
    Wolcott against Coleman.
    THIS was a petition for anew trial on the ground of mispleading. On the trial of the original action, (reported on a motion for a new trial ante 285.) the present petitioner, then defendant, pleaded not guilty, and a verdict was given against him. He now states, that he missed his plea ; as he had a good ground of defence, which, if pleaded, would have saved him from the demand of the plaintiff in that action. 
      Taylor was equally liable with Wolcott to Coleman for such demand, being equally concerned with him in the transaction. Coleman knowing this applied to Taylor, on the 11th of September 1812, and claimed from him the whole amount of damages sustained in consequence of his giving and Wolcott’s receiving the discharge mentioned in the declaration ; which Taylor accordingly paid ; and Coleman, in consideration thereof, executed and delivered to Taylor a general release and discharge.
    
      After verdict and judgement for the the plaintiff, on the issue of not guilty, in action bt C. one of two covenantees, against W. the covenantor, for fraudulently taking and pleading a discharge from T. the other covenantee, the defendant brought a petition for a new trial on the ground of mispleading when he had a good defence, consisting of a general deed of release from C. to T., who was a joint tort-feasor with W. It appeared, that C., wishing to obtain the deposition of T. to be used in said suit against W. then about to be commenced, agreed with T. to give him a release of all demands to take effect after the final determination of said suit ; and accordingly wrote, signed and sealed such release, and left it upon the table with other papers ; that T. wrote his deposition, and then took up and carried away the release ; and that about two months afterwards, T. made oath to his deposition, and lodged the release in the hands of B., there to remain until the final determination of said suit, and then to be delivered by B. to T. Held that such release was an escrow, lodged in the hands of B. to hold until the final determination of said suit, and then to deliver it to T., from which delivery alone it would take effect; and, of course, W. could never avail himself of it by way of defence to said suit.
    
      
      Hartford,
    
    November, 1815.
    The respondent in his answer denied the truth of the facts stated in the petition. The parties then proceeded to a hearing before the superior court ; but the evidence being all in writing, it was agreed that the case should be reserved with the exhibits for the advice of the nine Judges.
    There were two depositions of Taylor. The first was as follows : “ On the 19th of November 1814, I called on Isaac C. Bates, Esq. of Northampton, and informed him, that I had understood from good authority that the motion for a new trial in the case of William Coleman against Alexander Wolcott had been decided against Wolcott, and that according to the terms of agreement between Coleman and myself, a release of all demands from Coleman to me, dated September 11th, 1812, and which was left by me in the hands of Bates as an escrow to abide the event of the trial between Coleman and Wolcott, ought then to be delivered to me. Bates replied to me, that he had been instructed by Coleman not to let that release go out of his hands without consulting him ; and that he could not comply until he had consulted Coleman, which he engaged to do immediately ; and if Coleman had no objections, he would hand the discharge to me. He has not since handed it to me, or said any thing to me on the subject. It is in the hand-writing of Coleman, and under seal. Its contents are better described, as well as the terms upon which it was to rest in Bates’s hands, by the receipt which he gave me at the time it was left in his hands, than I could otherwise do from memory ; and for that purpose I annex it to this deposition. It was left with Bates, at the request of Coleman, sometime after it was executed and delivered to me, to prevent its operation in bar of Coleman’s action against Wolcott." Bates’s receipt. “ Received of John Taylor, a discharge from Coleman to him of all actions, causes of action, or demands whatsoever, either in law or 
      equity, dated September 11th, 1812 ; which discharge I am by agreement to retain in my hands until the termination of said Coleman’s suit against Alexander Wolcott in contemplation at the time said discharge was signed, and now actually commenced, as an escrow, to hate no operation whatsoever ; and at the termination of said suit, I am to deliver the same discharge to said Taylor, whatever may be the event thereof, to have from that time full force, operation and effect. November 23rd, 1812, Isaac C. Bates.”
    
    
      Taylor’s second deposition relates to the same transaction. It begins the history farther back, and contains some particulars omitted in the other. The following is extracted. “ In the month of September 1812, Coleman applied to me for a deposition in his suit against Wolcott. I objected to if, and offered Coleman, if he would not press me to give a deposition, that I would neither give one to Wolcott, nor appear to testify in court. But I yielded to his importunity, upon a promise on his part to give me a discharge in full of all claims either in law or equity. Such a discharge was written by Coleman, and either handed to me by him, or laid on the table, to be taken as soon as the deposition which then only wanted being sworn to, was completed. I went to dine, and was to meet Coleman at 3 o’clock at the same place. I went there, and tarried about half an hour, and then went away, Coleman not appearing as I expected. The discharge I had in my possession when I left the room where the deposition was prepared : and it continued in my possession until November 23rd, 1812. I never had any condition named to me of its being placed in the hands of third person, or of having it lie as an escrow, until that time ; when I swore to the deposition.”
    
      Bates’s deposition. “ On the 11th of September 1812, Coleman was at Northampton for the purpose of procuring the depositions of sundry persons, and among others the deposition of Taylor to be used in his suit against Wolcott. Coleman and Taylor came to my office where they had a conversation in relation to that cause, and the facts to which it was supposed Taylor could testify, and the necessity of obtaining his deposition to disclose and prove them. Taylor expressed a reluctance at giving his deposition, or in any way meddling with said suit, and a wish to be freed as well from the present embarrassment as the consequences of the transaction out of which that suit grew ; and remarked, either that Wolcott had given, or had engaged In give him, a discharge or release therefrom. Coleman observed, that whatever might be the event of that suit, he had no disposition to resort to him, Taylor, for any further remedy ; that his reliance was upon Wolcott ; and that he had no objection to give him, Taylor, a release, if he desired it, to take effect after the final determination of his suit against Wolcott ; and thereupon he wrote, and signed and sealed a release, which I attested, in the words and figures following, viz. 'Know all men by these presents, that I William Coleman of New-York, do hereby, for myself, my heirs, executors and administrators, remise, release and forever quit-claim unto John Taylor of Northampton, his heirs, executors, or administrators, all actions, causes of actions or demands whatsoever, either in law or equity, which against the said John Taylor I ever had, or now have, by reason of any act or cause from the beginning of the world to this day. In witness whereof, I have hereunto set my hand and seal this 11th of September, 1812.
    Attest. I. C. Bates. William Coleman.' [L. S.]
    This deed of release lay upon the table among other papers until the close of the conversation, when Taylor read it, and put it in his pocket. Some time afterwards, I called upon Taylor, in behalf of Coleman, and told him he ought not to retain that deed, nor to have taken it ; that I would see it delivered to him whenever the event happened upon which it was intended take effect ; that as it was intended as an escrow, it was obviously proper it should remain in some other hands than his own ; to which he readily assented, and delivered me the deed. And to guard against uncertainty and accident, I proposed to give, and did give him a receipt or memorandum in writing, expressing, as nearly as I can recollect, the original intention of Coleman and Taylor in relation to said deed, and my engagement to carry that intention into effect. I then took the deed and now retain it, to be delivered to Taylor whenever said suit shall be finally settled, and not before ; for which deed no consideration was paid or suggested at the time it was made, or at any other time, to my knowledge ; nor were any damages, on any account whatever, claimed or demanded by Coleman of Taylor ; but said deed was, on the part of Coleman, a gratuitous act, done under the circumstances I have herein before detailed.”
    There were two other depositions proving that Taylor read Bates’s deposition before it was sworn to ; and being asked whether it was correct, said it was, except one word, which Bates, not conceiving it to he material, immediately erased.
    It appeared, that Wolcott’s counsel advised him to try his cause on the plea of not guilty, though they were apprized of Coleman’s deed of release to Taylor.
    
    
      Daggett and N. Smith for the petitioner.
    If it appears that Wolcott had a good defence, which he failed to make use of, from having missed his plea, a new trial will be granted. The superior and county courts are expressly authorized by statue,  to grant new trials of causes that shall come before them, for mispleading. This is a provision of law essential to the due administration of justice where double pleading is allowed.
    
    In support of the general proposition, that Wolcott had a good defence, they contended, 1. That a release to one of two trespassers or tort-feasors is a release of the trespass or tort, and shall enure to the benefit of both. If Coleman had received of Taylor all the damage which he claims to have sustained, he must clearly be barred of a recovery against Wolcott.
    
    2. That a release by deed is conclusive evidence of a full satisfaction. 5 Co. 117. b. 118. a. Co. Litt. 212. b.
    
    3. That this release operated from the delivery to Taylor on the 11th of September 1812. From that time until the 23d of November 1812, it was in Taylor’s hands, and was unconditional. It took effect immediately ; and its operation could not be defeated as to Wolcott by any subsequent transaction between Coleman and Taylor.
    
    
      4. That if the release had been delivered to Bates in the first instance, and had never been in Taylor’s hands ; yet as it was to be delivered to Taylor on the happening of an event which certainly must take place, and Bates was a trustee of it for this purpose, it was the absolute deed of Coleman, and will be considered after the event as taking effect, by relation, from the time of the first delivery. Belden v. Carter, 4 Day’s Ca. 66.
    5. That the tort complained of was the joint act of Wolcott and Taylor
    
    
      R. M. Sherman and Staples for the respondent,
    contended, 1. That where a party has chosen his defence, and gone to trial upon facts adapted to that defence, he is not entitled to a new trial, on the ground that he might have, made out a different defence by other facts. A new trial for mispleading is to be granted only where the form of pleading is not adapted to the facts constituting the defence. It is no ground for a new trial that a party has missed his defence. Vernon & al. v. Hankey & al., 2 Term Rep. 113, 120. 6 Bac. Abr. 671. (Wils. edit.)
    2. That where the verdict is agreeable to the equity and justice of the case, the court will not grant a new trial to let the party into a technical defence. Wilkinson v. Payne, 4 Term Rep. 468, 470. Edmondson v. Machell, 2 Term Rep. 4. Smith v. Page, 2 Salk. 644. Deerly v. Duchess of Mazarine, 2 Salk. 646. King v. Alberton, 3 Salk. 361. Gist v. Mason & al., 1 Term Rep. 84. Cox v. Kitchin, 1 Bos. & Pull. 338. Berton v. Thompson, 2 Burr. 664. The petitioner admits that he was guilty of the fraud alleged against him ; that ho has got Coleman’s money, and refuses to pay it over. A new trial would only tend to defeat justice.
    3. That the petitioner has not shewn a good defence. First, because the release was never delivered by Coleman, and therefore it is not his deed. Shep. Touch. 58. n. [1]. Secondly, because it was at most an escrow, which takes effect only from the second delivery. Perk. 60. pl. 137. Shep. Touch. 58, 59. 2 Mass. Rep. 452. The event on which the release was to be delivered over, has not taken place ; this petition being a continuation of the suit. Thirdly, because admitting the deed to have been absolute, or to have become so, yet it does not discharge Wolcott. He and Taylor were not joint tort-feasors. The gist of the action against Wolcott is pleading the discharge. Taylor might have acted innocently. At any rate, it does not appear that, he was guilty of any fraud, or that Coleman could sustain any action against him.
    
      
      
        Tit. 6. c. 1, s. 13.
    
    
      
       Our statute allowing double pleading, was passed after the trial of this cause in the superior court.
    
   Swift, Ch. J.

The question in this case is, whether the discharge from Coleman to Taylor was delivered, or whether it was an escrow. It appears from the evidence stated, that Coleman agreed with Taylor to give him a release of all demands to take effect after the final termination of his suit against Wolcott ; and that Taylor agreed to give his deposition to be used in that suit. Coleman, executed the release, and laid it on the table. Taylor completed his deposition, excepting making oath to the truth of it, and then took the release without delivery to him. At a subsequent period, Taylor, according to the original agreement with Coleman, completed and made oath to his deposition, and then consented that the release should be lodged in the hands of I. C. Bates, Esq. there to remain till the final termination of the suit of Coleman against Wolcott, and then to be delivered by Bates to Taylor. The legal effect of this transaction was, that the release was an escrow, to take effect on the happening of a certain event, and was lodged in the hands of Bates to hold till that event should happen, and then he was to deliver it to Taylor ; from which delivery it was to take effect. The event on which the release was to take effect and be delivered, was the termination of the suit of Coleman against Wolcott; hut this very petition proves that this suit has not terminated, and is now pending. If a new trial should be granted because Coleman had given this release to Taylor, it would not be competent for Wolcott to plead it in bar of the suit ; for it was to have no operation, and was not to be delivered, till the termination of the suit. The event then not having happened on which it was to take effect, the release continues to be an escrow in the hands of Bates, without any legal operation whatever ; of course, Wolcott could not avail himself of it, if a new trial was to be granted.

In this opinion the other Judges severally concurred, except Goddard and Hosmer, Js. who declined acting, having been concerned as counsel in the cause.

New trial, not to be granted.  