
    Goodrich against Walker.
    A formal delivery of .a release is not essential; it is sufficient if such acts appear as showed an intention to deliver it.
    Where a judge charged',the jury, that in his opinion the weight of evidence was in favor of the defendant, and the jury found a verdict accordingly, a new trial on account of the misdirection of the judge, was refused, the court being satisfied that the plaintiff ought not to recover,
    ■, This was an action of assumpsit, for work, labor- and services. The defendant pleaded the general issue, and gave notice with his plea, that he would offer in-evidence, on the trial of the cause, an instrument in writing, under the hand and seal of the plaintiff, bearing date the 24th day of May, 1796, whereby, in consideration of forty pounds to him in hand paid, by David Meachum and David Osborn, overseers of,the church at New Lebanon, the plaintiff released and discharged the said overseers and community of the said church, jointly, and severally, from any further charges and demands whatsoever; and that the defendant would also give in evidence that he was at that time a member of the said church, and one of the said community.
    The cause was tried at the sittings after January term, 1799, at the city of Albany, before his honor Mr. Chief Justice Lansing.
    
    
      ■ On the trial, it appeared in evidence that the defendant at the time the labor was, performed for which the action was brought) was a member, and one of the principal directors of the church and community at New Lebanon, called the society of Shaking Quakers; that the labor was pérformed for the common benefit of the said church and community; that the period of service was upwards of eight years, and during four or five years the labor was performed under the immediate direction of the defendant; that the plaintiff was nineteen years old when he entered *the society; [*251] that the property of the church, together with the product of the labor and profits of the members thereof, were, during the time the labor was performed, held, and after-wards- continued to be held and enjoyed in common among them.
    After this evidence on the part of the plaintiff,, the defendant’s counsel moved' for a nonsuit, which was overruled by the judge. ■ .
    The defendant’s counsel then produced the discharge set forth in the notice subjoined to the defendant’s plea, as above, mentioned. .
    The plaintiff’s counsel objected to the validity of the discharge, if proved, which objection was' overruled by the court! r ■
    
    To prove the execution of the discharge, th& defendant offered one Joseph Markum as a witness.
    The plaintiff’s counsel objected to this witness, on the ground of interest, and in support of the objection, proved, that at the time the labor and services were performed, Joseph Markum was a member of the church, and- one of the community. The witness upon this executed to the society and to the defendant a general release, and the defendant executed to the witness: a similar release, after which the judge permitted the witness to be sworn, who thereupon deposed, that he saw the plaintiff execute the discharge, by signing and putting something as a seal for his deed ; that David Meachum- was present, and took it up in presence of I he plaintiff, after the witness had attested it as a subscribing witness. That the plaintiff did not appear to be-tinder any restraint at the time of such execution'-; -.and that he expressed himself satisfied with the settlement; that he had seen the plaintiff the morning of the day when the discharge was executed, and before its execution, walking in ff'ont of the house in which it was executed, apparently at his liberty.- Upon this:evidence, the. discharge was .read to the jury.
    [*252] *On the part of the plaintiff, Ezekiel Goodrich was produced as a witness, who testified, that in the winter of 1797 and 1798, he, together with Elihu Goodrich, went at the request of the plaintiff, to confer, with the Q,uak-ers, at New Lebanon ; that the plaintiff entered- into a con-? versation with the defendant, Meachum, and Osborn, in the course of which the plaintiff alleged that he had been kept in a room all night, and until next day at noon; and that they had forced him to sign a release ; that after some hesitation, one of them replied, that they had orders for what they had done from head-quarters ; and they had a right to do what they did. In this testimony Elihu Goodrich concurred.
    Samuel Chapman also testified, that he heard some persons in a room talking to the plaintiff, and persuading him to settle, saying that they would not agree to his going away until he had settled.
    The defendant then produced Eleazer Grant, who deposed, that the plaintiff informed him, after he left the society, that he had settled with them ; that he had got a horse, saddle, bridle; and some money; that the witness asked how it came about that he settled so reasonably 1 To which the plaintiff answered, that it was because he could do no better.
    George Darrow also deposed, that he lived about a mile from New Lebanon; that the morning after the plaintiff left the society, he had a conversation with him; that the plaintiff told him he had left the society, and in answer to the witness’s inquiry whether they had settled with him, he said they had; that the witness then inquired whether he had been intimidated' or compelled to settle, to which the plaintiff answered, no, that they had acted honorably, and settled without difficulty; that the reasons he had for making these inquiries, were some reports that the plaintiff had settled with them under constraint.
    Roswell Goodrich also deposed, that he accidentally met the plaintiff the same day the settlement was made; that the plaintiff said he had settled with David Meachum *and David Osborn, aud that he had received more [*253] from them than he deserved, for he knew on what conditions he 'engaged with them ; that three months after-wards he heard him again repeat that he was satisfied ; and he then said, he had gone to the society without wages; that he was neither to have debt nor blame.
    
      The chief justice charged the jury, that in his opinion the weight of testimony on the subject of the duress was in favor of the defendant; and that if the plaintiff was not under duress at the time he executed the discharge, they ought to find for the defendant.
    The jury found for the defendant.
    It was moved to set aside the verdict on the following grounds:
    1. That the witness, Markum, was interested.
    2. That the discharge or release was never delivered.
    
    3. That the charge of the court on the evidence of duress., was improper.
    Whiting, for the plaintiff
    
      Van ¥editen, for the defendant.
   Per Curiam.

Every objection to the competency of Markum, as a witness, if any existed, was removed by the mutual releases executed between him and the defendant.

As to the second point. The discharge or.release must be intended to have been well delivered. Nothing to the contrary appears. A formal' delivery is not essential, if there be any act evincing the intent.

We also think with the judge at the trial, that the weight of evidence was in favor of the defendant ;- and that the plaintiff ought not to recover.

We are, therefore, of opinion, that a new trial ought not to be granted.

Rule refused! 
      
      
         1 Phil. Ev. 133, Cowen & Hill’s ed. and n.
     
      
      
        Woodman v. Coolbroth, 7 Greenleaf, 184. Hughes v. Hasten, 4 J. J. Marsh. 573. “ The acts and circumstances which shall be taken as sufficient evidence of delivery, are various. A delivery is frequently presumed." Math. Pres. Ev. 39. It is seldom, indeed, that a party is able to show a distinct, formal act of delivery. The delivery may, therefore, he inferred from words without acts, or from acts without words, or from both combined. Hughes v. Easten, 4 J. J. Marsh. 572, 3. Verplank v. Sterry, 12 Johns. Rep. 536. Folly. v. Vantuyl, 4 Halst. 152. M’Kinney v. Rhoades, 5 Watts’ Rep. 344. Byers v. M'Clanahan, 6 Harr. & John. 250, 255, 6. Gardner v. Collins, 4 Mason, 398.”
      As a general rule, “ to constitute a complete delivery of a deed, the grantor ■ must do some act putting it beyond his power to revoke. Frtshie v. McCarty, 1 Stewl & Port. 61. See Maynard v. Maynard, 10 Mass. R. 458. The delivery need not be to the party, but may be to another person by sufficient authority from the party ; or, it may be to-a stranger, for and in behalf and to the use, of the party, without authority ; and in either case, if unconditional, the deed will take effect instanter. Alsop v. Swathel, 7 Conn. Rep. 503. Verplank v. Sterry, 13 Johns. R. 536, 546, 551, 3. Jackson ex dem. Eames v. Phipps, id. 418, 421. Sounerbye v. Arden, 1 Johns. Ch. R. 340. Cook’s 
        
        adm’r v. Hendricks, 4 Monroe, 503. Raymond v. Smith, 5 Conn. Rep. 559. Doe ex dem. Garnons v. Knight, 8 Dowl. & Ryl. 348, 364, 5. Chess v. Chess, 1 Pennsylv. Rep. 32. McKinney v. Rhoades, 5 Watts’ Rep. 344. Burns v. Hatch, 3 N. Hamp. Rep. 304. Daniel v. Bratton, 1 Dana, 210. Church v. Gilman, 15 Wend. 646. Inlow v. The Commonwealth, 6 Monroe, 74, A deed may be delivered by depositing it in the post office, directed to the party for whom, it was made. M’Kinney v. Rhoades, 5 Watts’ Rep. 343, Or, by depositing it in the proper office to be recorded as an executed deed, if accepted afterward by the grantee. Frisbie v. McCarty, 1 Stewart & Porter, 61. See Daniel v. Bratton, 1 Dana’s Rep. 210. But a deed signed, sealed and deposited, to be kept or hejd by the depositee, subject to the order of the depositor, is not delivered, either actually or constructively; on the contrary, the terms of the deposit exclude the idea of a delivery. Alsop v. Swathel, 7 Conn. Rep. 500.” Cowen & Hill’s Notes to 1 Phil. Ev. 1281, 1282, 1284;
     
      
      
         Graham on New Trials, 368.
     