question of fact. The cases in this Court in affirmance of this position are too numerous to be cited. Most of them are collected *126in 1 Rob. Pr. 338-344. As the author says, they ‘evince a jealous care to ■watch over and protect the legitimate powers of the jury. They show that the Courts must be very careful not to overstep the line which separates law from fact. They establish the doctrine that "where the evidence is parol, any opinion as to the weight, effect or sufficiency of the evidence submitted to the jury ; any assumption of a fact as proved, or even an intimation that written evidence states matter which it does not state, will be an invasion of the province of the jury.” — (11 Grat. 402).
In admitting or excluding evidence, I concede the authorities guard closely the line of demarkation between law and fact, and watch with jealous eye the encroachment of the Court on the province of a jury; but, whilst they do not sanction opinions of the Court as to the “weight, effect, or sufficiency of evidence77 on matters material, or such as would influence a jury to the prejudice of a party, yet, the doctrine is not so rigid in its application to opinions, or statements of the Court on points immaterial, or such as cannot operate injury to a party. In such case it is not error for which an Appellate Court'will reverse a judgment. (Pitman vs. Breckenridge & Crawford, 3 Grat. 127; Colvin vs. Menefec, 11 Grat. 87; Cricket et al. vs. The State of Ohio, 18 Ohio S. R. 9).
In the case before us, the statements of the Court, although, perhaps, improper to have been made within the hearing of the jury, yet, in view of the case as taken in this opinion, holding the law as herein stated, applied to the facts of the case, could not have prejudiced the Plaintiff, and therefore there is not such error as would justify an Appellate Court in reversing the judgment.
The 4th and last assignment of error is, “in denying the Plaintiff’s motion for a new trial,77
In this case, as in that of Bennett vs. Hardaway, Administrator of Jones, 6 Munford, 125, the bill of excep*127tions does not state on what ground the motion for the new trial was made, hut as the evidence*of the Plaintiff (the exceptor) is, (except as to the agency of Beard to procure the signatures), contrariant and contradictory to that of the Defendant, the inference is that the motion was made upon the ground that the verdict was contrary to evidence. Under the authority of that case, followed by Green vs. Ashby, 6 Leigh 135; Ewing vs. Ewing, 2 Leigh 337; Rohr vs. Davis et als, 9 Leigh 30, and Pasley vs. English, et als., 5 Grattan 141, the Appellate Court cannot consider the parol evidence of the Appellant, so far as it is conflictory with that of the Appellee; and as the evidence, thus viewed, does not show that the verdict was contrary thereto, the ruling of the Circuit Court must be sustained.
The judgment should be affirmed with costs and dam-