
    [Philadelphia,
    March 29, 1827.]
    STEEL and another against TUTTLE.
    
    IN ERROR.
    A. assigned his estate by indenture, dated the 28th of March, 1823, to B. C. and D., in trust, in the first place, and before any other debts due, or -which might be due by him to any person whatsoever, fully to pay and satisfy B. for any claim he then had, or thereafter might have on A. for any debt due to him, and to indemnify B. against any and every responsibility he then was, or might be under, for or on account of any promissory notes given or indorsed by B. for the use, benefit, or advantage of A. It was provided by the assignment, “ that no one of the creditors of A., nor should any one having claims on him, have, receive, take, or enjoy, any part of the estate assigned, unless such creditor or person should, within three months after the execucution of the said assignment, euh! notice thereof in two daily papers of the city of Philadelphia, execute aim deliver to A. a general release of all claims against him.” The assignment also contained a general power of attorney to the assignees, for the purpose of enabling them to execute the trusts created by the assignment, and to collect the estate, &c. B. C. and D. were parties to, and executed the indenture. B., previous to the date of the assignment, had drawn and indorsed several promissory notes for A’s. áccommodation, which were due and protested, but not-paid within three months from the date of the assignment; and, subsequent to that period, B., C., and D. by indenture assigned the trust estate to E. and F. upon the trusts of the indenture of March 28th, 1823. B., on the 23d of June, 1823, went to the office of his counsel, and there in his presence, and that of two of his students, executed one of three general releases, prepared by the counsel of A., at the time of preparing the original assignment, and delivered to each assignee. To the execution of the release one of the students was a subscribing witness; but B., instead of delivering the release to any one, put it in his pocket, and left the office with it in his possession. A., who left Philadelphia about the 17th of April, 1823, and went to New Orleans, returned on Sunday, the 30th of June, 1823, and on the following day the release was tendered to him on behalf of B., but he refused to receive it, and it was restored to the possession of, and remained with B.: Held, that there was sufficient evidence for the jury to find that the release of B. was delivered, and that he was entitled to recover from E. and F. in an action for money had and received, the amount of the notes he had drawn and indorsed for the accommodation of A., having paid the samp before he brought his action, though he had not paid them before he executed the release.
    This was a writ of error to the District Court for the city and county of Philadelphia.
    
    The action in ¿he court below was assumpsit for money had and received by Edward Tuttle against Steel and Williams, the plaintiffs in error, and was entered' by agreement bearing date and filed on the 10th of September, 1824, to September Term, 1824. At the trial, it appeared from the evidence on the part of the plaintiff, that by indenture bearing date the 28th of March, 1S23, Thomas Williams made an assignment , of all his estate to Edivard Tuttle, Benjamin Allen, and Enoch Mudge, in trust, in the first place, and before any other deb.ts due, or which may be due by the said Thomas Williams, to any person whatsoever, fully to pay and satisfy Edward Tuttle, or his assigns, for any claim he now has, or hereafter may have, on the said Thomas Williams, for any debt due to him, and to indemnify the said Edward Tuttle against any and every responsibility he is or ma)' be under, for or on account of any promissory notes given or indorsed by him for the use or benefit or advantage of the said Thomas Williams.” It was also provided, “that no one of the creditors of the said Thomas Williams, nor should any one having claims on him, have ór receive, take,or enjoy, any part of the property, or the proceeds thereof thereby assigned and transferred to the said Tuttle, Mien, and Mudge, unless such creditor or person having such claim should within three months after the execution of the said assignment, and notice thereof in two of the daily newspapers of the city of Philadelphia, make, execute, and deliver to the said Thomas Williams a full and complete release of all and every claim and demand, action or cause of action, existing before the execution of the said assignment.” And for the purpose of enabling the assignees to execute the trusts created by the assignment, and to collect and obtain all the property, &c. assigned, Thomas Williams, the assignor, constituted the assignees' his attorneys in the premises, giving them, and the survivor of them, full power to do all acts and things which might be necessary and requisite in the premises, and covenanted to ratify all their acts. The indenture was executed by Thomas Williams, and also by the assignees, each one having sealed and delivered it.
    On the 2d of July, 1822, Edward Tuttle, Benjamin Mien, and Enoch Mudge, by indenture indorsed on the assignment of March 28th, 1823, assigned the trust property to Thomas Steel and Samuel Williams, in trust to execute the trusts mentioned and set forth in the indenture of the 28th of March, 1823. The consideration of the assignment to Steel and Williams was expressed to be, their “ having agreed to take upon themselves the performance of the trusts mentioned and set forth in the assignment of Thomas Williams of the date of March 28th, 1823, and of the sum of one dollar.”
    Previous to the 23d of March, 1823, Edward Tuttle had lent to Thomas Williams, his promissory note, dated the 10th of October, 1S22, at four months, for five hundred and thirty-five* dollars and forty cents, drawn in favour of Williams, and his promissory note, dated the 12th of October, 1822, at four months, for five hundred and twenty-eight dollars and ninety-eight cents, drawn in favour of Kinsman and Wright. These two notes were given by Tuttle for the accommodation of Williams, who in his receipt given for them to Tuttle promised to provide funds to take them up at maturity, but neglected or failed so to do. In addition to the last mentioned notes, Tuttle had indorsed Williams’s notes, dated the 11th of November, 1822, at four months, for four hundred and fifty-seven dollars and seventy-eight cents, and the 7th of December, 1822, at four months, for four hundred and nineteen dollars and sixty-nine cents, which were indorsed to enable Williams to raise money for his own use, and he gave Tuttle two receipts for the sums raised by discounting them, stating'them to have been discounted for his use. All these notes were discounted by Stephen Girard of the city of Philadelphia, banker, who was the holder of them, on the 28th of March, 1S23.
    It was also proved, that at the time the original assignment of the 28th of March,1823, was drawn, three general releases, in accordance with the provision to that effect contained in it, were prepared by the counsel who prepared the assignment, who was the counsel of Williams, of which one was delivered to each of the first assignees, Tuttle, Allen, and Mudge. On the 23d of June, 1823, Tuttle went to-the office of Mr. Kittera, his counsel, and executed in the presence of Mr. Kittera, and two of his students, one of whom was a .subscribing witness, the release which had been prepared and delivered to him by the counsel of Williams. Previous to the execution of the release, Mr. Kittera filled two blanks in it with the words “ twenty-third,” and ‘‘June,” thereby completing the date; and Tuttle, after executing it, put the release in his pocket, and left the office with it in his possession. The handwriting of the subscribing witness was proved,'he being absent from the state.
    
      ThomcitS Williams left Philadelphia for New Orleans a few days before the 17th of April, 1823, and did not return until the 30th of June of the same year, which was Sunday. On Monday, the 1st of July, 1823, the next day after Williams's arrival in Philadelphia, the agent of Tuttle called upon him, and tendered him the release executed' by Tuttle on the 23d oí June, 1823, but he refused to receive it. The agent received the release from Tuttle for the purpose of tendering it by his direction to Williams for acceptance, and upon his refusal returned it to Tuttle.
    
    After the foregoing evidence on the part of the plaintiff had been given, his counsel offered to read the release, which was objected to on the part of the defendants, upon the ground that there had been no delivery of it; but the court overruled the objection, and permitted the release to be read to the jury, and the defendant tendered a bill of exceptions, which was sealed by the court.
    It was admitted on the part of the plaintiff, that none of the notes discounted by Stephen Girard, and which had been di'awn, and indorsed by Tuttle for the accommodation of Thomas Williams, were paid by Tuttle on the 1st of Judy, 1823, though they were due, and protested for non payment at the proper period; but suits having been brought, judgments were recovered against Tuttle by Girard upon the notes, executions issued, and the amounts of them all paid before the institution of the action against Thomas Steel and Samuel Williams.
    
    
      The defendants gave in evidence,—1. A general release executed by all the creditors claiming a benefit undea the assignment of Thomas Williams of the 23d of March, 1823, except Edward Tuttle, within the period of three months from its date; being the release which had been delivered to Enoch Mudge, and had remained in his possession. 2. Certain advertisements in two of the daily newspapers in the city of Philadelphia, giving notice to creditors that a release was ready in the hands of Mudge, and that he was the acting assignee of Thomas Williams. 3. Three letters written in February, 1823, by Tuttle to John D. Ferguson, then at New-Orleans, stating his difficulties, and inclosing a draft upon Ferguson for 4,500 dollars, to be accepted by' Ferguson, and held by him to cover the money and property of Tuttle in Ferguson’s hands from attachment by any creditor.of Tuttle. 4. The deposition of Ferguson, showing that the money and goods of Tuttle, in his hands, were short of the amount of 4,500 dollars drawn for.
    Judge Barnes, before whom the cause was tried, charged the jury as follows:—
    “ Delivery is essential to a deed. There may be a delivery by words without acts, or by acts without words.- I shall put the case to the jury upon the mere question of intention. If Tuttle went to Mr. Kittera’s office for the purpose of executing a release according to the provisions of the assignment, ánd, with the full intent of absolutely releasing Thomas Williams, and taking under his assignment, executed the paper in question on the 23d of June, 1823, with the intention that such execution so made, without other or further act to be done, should be a complete and effectual release of Thomas Williams, no formal act of delivery was necessary; such execution under the circumstances amounting to a delivery in law. Williams was absent on a journey to New-Orleans until the last of June, or first of July: an actual delivery, therefore, could not be made or tendered to him on the 23d of June; nor is it necessary that there should have been such delivery, or tender, either to Williams, or to a third person for his use. The offer of the release to Williams, on his return from New-Orleans, was doing all that the law required of Tuttle; nor is the fact, that after the execution of the release, Tittle took it, and kept possession of it until Williams’s return on the first of July, 1823, otherwise material than as a circumstance for the jury, upon the question of Tuttle’s intention at the time of its execution. If the execution of the release was intended to be complete, and was complete, on the 23d of June, Tuttle could not countermand it; and if incomplete, he was not in time on the first oí July to complete it. Tuttle as assignee of Williams had authority to accept releases from Williams’s creditors; and the very release in question was drafted by Williams’s counsel, and delivered to Tuttle at the time of the assignment, and together with the assign
      ment The fact, that Tuttle was an assignee of Williams, I consider a material circumstance in the cause, and differs his case from that of an ordinary creditor, executing a release in a similar way. I put this part of the case to the jury on the question of fact. As to the notes discounted at Girard’s Bank, and not paid by Tuttle on the first of July, 1823, the defendants object, that he is not entitled to a preference. I, however, instruct the jury in point of law, that he is entitled to a preference for those notes: the fund created by this assignment was for his indemnity against the consequences of responsibilities he had incurred for account of Williams, and he was entitled to the fund to relieve himself from them; it-cannot be denied, that upon all those notes he had incurred, and was under complete legal responsibilities, which he had extinguished previous to bringing this action; being entitled to the fund, therefore, he may support the action to recover it.”
    To this charge the counsel for the defendants excepted, and the court sealed a bill of exceptions.
    The errors assigned in this, court were almost a literal copy of the charge of the court below, almost every word of the charge being excepted to; but in substance they may be.reduced to two points, viz:—
    1. That there was no delivery of- the release of the 23d June, 1823, by Tuttle.
    
    2. That Tuttle was, not entitled to recover for the notes not paid on the first of July, 1823.
    
      B. M‘Ilvaine (and Broome was with him,) for the plaintiffs in error.
    The exceptions are to the whole of the charge. The legal right of Tuttle to recover, depended upon his having executed a release in such a manner as the law recognizes; and his intention to execute a release, without actually doing it, is not sufficient. Pierpont v. Graham, C. C. Penn. Dist. April, 1820, M. S. Whart. Dig. 179, No. 82. Where the grantee is absent, there must be a delivery to some third person for his use. As essential as sealing is to constitute a deed, delivery is no less so; -though it may be to a third person, and actual or verbal. Sheph. Touch. 56, 57. Ch. 4. Perk. s. 137. Sowell settled is this principle, that putting a deed upon record does not amount to a delivery. Maynard v. Maynard, 10 Mass. Rep. 556. Jackson v. Phipps, 12 Johns. Rep. 421. The whole doctrine of delivery is to be found in Verplank v. Sterry, 12, Johns. Rep. 636, and the cases there cited. In the present case there was no delivery to the grantee himselfi, and if it be objected, that by his own act he had rendered it impossible, the answer is, that it might have been delivered to Mudge for his use; and by so doing, all chance of improper dealing with it, as circumstances might induce him, would have been avoided. Tuttle, however, kept it in his own pocket, and in his own power; and unless such a course be discountenanced by the courts, fraud will be the necessary consequence. In this case the strong objection is, that Tuttle created a paper to be used or not, as occasion required.
    There was no discussion, or argument, as to the right of Tuttle to recover, founded upon the objection that the notes were unpaid on the first of July, 1S23.
    
      Ingraham, for the defendant in error.
    The release of Tuttle bore upon its face all the marks of a deed regularly executed^ It had a seal, the signature of Tuttle, and of a witness; in whose presence it was stated in the usual terms to have been sealed and delivered. A foundation was laid for its going to the jury, by proof of the circumstances under which the three releases were prepared, and by proving the hand-writing of the subscribing witness, who was absent. This proof was alone sufficient to submit the deed to the jury, and from it, and the rest of the testimony, they had a right to presume a delivery, the essential ingredient of which is the intention of the party, without which, neither words nor acts, however solemn, a,re binding upon a jury. The error of the argument on the opposite side, consists in supposing, that the jury had no right, from facts proved, to presume the delivery of a deed. But the law is not so; the question properly being, whether the evidence is sufficient to go to the, jury at all, for if there be no subscribing witness, the jury may infer the delivery from proof of the hand-writing of the grantor. Formal delivery is never required to be proved; but any act evincing the intention is sufficient. Goodrich v. Walker, 1 Johns. Ca. 250; and even words, alone have been held sufficient, as being evidence of intention; nor is the doctrine new, that from the circumstances attending a particular case, a jury have a right to presume the delivery of a deed. Goodright v. Straphan, Cowp. 210. Evans v. Evans, 3 Yeates, 507; the last of which affords the strongest possible illustration of the principle. In Shelton’s Case, Cro. Eliz. 7, a deed was sealed in the presence of divers, and of the grantee himself, but not delivered, nor did the grantee take it, but it was left behind in the same place, yet it was held to be a good delivery in law. And in Pigott v. Holloway, 1 Bin. 436, the witness said, he knew nothing of the execution of the deed, but that his name was subscribed to it in his own hand-writing, and from that, and other circumstances, he drew the conclusion that he must have witnessed its execution; the jury presumed a delivery in that case, though, as in this, there was an effort made to prevent their passing upon the question at all; the objection there, as here, being, that the execution was not sufficiently proved to goto the jury. The case of Benn v. Mason, 1 Coxe's N. J. Rep. 10, is very similar to- Pigott v. Holloway. The presence of the grantee was not deemed necessary in Smith v. The Bank of Washington, 5 Serg. & Rawle, 318.
    [Tilghman, C. J. Is there any case in which it has been left to a jury to presume a delivery, where the grantor retained the custody of the deed himself; because in the last case cited it was delivered to the cashier for the daughter’s use ?]
    The case of Gardner v. Collins, tried before Judge Stork, in 1824, in the Circuit Court, (since reported, 3 Mason’s Sep. 398,) involved the very point; and though one of the grantors retained the custody of the deed, and the grantee was not present, nor any one on his behalf, yet the jury, upon its being left to them as a question of fact, presumed a delivery. But there is no occasion to go so far to support the release in this case; for Tultlg was, as assignee, the attorney-of Williams, by express appointment authorized “ to do all acts necessary in the premises,” one of the most essential of which, for Williams’s interest, was the acceptance of a release to him. -If this view of the case be correct, the charge was too favourable to the defendants below ; for the question was put to the jury, as to the .intention of Tuttle in such a way, as to place the bonajides of any secret view he might have had in the transaction, too exclusively, perhaps, before them. The true view of the question was, could Tuttle have got rid of this release, after executing it in the presence of three witnesses, one of whom subscribed the paper, the existence of which was known also to the counsel who prepared it? Uncertainly could not be heard to say, there was no execution, as against any one to be benefited by his act. Lord Eldon, (19 Ves. 295,) cites the opinion oí Lord Mansfield, that where one has put his name to a sealed paper, he is estopped from denying its delivery. Pierpont v. Graham has no bearing whatever on this case. The question there was, whether the creditor was entitled to relief in equity, having in proper time offered to execute a release which ,the. trustee had promised to have prepared, but which was not prepared; no question certainly as to-execution, could arise in relation to a paper which never had existence; and the creditor clearly could not found an equity upon his own laches, it being his duty to prepare and execute the release, if he wished the benefit of it; and his own fault if he let the time pass by without executing any release at all.
    
      
       For this case the Reporters are indebted to E. D. Ingraham, Esq.
    
   The opinion of the court was delivered by

Duncan, J.

The only material matter in this cause is, whether there was any evidence of a delivery of the release from Tuttle to Williams, before the expiration of three months from the date of his assignment. Theassignment was dated March, 28th 1823; and the provision was, that none of the creditors “should have or receive any benefit or advantage under the assignment, unless within three months after its execution, and notice thereof for thirty days in two of the daily papers of the city of Philadelphia, they executed and delivered a complete release of all demands, &c. to William#, the assignor.” The assignees were Edward Tuttle, the defendant in error, Enoch Mudge, and Benjamin Mien, who were parties to, and executed the instrument.

The evidence of .delivery, as stated in the paper book, is, that when the assignment was made, there were also three releases prepared by the counsel who drew it, one of which, was delivered to each of the assignees; that Tuttle executed the release which was in his possession on the 23d of June, 1823, in the office of Mr. Kittera, and two of his students, and after the execution of it, put it into his pocket, and went away with it in his possession;-that Williams left the city of Philadelphia for New-Orleans, a few days before the 17th of Jlpril, 1823, and did not return until Sunday the 30th' of June'following; that the said release was; offered on behalf of Tuttle to Williams, on the first of July, 1823, and the latter refused to accept it; that the person who offered it to Williams got it from Tiittle for that purpose, and after the refusal returned it to him. The release of all the creditors claiming under the assignment, except Tuttle, was executed within the three months, and delivered to Mudge, with whom it remained. Notice was given within the thirty days, in the terms prescribed by the assignment, by the terms of which, .Tuttle was the first preferred creditor, but he had not, on the first of July, 1823, paid the notes which were indorsed by him, and discounted by Williams at Girard’s Bank. The part of the charge excepted to, is contained in the second specification of errors assigned; that there was no delivery of the release of the 23d June, 1823; and if there was error in that, the judgment must be reversed. The doctrine as to the proof of the delivery of deeds has much abated in its rigor of late years. Delivery is essential, but it is a matter of fact to be decided by the-jury. The court may decide, and reject the deed if the proof be altogether defective; but they may, and most frequently do, leave it to the jury. Comm. of Berks Co. v. Ross, 3 Binn. 539. At one time it was supposed that a deed could not be good without subscribing witnesses, because the delivery could only be proved by a witness who saw it delivered; but there is no general rule which has so many exceptions as this; for if there be no subscribing witnesses, the hand-writing of the grantor may be pi’oved; or if the subscribing witnesses are dead, or cannot be found, are interested, become infamous, insane, or blind, proof of this hand-writing will be sufficient. The reasoning of the Chief Justice in Long v. Ramsay, 1 Serg. & Rawle, 72, is conclusive. He observes, “that subscribing witnesses of late are not necessary; it is enough if there was a sealing and delivery, and of that the jury were to judge, and upon proof of the hand-writing of the obligor, they may presume the sealing and delivery.” The great difficulty in this case arose from the grantor keeping the deed in his possession; but in deciding questions of evidence, we must look to the subject matter, the situation of the parties, and the object of the deed. The rule has been .relaxed to suit the convenience of mankind. Rules of evidence are continually accommodating themselves to the exigencies of society, and in nothing is this more re-markable, as we have stated, than in the case of proof of deeds. What is-now evidence of delivery, would not have been so fifty years ago. The jury are judges of the fact, of what is probable, and make their own deduction as to the fact of delivery. But even in days of the extreme rigor, no particular form of words or acts was required; for a deed might be delivered to the party himself, or to some stranger, for his use, without his authority; his assent precedent, or assent subsequent, was sufficient. In Shelton’s Case, (Cro. Eliz. 7.) the deed was sealed in the presence of the grantee, but not delivered, nor did the grantee take it, but it was left behind the parties in the same place, yet in the opinion of all the justices, it was a good grant, for the parties came for that purpose, and performed all'that was requisite for the perfecting it, except an actual delivery. So in Alford & Lea’s Case (2 Leon. 110,) Alford brought debt upon a bond against Lea, and the case was, that the parties were bound one to the other, upon condition to stand to the award of B. and C., who awarded, that the said Lea, before such a feast, should make a release to Alford, but no place was assigned where the release should be delivered to the plaintiff. Lea, before the said feast, sealed a release according to the award, and delivered the .samé to one Pine, to the use of the plaintiff, who delivered it to one Mason, one of the servants of Alford, the plaintiff, who; two or three days after, offered it to Alford, who refused to receive it, but it was held, that the award upon this matter was well performed, notwithstanding the refusal of Alford. So Tawe’s Case, Dyer, 167, A. enseals quoddum scriptum obligat. and delivered the same to one C. to deliver it to the obligee, who delivered it accordingly as the deed of A.; the obligee refused to receive it, but afterwards got the obligation, and recovered upon it. If a man throws a writing on a table, and says nothing, and the other party take it up, this does not amount to a delivery, unless it be found that he put it there with an intention to deliver it as his deed, Chamberlain & Staunton’s Case, 1 Leon. 140. Owen, 45. The question was fairly left to the jury, whether the release was executed with a full intent to come in under the assignment, or with a lurking design on the part of Tuttle to use it, or not to use it, according to circumstances. The deed purported to be sealed and delivered, and from that alone the jury might presume, and ought to have presumed a delivery. The circumstance of his keeping the release, was very different from the case of an obligor keeping the bond, for that would be inconsistent with a delivery. There was no one in this case to deliver the release to; for though Williams had bound himself, under his hand and seal, to receive the release, he went to New Orleans; so that it could not be delivered to him, after its execution, within the three months; it was offered to him as soon as he returned, which was a few days after the time had elapsed, and he refused to receive it. The releases, by the terms of assignment; were to be delivered to one of the assignees; each one had authority to receive them; forms were left in their hands by Williams's direction for. this purpose: the releases of the other creditors were delivered to Mudge, one of the assignees, whose own release must have been delivered to himself, and kept by himself; Tuttle was a proper recipient of the release under the assignment, at least, as proper as Mudge. If there is a circumstance by which the will of the obligor appears that, it should be delivered, and the obligee agrees to receive it, and the obligor considers and treats it as a deed delivered, a circumstance by which it shall be known that he treats it as his deed, without condition or explanation, it will be sufficient, and from- it a jury may presume a delivery. • By the trust deed, Williams agreed to receive the release of Tuttle, and that too, under his hand and seal. While the old rule was in force, that none but the witnesses could prove the fact of sealing and delivery, still, when they did nolappear, upon being subpoenaed, and the party produced .an indorsement upon the deed, reciting, that if he paid such a sum, the deed should be void, and acknowledging the said sum was not paid; this acknowledgment was held proof of the deed. Dillon v Crawley, 12 Mod. Rep. 500 If any circumstantial evidence could prove a sealing and delivery, nothing could be stroriger than the circumstances of this case, or better presumptive evidence to á jury of the fact of delivery, and accordingly the jury have found, that Tuttle did bona fide intend by what he had done, to execute the release, and considered it, and treated it, as a release. If he had brought an action against. Williams for his original debt, Williams could have set up this instrument as a release; he could have proved its execution by Tuttle, who would not have been heard, against this public and notorious execution, to allege a mental reservation; and it is npt an immaterial circumstance, that immediately on Williams's return, the release was offered to him; and thereby acting, as he did, in the double relation of trustee and creditor, Tuttle would be estopped to deny it; and it ought to- be presumed to have been left in his custody by mutual consent. The proof would be on Williams to show that this deed, attested by two witnesses, as a deed sealed and delivered in their presence, was not the deed of Tuttle; to prove that there was no delivery, and that it was so understood at the time. An act so public and authentic as this, could not be qualified by any secret mental reservation. Whatever may have been the fact as to the custody of the deed, I do not think that it can alter its operation, provided it was duly delivered in the first instance, so as to'become valid in law. The inquiry into the subsequent history of the release tends to confirm the facts of scaling and delivery; for immediately «pon the return of Williams, the release was offered to him, not by redelivery, or recreation, but as a deed delivered on the day it bore date. In Goodrich v. Walker, 1 Johns. Ca. 550, and Soubervie v. Arden, 1 Johns. Cha. Rep. 240, it was held, that a formal delivery was not essential, if there be any act evincing the intent.

I am therefore of opinion, that under the circumstances of this case, and, keeping in view the particular situation .of the parties, and the'public, authenticated execution of this paper, it was binding on Tuttle, and consequently a release delivered within three months. The charge with respect to the notes discounted at Girard’s Bank was quite right; and in the main, the plaintiffs in error had no just reason to complain of the instruction given to the jury.

Judgment affirmed.

Ro&jeks and Huston, Justices, came upon the Bench after the cause was argued, and therefore gave no opinion,  