This is an action of debt on a contract under seal, alleged to have been executed by the defendants. It is very clear, that the plaintiffs cannot recover in an action either of debt or covenant, unless the instrument relied on as a contract can be shown to be the deed of the defendants, and as such signed, sealed, and delivered by them. In this case, the delivery is denied.

The possession of an instrument, signed and sealed by those to whom it purports to be made, is prima facie evidence of delivery; but it is prima facie only, and may be controverted by other evidence. Then, taking the testimony of the attesting witnesses, it appears that the indentures were prepared and partly executed at Lexington, where the plaintiffs reside, the names of Priest and Gilkey, residing at Watertown, and not there present to execute, not being therein ; that after an objection on that ground, and some conversation, their names were interlined, with an understanding that after being executed by the parties then present, one part should be taken to Watertown, to be executed there by Priest and Gilkey, and then exchanged, and the part thus executed be taken by the plaintiffs, instead of the one which they then retained. The part so taken was executed by one of the firm of Priest and Gilkey in the name of the firm. But the parts were never exchanged.

The court are of opinion, that the evidence shows no sufficient legal delivery of the instrument, to make it the deed of the defendants. The part held by the plaintiffs bore the names of two persons as obligors, who had not executed it, showing it to be imperfect and incomplete on the face of it, until something further should be done; and going from the face of the paper to the evidence aliunde, it is shown, that it was not intended to be the deed of the defendants, till executed by the other parties named, and the counterpart delivered in exchange.

*288According to the agreement of the parties, the verdict is to be so amended as to stand as a general verdict for the defendants.