Wilde J.
delivered the opinion of the Court. This bill is founded on the Revised Stat. c. 81, § 8, and is brought to compel the defendants, or one of them, to re-deliver a certain deed and note of hand to the plaintiff, which he claims as his property, and which he avers have been taken from him, and secreted or withheld, so that the same cannot be replevied.
It is admitted by Mr. Quincy, one of the respondents, that the deed and notes mentioned in the bill were deposited in his hands by Mills, one of the plaintiffs, and by Gore, one of the defendants ; that afterwards Gore, in the presence of Mills, requested Quincy to deliver the deed to him, Gore, and that Mills objecting, he informed them, that if they would agree what he should do, he would comply, but if not, he would keep the papers till the Supreme Judicial Court directed him, Quincy, what to do with them. He also admits, that afterwards, and before the filing of the plaintiff’s bill, Mills demanded in writing of him the delivery of the deed and one of the notes, and that he did not comply with that demand.
These facts being admitted, we cannot entertain a douot as to the question of jurisdiction. The demand of the papers and the refusal to deliver them, conclusively prove that they have been detained and withheld within the meaning of the statute. The plaintiffs were not bound to.try an experiment, which might prove ineffectual, by suing out a writ of replevin and causing a new demand to be made by an officer ; as was decided in Gibbens v. Peeler, 8 Pick. 254, a case similar to this in most respects, though in one particular this case is much stronger for the plaintiffs. There it was proved that the defendant gave express notice to the plaintiff, that he should hold the notes then in question, subject to a suit of replevin. In this case no such notice was given. On the contrary, Mr. Quincy claimed to withhold the papers until he should be directed what to do by this Court.
[34]*34The general question on the merits is, whether the plain tiffs have such a property in the deed and note signed and executed by the respondent Gore, as to entitle them to maintain this action.
The defendants maintain that these papers were never delivered ; and that if they were, they were obtained by the fraudulent misrepresentations of the plaintiff Mills, and the concealment of material facts, which he was bound to disclose.
The question of the delivery of the deed depends principally upon the disclosures contained in the answer of the respondent Gore. For although the facts stated by him are not inconsistent with the other evidence in the case, yet his answer, if admitted to be true, rebuts an important inference, which, without it, might perhaps be made from the facts stated by tbe witnesses on the part of the plaintiffs. It is objected that this answer is not evidence for the defendant Quincy. It is, however, admitted that no adjudged case has been found sustaining this objection ; and we are not aware of any rule of evidence, or principle of equity by which it can be supported. An answer of one defendant is not evidence against a co-defendant, for the plaintiff may so frame his bill and interrogatories, as to elicit evidence from one defendant to charge another, and to exclude such matters as might discharge him. To admit the answer of the one to be evidence against the other, under such circumstances, and when cross-interrogatories could not be admitted, would give to the plaintiff an undue advantage, against the manifest principles of impartial justice. But where the answer is unfavorable to the plaintiff, and consequently operates favorably for a co-defendant, this reason is not applica' le. Where the plaintiffs call upon a defendant for a discovery, requiring him to answ'er under oath fully to all the matters charged in the bill, they cannot be allowed to say that his answer is not testimony. And so was the decision in Field v. Holland, 6 Cranch, 8. In that case it was held that the answer of Cox, one of the defendants, was not evidence against the other defendant, Holland, but that being responsive to the bill it was evidence against the plaintiff. And besides, in the present case, the respondent Quincy has a right to de [35]*35fend himself under the title of Gore. He is but a depositary of the papers, and became such at the request of both parties. He has no interest in the question, but is bound to deliver the papers to the party having the title. The question of title is between the plaintiffs and the defendant Gore, and Gore’s answer, being evidence for him in support of his title, is consequentially evidence for the other defendant. So that in whatever point of view the objection may be considered, we think it quite clear that the answer in question, so far as it is responsive to the bill, is evidence to be weighed and considered ; and that it is to be taken to be true, unless it is contradicted by more than one witness, or by one witness supported by corroborating circumstances, according to the general rule of equity. The answer in all respects, in relation to the question as to the delivery of the deed and note, is directly responsive to the allegations in the bill, and it expressly ienies that the deed and note were ever delivered to the plaintiff Mills, as charged in the bill.
We are then to consider, (and this is the principal ques lion,) whether the evidence on the part of the plaintiffs be sufficient to disprove the, material facts as alleged in the an sxver.
Jonathan D. Wheeler, one of the attesting witnesses to the execution of the deed, testifies that he saw Gore sign the deed, and that he and Luke Harrington subscribed their names as witnesses ; that Gore, who was standing by the side of Mills at a desk, took up the deed after signing it, put it before Mills on the desk, and remarked, “ there is no go back from that ; ’’ that this was before Wheeler and Harrington had subscribed their names as witnesses ; that soon after subscribing his name, he (Wheeler) left the counting-room, leaving Mills and Gore writing, and the deed remaining on the desk before them. Luke Harrington, the other subscribing witness, testifies substantially to the same facts.
The plaintiff’s counsel rely on the testimony of these witnesses, and on the possession of the deed by the plaintiff Mills, as good and sufficient evidence of a delivery, and consequently as contradictory to the denial and ansxver of the defendant Gore in this particular This evidence unexplainec [36]*36would undoubtedly be sufficient proof of a delivery ; and so would the possession of the deed by Mills alone, if unaccounted for, be good prima facie evidence of a delivery. But the question in this case is not, whether the plaintiffs have produced sufficient prima fucie or presumptive proof of a delivery, but whether the plaintiffs have proved the fact by direct testimony. There is no proof of a delivery of the deed into the hands of Mills ; but a deed may be delivered to a party by words without any act of delivery, as if the writing sealed lieth on the table, and the feoffor or obligor saith to the feoffee or obligee, go and take up the writing, it is sufficient for you, or it will serve the turn, or take it as my deed, or the like words, it is a sufficient delivery. Co. Lit. 36 ; Com. Dig. Fait, A 3 ; 4 Stark. Ev. 477. If however a party throws a writing on a table and says nothing, and the other party takes it up, this does not amount to a delivery, unless it be found to be put there with the intent to be delivered to the party, or to be taken up by him. Com. Dig. Fait, A 4 ;
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Wilde J.
delivered the opinion of the Court. This bill is founded on the Revised Stat. c. 81, § 8, and is brought to compel the defendants, or one of them, to re-deliver a certain deed and note of hand to the plaintiff, which he claims as his property, and which he avers have been taken from him, and secreted or withheld, so that the same cannot be replevied.
It is admitted by Mr. Quincy, one of the respondents, that the deed and notes mentioned in the bill were deposited in his hands by Mills, one of the plaintiffs, and by Gore, one of the defendants ; that afterwards Gore, in the presence of Mills, requested Quincy to deliver the deed to him, Gore, and that Mills objecting, he informed them, that if they would agree what he should do, he would comply, but if not, he would keep the papers till the Supreme Judicial Court directed him, Quincy, what to do with them. He also admits, that afterwards, and before the filing of the plaintiff’s bill, Mills demanded in writing of him the delivery of the deed and one of the notes, and that he did not comply with that demand.
These facts being admitted, we cannot entertain a douot as to the question of jurisdiction. The demand of the papers and the refusal to deliver them, conclusively prove that they have been detained and withheld within the meaning of the statute. The plaintiffs were not bound to.try an experiment, which might prove ineffectual, by suing out a writ of replevin and causing a new demand to be made by an officer ; as was decided in Gibbens v. Peeler, 8 Pick. 254, a case similar to this in most respects, though in one particular this case is much stronger for the plaintiffs. There it was proved that the defendant gave express notice to the plaintiff, that he should hold the notes then in question, subject to a suit of replevin. In this case no such notice was given. On the contrary, Mr. Quincy claimed to withhold the papers until he should be directed what to do by this Court.
[34]*34The general question on the merits is, whether the plain tiffs have such a property in the deed and note signed and executed by the respondent Gore, as to entitle them to maintain this action.
The defendants maintain that these papers were never delivered ; and that if they were, they were obtained by the fraudulent misrepresentations of the plaintiff Mills, and the concealment of material facts, which he was bound to disclose.
The question of the delivery of the deed depends principally upon the disclosures contained in the answer of the respondent Gore. For although the facts stated by him are not inconsistent with the other evidence in the case, yet his answer, if admitted to be true, rebuts an important inference, which, without it, might perhaps be made from the facts stated by tbe witnesses on the part of the plaintiffs. It is objected that this answer is not evidence for the defendant Quincy. It is, however, admitted that no adjudged case has been found sustaining this objection ; and we are not aware of any rule of evidence, or principle of equity by which it can be supported. An answer of one defendant is not evidence against a co-defendant, for the plaintiff may so frame his bill and interrogatories, as to elicit evidence from one defendant to charge another, and to exclude such matters as might discharge him. To admit the answer of the one to be evidence against the other, under such circumstances, and when cross-interrogatories could not be admitted, would give to the plaintiff an undue advantage, against the manifest principles of impartial justice. But where the answer is unfavorable to the plaintiff, and consequently operates favorably for a co-defendant, this reason is not applica' le. Where the plaintiffs call upon a defendant for a discovery, requiring him to answ'er under oath fully to all the matters charged in the bill, they cannot be allowed to say that his answer is not testimony. And so was the decision in Field v. Holland, 6 Cranch, 8. In that case it was held that the answer of Cox, one of the defendants, was not evidence against the other defendant, Holland, but that being responsive to the bill it was evidence against the plaintiff. And besides, in the present case, the respondent Quincy has a right to de [35]*35fend himself under the title of Gore. He is but a depositary of the papers, and became such at the request of both parties. He has no interest in the question, but is bound to deliver the papers to the party having the title. The question of title is between the plaintiffs and the defendant Gore, and Gore’s answer, being evidence for him in support of his title, is consequentially evidence for the other defendant. So that in whatever point of view the objection may be considered, we think it quite clear that the answer in question, so far as it is responsive to the bill, is evidence to be weighed and considered ; and that it is to be taken to be true, unless it is contradicted by more than one witness, or by one witness supported by corroborating circumstances, according to the general rule of equity. The answer in all respects, in relation to the question as to the delivery of the deed and note, is directly responsive to the allegations in the bill, and it expressly ienies that the deed and note were ever delivered to the plaintiff Mills, as charged in the bill.
We are then to consider, (and this is the principal ques lion,) whether the evidence on the part of the plaintiffs be sufficient to disprove the, material facts as alleged in the an sxver.
Jonathan D. Wheeler, one of the attesting witnesses to the execution of the deed, testifies that he saw Gore sign the deed, and that he and Luke Harrington subscribed their names as witnesses ; that Gore, who was standing by the side of Mills at a desk, took up the deed after signing it, put it before Mills on the desk, and remarked, “ there is no go back from that ; ’’ that this was before Wheeler and Harrington had subscribed their names as witnesses ; that soon after subscribing his name, he (Wheeler) left the counting-room, leaving Mills and Gore writing, and the deed remaining on the desk before them. Luke Harrington, the other subscribing witness, testifies substantially to the same facts.
The plaintiff’s counsel rely on the testimony of these witnesses, and on the possession of the deed by the plaintiff Mills, as good and sufficient evidence of a delivery, and consequently as contradictory to the denial and ansxver of the defendant Gore in this particular This evidence unexplainec [36]*36would undoubtedly be sufficient proof of a delivery ; and so would the possession of the deed by Mills alone, if unaccounted for, be good prima facie evidence of a delivery. But the question in this case is not, whether the plaintiffs have produced sufficient prima fucie or presumptive proof of a delivery, but whether the plaintiffs have proved the fact by direct testimony. There is no proof of a delivery of the deed into the hands of Mills ; but a deed may be delivered to a party by words without any act of delivery, as if the writing sealed lieth on the table, and the feoffor or obligor saith to the feoffee or obligee, go and take up the writing, it is sufficient for you, or it will serve the turn, or take it as my deed, or the like words, it is a sufficient delivery. Co. Lit. 36 ; Com. Dig. Fait, A 3 ; 4 Stark. Ev. 477. If however a party throws a writing on a table and says nothing, and the other party takes it up, this does not amount to a delivery, unless it be found to be put there with the intent to be delivered to the party, or to be taken up by him. Com. Dig. Fait, A 4 ; Chamberlain and Staunton's case, 1 Leon. 140.
May term 1836.
Admitting these principles, which seem to be well established, we are of opinion that the evidence on the part of the plaintiffs is not sufficient to prove a delivery of the deed and note to them. The words used by Gore, when he placed the deed on the desk, do not indicate an intention to deliver the deed at that time ; they only manifest the intention of completing the contract of sale, but not of delivering the deed before he received H. D.’s note ; and there can be no rea sonable presumption that he ever intended to deliver the deed before he received the note. That note was not delivered to him, but all the papers were taken by Mills, and carried to the office of Mr. Quincy, who it w'as agreed by the parties should take the acknowledgment of the deed. The conver sation which was had between the parties in the presence of Mr. Quincy, as disclosed in his answer, cannot be reconciled with the supposition that the deed had been previously delivered to Mills, for he made no such claim, although Gore acted on the avowed understanding that there had been no delivery. And upon the whole, we are of opinion that there is nothing in the evidence to contradict the answer of Gore as [37]*37to the question of delivery, hut, on the contrary, that all the circumstances of the case may be easily reconciled with his statement in that respect.
It has howevet been contended, that what took place at the office of Mr. Quincy amounted to a delivery ; but there is no ground for this argument. No such delivery of the deed is charged in the bill, but the charge is, that the deed was delivered before the parties went to Mr. Quincy’s office ; and a deed cannot be twice delivered. And, besides, there is no evidence that the deed was delivered at Mr. Quincy’s office. Gore offered to deliver the deed, it is true, but Mills declined accepting it in consequence of what he considered an offensive insinuation accompanying the offer on the part of Gore. And it is clear that an offer to deliver not accepted, cannot amount to a delivery.
In regard to the claim of partial relief, by restoring the parties to the situation they were in before the deed was deposited in the hands of Mr. Quincy, we are of opinion that the plaintiffs are not entitled to any such partial relief; but that the Court is bound to decide the case definitively upon its merits, as disclosed by the evidence. The Court, in its discretion, might have allowed the question as to the delivery, or as to the alleged fraud, to be tried by a jury, on the application of either party, but in that case they would have ordered the answers to be admitted as evidence. But if the deed should be restored to the. possession of the plaintiffs, leaving the parties to litigate these questions at law, the defendant’s answers would be excluded, which would be manifestly against justice and the equity of the case as it now appears upon the evidence. The rule in chancery is, that where the defendant in express terms negatives the allegations in the bill, and there is no sufficient evidence to control the negative averments in the answer, the Court will neither make a decree in favor of the plaintiff, nor send the case to be tried at law ; but will simply dismiss the bill. 2 Story on Eq. 744.
A party will not be allowed first to litigate a question in a court of equity, and, after failing to establish his claim, again to litigate it in a court of law; and if the question could be again litigated at law, the party applying to a court of equity [38]*38ought not to be placed in a better situation than he was in before making the application. In the present case the plaintiffs have failed to support the material allegations on which their prayer for relief is founded. They have proved no delivery of the deed and note claimed as their property, and the Court cannot order these papers to be restored to them for any purpose whatever, without doing injustice to the other party, as the case appears upon the whole evidence.
It was thereupon decreed that the injunction against Quincj be dissolved, that the bill be dismissed, with costs, and that the note of H. D. be delivered by Quincy to the plaintiffs.