I concur in affirming the judgment, but not for the reason assigned. The second of the additional pleas alleges a delivery as an escrow to Harrison, without shewing that he was one of the obligees; to this plea there was a general replication, upon which issue was joined; and upon that issue, as well as on the others, there was a verdict for the defendant. The fact that Harrison was an obligee, came out in the evidence at the trial. But there was no exception to the refusal *494of the court to grant a new trial. And even if the evidence could be looked into, the same evidence which shewed that Harrison was an obligee, shewed also that the parties did not contemplate the delivery of the instrument as a deed. Under such circumstances, the court, in the proper exercise of its discretion, would have been ' justified in refusing a new trial. On this ground, I am for affirming the judgment.
Judgment affirmed.