The notes in question were transmitted by Loomis to Shepard the plaintiff, to be substituted for certain drafts he held in his hands for a debt due from Loomis. The proposition was, that if he accepted the notes, he should return the drafts. On this condition only had he a right to retain the notes. It was then optional with him to accept the notes and return the drafts ; or to return the notes and hold the drafts ; but he could not hold the notes, if he retained the drafts. As he refused to return the drafts, collected a part, and cancelled the whole, he never did the act which gave him a right to the notes ; of course, there was no legal delivery of the note in question, but he retained it wrongfully. As then this note was not legally delivered so as to vest a right and interest in him, and as he retained it wrongfully, he cannot, as indorsee, maintain an action upon it against the maker ; for in such case, it is necessary that he shew an interest, and that he came lawfully by the note, to entitle him to recover.

I am of opinion that a new trial ought not to be granted.

This motion, I think, ought not to prevail. It was incumbent on the plaintiff to show a title ; but this he could not do, if there was no effectual delivery of the note to him ; or in other words, if the delivery was not such as to entitle him to retain it. For though he might, by a breach of trust, make a valid transfer, and thus communicate a right of recovery to a subsequent bona fide receiver ; he certai nly could not, by his own wrongful act, make a title in himself. And according to the finding, he actually holds the note in *497his own wrong ; i. e. by the breach of a condition, which Loomis prescribed, and had a right to prescribe. For by accepting and retaining the two notes, enclosed in the letter of September 1st, the plaintiff must be deemed to have acceded to the terms, which the letter contained ; unless, from other evidence, a different agreement or understanding is shown. But the court distinctly left the question to the jury, whether the notes were actually delivered upon those terms ; and the finding is, that they were.

The rules relating to escrows, can have no application to the case, according to any view of it. The notes were not, like escrows, placed in deposit, or delivered provisionally, to take effect upon some future contingency, or the future performance of some condition ; but were delivered, in consideration, and in confidence, of a simultaneous act, to be performed by the plaintiff, but which he has not performed. And the case does not, I think, differ at all, in principle, from that of A.’s delivering to B. a deed of black-acre, under an agreement, that B., on receiving it, shall deliver to A. a deed of white-acre, and B’s refusing, on the receipt of A.’s deed, to deliver his own : A case, in which it is perfectly clear, that B. would acquire no title.

It is said, however, that the defendant Hall, being no party to the condition prescribed by Loomis, can take no advantage of it. But it should be recollected, that Hall, standing upon the defensive, has a right to claim, that the plaintiff make out his title. The objection, upon this point, is preliminary.

With respect to the claim, that Loomis ultimately waived the condition, prescribed in his letter of September 1st, there was, indeed, no direction to the jury; but there appears to have been no need of any : for no waiver is pretended, unless it may be collected from the “ letters,” and “ receipts,” annexed to the motion. And as these writings are now presented upon the face of the record, and the alleged waiver is to be deduced exclusively from them ; the question is reduced to a matter of mere legal construction, on which it was not necessary, (for the plaintiff’s sake, at least,) to instruct the jury : Though, if the verdict had been the other way, the defendant might, perhaps, have complained of the omission. For there can be no hesitation, I trust, in deciding, that those letters and receipts neither amount in *498law, to a waiver of the condition, nor conduce, at all, to prove it in evidence.

New trial not to be granted.