¶1The 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.
¶2In this opinion the other Judges severally concurred, except Goddard and Hosmer, Js. who declined acting, having been concerned as counsel in the cause.
¶3New trial, not to be granted.