The facts well warranted the jury to have presumed the note to have been delivered over to the plaintiff by the assent, and as the act of the defendant. Circumstances may be equivalent to an actual redelivery of a deed. (Cowp. 201.) The note in question, together with other notes given as part of the same consideration, were left with the witness as a trustee for the plaintiff, and to be delivered to the plaintiff, on his performance of the agreement, it was proved .that the defendant had paid the other notes as they successively fell due, and had entered into the possession of the farm for the purchase-money of which the notes were given, and that the title was undisputed; and the present note (being the only one remaining) had been delivered to the plaintiff by .the witness. These facts were evidence that the contingency on which the note was left with the witness had either been fulfilled, or finally dispensed with, by the assent of the parties.
The motion on the part of the defendant ought, therefore, to be denied.
Motion deniedv