held to render such written request a necessary condition precedent to foreclosure proceedings, and not merely to render imperative on the trustees a power claimed to have been made optional with them by the first clause. Chicago, etc. R. Co. v. Fosdick, U. S. S. C., March, 1882, 4 Morr. Trans., 1.

28. REVENUE LAWS-IMPORT DUTIES.

1. The act of Congress of June 6, 1872, "to reduce duties on imports," placing certain articles on the free list, repeals, so far as those articles are concerned, that part of the act of June 30, 1864, which imposed a discriminating duty on articles imported in foreign ships. 2. Inasmuch as the articles in the case at bar were imported directly from Ceylon, which is east of the Cape of Good Hope, the eighteenth section of the act of 1864 does not apply. Gautier v. Arthur, U. S. S. C., October Term, 1881, 3 Morr. Trans., 340.

29. STATUTE OF LIMITATIONS-WHEN IT WILL BEGIN TO RUN AGAINST A DETACHED COUPON. Limitation under the statutes of Wisconsin to actions upon coupons of municipal bonds issued in 1857, payable twenty years after date. The cause of action upon a coupon, whether detached from the bond or not, held to accrue, and limitation to commence, from its maturity. Town of Roskonong v. Burton, U. S. S. C., Morch 6, 1882, 4 Morr. Trans., 152.

30. UNITED STATES-CONTRACT WITH BANK NOTE COMPANY-STAMPS UNCALLED FOR.

The Continental Bank Note Company held not entitled, under its contract, to recover compensation from the United States for the stamps manufactured by it and not called for by the United States. Continental Bank Note Co. v. United States, U. S. C., March 20, 1882, 4 Morr. Trans., 197.

NOTES.

-Without any doubt, the invention of the postal card has furnished the business world with a great convenience for brief correspondence; but, like many other labor saving contrivances, it may, through carelessness, be so misused and abused as to be productive of more trouble by far than it saves. Thus, a presumable subscriber writes: "You omitted to send me the last number of the JOURNAL," omits the name of his town and State, and signs his name in an absolutely illegible fashion. By a not unusual combination of circumstances, the post mark is so faint as to be illegible and furnish no clue to the mystery. There is no help for it, and our subscriber is at present probably heaping undeserved anathemas upon our innocent head, because we fail to send him the missing number, all of which is the consequence of his own carelessness.

Another of these economizers of labor writes: "Please send me at once, No. Vol.- of Cent. L. J., containing case of V.. Please send it at once, as I will need it in court next Monday." Signed, "John Smith." As usual, no date, no town, no State, and the post mark so

defaced as to be undecipherable. The name Occurs a number of times on the subscription ledger, and furnishes no clue to the writer's identity. The consequence is, in all probability, that Monday finds him making strenuous efforts to induce the court to grant him a delay, and the chances are that he blames us for the legitimate results of his own negligence. Even greater care is necessary in the use of postal cards, than in that of ordinary letter paper, for there the printed letter-head furnishes information of the place, and not infrequently helps out an illegible signature. The use of a postal card instead of a letter will save the correspondent an expense of two cents, as well as the trouble of folding the sheet and sealing the envelo pe, but it will not write the message for him; nor is there anything talismanic in the card itself which will enable the recipient by a process of divination to supply the essential parts of the message omitted by the sender.

"We were riding along the road one chilly day in November," said General James Craig, talking about court business and legal talent, "when we struck a small stream that appeared to be about thirty yards wide. 'Hello,' said Judge of Missouri, 'this is a ne w stream to me. How shall we cross it?' Taking advantage of his ignorance, I pretended to survey the situation, and after emerging from the thicket I solemnly inquired: Judge, can you swim?' 'Like a fish,' he replied, while his eyes twinkled in the expectation of displaying his ability in that direction. I can't' said I, 'so suppose you strip off and swim across, testing the depth as you go, and give me the advantage of your experience.' 'All right,' he said, dismounting from his horse. Then he removed all his clothes, tied them together, placed them safely between his teeth, and started cautiously into the creek. I choked my handkerchief into my mouth to keep from laughing, while the judge gravely waded across through exactly four inches of water; but you would have died to see his look of unutterable disgust when he reached the opposite bank. His feet were blue with mud, but his ankles were scarcely touched by the water. It was three straight days before he spoke to me again.”— Philadelphia Times.

-The inability of a lawyer to answer a question directly is illustrated by a recent exchange of letters between the Chicago lawyer, Emery A. Storrs and a friend. The latter asked Mr. Storrs whether his first name was "Emery" or "Emory," and Mr. Storrs began his reply by saying: "My signature hereunto appended will settle the e and o question," and then he wrote three pages about social and political matters, at the end of which were these words: "Yours truly, E. Storrs."New Haven Register.

The Central Taw Journal.

ST. LOUIS, SEPTEMBER 1, 1882.

CURRENT TOPICS.

We publish this week the first number of our "Monthly Index," which he reafter will be a regular feature of the JOURNAL. It is hoped that our subscribers will find it an appreciable convenience for searching the current pages of the JOURNAL, before the issue of the semi-annual index at the end of the volume. We have for some time realized the desirability of some means of enabling the busy lawyer to find the case or article which happens to be the object of his search without the necessity of going over the JOURNAL, number by number, or else of waiting until the conclusion of the volume, and it is hoped that this monthly index will accomplish that result. With the present multiplication of precedents and books, the search for authority is growing annually more and more tedious and laborious, and consequently any contrivance which tends to lessen the labor and tedium of the more mechanical part of that search, can not be unapreciated.

At any rate, this Monthly Index costs the reader of the JOURNAL nothing, and inasmuch as we print it upon the pages of the cover it in no wise obtrudes upon the space in the JOURNAL, and it is hoped that it will be of practical utility as a labor-saving device to the busy lawyer whose time is valuable.

One matter to which we desire to call the reader's attention is the fact that though this number of the Index, which embraces the four issues of the JOURNAL during August, is printed with the first issue of the paper in September, such will not hereafter be the rule. The Index of each month will be published in the last issue of the month, which will be included in it.

The

"income" annually to his children. company increased its capital, and, as its stock was at a premium, apportioned the right to subscribe the new stock among its old shareholders. The trustees sold a portion of the right to subscribe to the new stock, which they thus acquired, and, with the proceeds of such sale, they subscribed for the balance, and added the new shares to the stock in their hands. The cestuis que trust claimed these new shares as a part of the "income" of the stock. Said the court: "In the case before us, neither in fact nor form did the corporation make any division, or part with any portion of its earnings in behalf of the stockholders. On the contrary, it manifestly desired to retain its surplus intact, and increase its strength by the addition of a million dollars to its capital; its accumulated earnings all remained its property, and subject to the risks of its business. It offered to the shareholders the privilege of paying in this sum; investors were of opinion that this privilege was worth a premium; not because it carried with it the right then or ever to demand any portion of the surplus retained in good faith by the company, but presumably because they believed that from the income from its capital, surplus and business it would make regular dividends largely in excess of the ordinary rate of interest.

In

short, all of the increase of value which is realized from the act of the trustees in selling either the existing share with the privilege annexed or the privilege severed therefrom, belongs to the capital; purchasers pay it from their money; all that is realized from the act of the corporation in making dividends belongs to the life tenant (Atkins v. Albree, 12 Allen, 359; Moss's Appeal, 2 Norris, 264), and this regardless of the question whether profits were accumulated before or after the purchase of shares by the trustees; if before, and a dividend is made immediately aftet, it is the good fortune and the property of the life tenant; if after, and the corporation does not divide them during the life tenancy, it is the advantage of the remainder-man; each must take the risk of his time, both as to the success of the business and the action of the directors in the matter of dividends." See, also, Miller v. Guerrard, 14 Cent. L. J. 214; Biddle's Appeal, 14 Cent. L. J. 253; Vinton's Appeal, 14 Cent. L. J. 273

THE LAW OF ESCROWS.

1. General and Historical. The general principles of the law of escrows are quaintly laid down in Sheppard's Touchstone, and prior to this authority we find the same doctrines stated as settled law in the treatise of Perkins, which my Lord Coke tells us was "wittily and learnedly composed and published" in the reign of Edward VI. There are also numerous references to the same in the Year Book.1 Although the law was thus early regarded as settled in its general features, yet, the complicated transactions of modern business have given rise to much litigation which grew of the attempted delivery of instruments in escrow. By the Touchstone an escrow is defined to be "where one doth make and seal a deed and deliver it unto a stranger, until certain conditions be performed, and then to be delivered to him to whom the deed is made, to take effect as his deed." It will be observed that only a deed is referred to in this definition; but the instrument may be of some other character, as a mortgage or note. 3

2. The instrument must be duly "made and sealed," being upon its face a complete contract requiring nothing but delivery to make it perfect according to the intention of the parties. 4

3. The delivery must be to some third person who is a "stranger" to the transaction, and not to the grantee himself. If the instrument is placed in the hands of the grantee himself by the grantor, even with the express condition annexed, that it is delivered as an es

1 14 Henry VII. 42; Henry VIII. 28.

2 Sheppard's Touchstone (Preston's ed.), 59.

3 Foy v. Blackstone, 31 Ill. 538; Henshaw v. Dutton, 59 Mo. 139; Andrews' Adm'x. v. Thayer, 30 Wis. 228; Taylor v. Thomas, 13 Kan. 217.

4 State v. Potter, 63 Mo. 212; Deardorff v. Foreman, 14 Am. Law. Reg. 551; Hicks v. Goode, 12 Leigh. (Va.) 479.

5 Sheppard's Touchstone, 59; Whyddon's Case, Cro. Eliz. 520; Fairbanks v. Metcalf, 8 Mass. 230-238; Brown v. Reynolds, 5 Sneed. 639; Cincinnati, etc. R. Co. v. Iliff, 13 Ohio St. 235; Jordon v. Pollock, 14 Ga. 145; Graves v. Tucker, 18 Miss. 9; Worrall v. Munn, 5 N. Y. 229; Braman v. Bingham, 26 N. Y. 483; Lawton v. Sayer, 11 Barb. 349; Hogood v. Harley, 8 Rich. (S. C.) 325; Gilbert v. North American F. Ins. Co., 20 Wend. 43; Fireman's Ins. Co. v. McMillen, 29 Ala. 147; Jayn v. Gregg, 42 Ill. 413; Dawson v. Hall, 2 Mich. 390. As to conditional delivery of bonds, see Hawkland v. Gatchel, Cro. Eliz. 835, which is denied in Thoroughgood's Case, 9 Rep. 137.

crow, to be without effect until the conditions be performed, it will, nevertheless, take effect from the delivery as his deed, and the grantee is under no legal obligation to perform the conditions." A delivery to an agent of the grantee will have the same effect. Thus, a president of a corporation can not hold the stock of the company in escrow. 7 But it has been held that a delivery to a director of a railway company, even though he have a limited or quasi agency in behalf of the company to procure the execution of its notes and mortgages, will be good as an escrow. So it has been frequently decided that a bond may be delivered in escrow to a co-obligor, even though such obligor be the principal bondsman. But it can not be de livered to one of several co-obligees, as a delivery to one is a delivery to all. 10

The question whether the agreement of a surety with his principal, that a bond which he has signed shall not be delivered to the obligee until other signatures are secured, will be regarded as creating an escrow, and thus relieve the surety from liability, in case the condition is not performed, has been prolific of litigation, and the conclusions of the various tribunals have not been altogether uniform. A number of cases hold that if the condition is not performed, the surety will not be bound, and especially when the instrument is incomplete upon its face.11 But the

6 Supra note 4; Worrall v. Munn, 1 Seld. 229; Herdman v. Bratten, 2 Harr. 396; State v. Crisman, 2 Ind. 126; M. & Ind. Plank Road Co. v. Stevens, 10 Ind. 1; Paulding v. United States, 4 Cr. 219; Black v. Shreve, 13 N. J. 457; Loyd v. Geddings, 7 Ohio, 375; State v. Potter, 63 Mo. 212; Jones v. Shaw, 67 Mo. 667: Massman v. Holscher, 49 Mo. 87; Truman v. McCollum, 20 Wis. 379; Ordinary of New Jersey v. Thatcher, 12 Vroom, 403; s. C., 32 Am. Rep. 225. But see Bibb v. Reid, 3 Ala. 88.

7 M. & Ind. Plank Road Co. v. Stevens, 10 Ind. 1; Foley v. Cowgill, 5 Blackf. 18; Wight v. Shelby, etc R. Co., 16 B. Mon. 4; Life Ins. Co. v. Cole, 4 Fla. 359. 8 Andrews v. Thayer, 30 Wis. 228; Andrews v. Powers, 30 Wis. 236.

9 Ordinary of New Jersey v. Thatcher, 12 Vroom, 403; s. C., 32 Am. Rep. 225; State Bank v. Evans, 15 N. J. L. 155; Black v. Lamb, 1 Beas. 108; Duncan's heirs v. United States, 7 Pet. 435; Roberts v. Jackson, 1 Wend. 478; Pawling v. United States, 4 Cranch. 219; Blum v. Bowman, 2 Ired. L. 338; Fertig v. Bucher, 3 Pa. St. 308; Bibb v. Reid, 3 Ala. 88; Fletcher v. Austin, 11 Vt. 448.

10 Moss v. Riddle, 5 Cranch. 351; State v. Crisman, 2 Ind. 126; Blum v. Bowman, 2 Ired. L. 338, Perry v. Patterson, 5 Humph. 133.

11 Ayer v. Miltroy, 53 Mo. 516; Preston v. Hall, 23 Gratt. 600; Johnson v. Baker, 4 B. & Ald. 440; Fletcher v. Austin, 11 Vt. 447; State Bank v. Evans, 15 N. J.

weight of authority seems to be in favor of the doctrine - that such a delivery is absolute and will bind the surety. 12 Judge Redfield, 13 in considering this question, says: "And it seems to us, upon principle, that where there is nothing upon the face of the paper, indicating that other co-sureties were expected to become parties to the instrument, and no facts brought to the knowledge of the obligee, before he accepts the instrument, calculated to put him on his guard in regard to that point, and which would naturally have led a prudent man, interested in the opposite direction, to have made inquiry before accepting the security, the fault can not be said to rest, to any extent, upon the obligee. And, on the other hand, where the surety intrusts the bond to the principal obligor in perfect form, with his own rame attached as surety, and nothing upon the paper to indicate that any others are expected to sign the instrument in order to give it full validity, against all the parties, he makes such principal his agent to deliver the same to the obligee, because such is the natural and ordinary course of conducting such transactions. And if the principal, under such circumstances, give any assurance to the surety in regard to securing other co-sureties, or performing any other conditions before he delivers the bond, and which he fails to perform, the surety giving confidence to such assurances, must stand the hazard of their performance, and can not implicate the obligee in any responsibility in the matter, unless he is guilty of fraud or rashness in accepting the security.”

If the grantor hand the instrument to the grantee for the the purpose and with the mutual understanding that it is to be deposited with some third person as an escrow, no in

L. 155. See Pawling v. United States, 4 Cranch. 219, and Moss v. Riddle, 5 Cranch. 357; Bibb v. Reid, 3 Ala. 88. Seely v. People, 27 Ill. 173, holds that where a'name had been forged, a surety signing after such forgery would not be bound. Where one surety signed with the understanding that another name was to be obtained, and the other party refused to sign, the surety is not bound. Leaf v. Gibb, 4 C. & P. 466. 12 Deardorff v. Foreman, 24 Ind. 481; State v. Potter, 31 Ind. 76, overruling the same case in 22 Ind. 399; Blackwell v. State, 26 Ind. 204; State v. Crisman, 2 Ind. 126; Webb v. Beard, 27 Ind. 368; Millett v. Palker, 2 Met. (Ky.) 608; Taylor v. Craig, 2 J. J. Marshall, 449; Bank v. Curry, 2 Dane, 143; Smith v. Moberly, 10 B. Mon. 266; Passumpsic Bank v. Gass, 31 Vt. 315; Dixon v. D xon, 3 Vt. 450.

13 11 Am. Law Reg. 402.

terest will vest in the grantee while it is in transit. 14

4. No Particular Technical Words of Delivery are Necessary. If the actions of the parties negative the intention to regard the instrument as a present deed it is sufficient. Nor is the use of the word escrow essential. 15 A delivery with words similar to the following would create an escrow: "I deliver this to you as an escrow, to deliver to the party mentioned, as my deed, upon condition that he deliver to you £20 for me, or upon condition that he deliver up the old bond he holds of mine for the same money." But if the instrument be delivered with the words: "I deliver this to you as my deed, to deliver to him to whom it is made, when he comes to London ;" this is a present grant, and the title vests in the grantee, whether he ever comes to London or not. Whether a delivery is a present grant or an escrow, depends upon the intention of the parties. If the second delivery is to depend upon a condition, it is an escrow; if otherwise, it is a present grant, even though time is to elapse, as until the death of the grantor.16 In Prutsman v. Baker, 17 Chief Justice Dixon said: "Many,and perhaps most of the authorities make a distinction between cases where the future delivery is to depend upon the payment of money, or the performance of some other

14 Jackson v. Sheldon, 22 Me. 569; Gilbert v. North American F. Ins. Co., 23 Wend. 43; Murray v. Stair, 2 B. & C. 82; Den v. Partee, 2 Dev. & B. 530; Supra, note 4. But see Braman v. Bingham, 26 N. Y. 483. A deed executed by a sheriff and delivered by him to the attorney of the purchaser, to be delivered to the grantee on payment of the purchase money, is an escrow, and until the condition is performed, the estate continues in the execution debtor. Jackson v. Catlin, . 2 Johns. 248; Robins v. Bellas, 2 Watt. 359.

15 Sheppard's Touchstone, 58-59; Jackson v. Catlin, 2 Johns. 248; Fairbank v. Metcalf, 8 Mass. 230-238; Jackson v. Sheldon, 22 Me. 569; White v. Bailey, 14 Conn. 271. Where a conveyance of land and a bond and mortgage to seeure the purchase money were left "'as escrows," subject to the direction of the parties: Held, not an escrow. James v.Vanderhayden, 1 Paige,. 385; Stinson v. Anderson, 96 Ill. 373.

In.

16 3 Washburn Real Prop. 301, citing Foster v. Mansfield, 3 Met. 414; Price v. P., Ft. W. & C. R. Co., 34. Ill. 13; Fowley v. Dibble, 2 Hill, 641; Braman v. Bingham, 26 N. Y. 483; Hathaway v. Payne, 34 N. Y. 106. 17 Prutsman v. Baker, 30 Wis. 644; s. C., 11 Am.. Rep. 592; State Bank v. Evans, 15 N. J. L. 155. White v. Bailey, 14 Conn. 271, it was said that the question whether a deed was delivered as an escrow, was a fact for the jury to decide. A deed left to be acknowledged is not an escrow. White v. Williams, 3 N. J. Eq. 376; Foster v. Mansfield,3 Met. 412; Hatch v. Hatch, 9 Mass. 310.

condition, and cases where it is to depend on the happening of some contingency, holding that the former is an escrow, but that the latter will be deemed the grantor's deed presently. This distinction will be found, however, not to be in all cases correct, since it will frequently happen that it will defeat the manifest intention of the parties which.it is conceded should govern."

A statement by the grantee that he delivers it as his deed, even though he afterwards adds a condition, strongly indicates an intention that it shall take immediate effect. "Such a declaration however, is," said Sunderland, J.,18 "I apprehend, but matter of evidence to be weighed in connection with the other circumstances of the cass in order to deter-i mine the real character of the transaction."

5. Of the Second Delivery.-The depositary is regarded as the agent of both parties. He is hence as much bound to deliver the instrument to the grantee when the condition is performed, as he is to withhold it until such performance. Consequently, no formal delivery to the grantee is necessary, as upon the condition being performed it is already in the possession of the grantee's agent. 19 The necessity of the second delivery may, however, be created by the words of the first. "Whether an actual delivery to the grantee is necessary in order to give effect to the instrument as the deed of the grantor, seems not to be well settled, but the inference would appear to be that it is not. The indication from the authorities quite clearly is, that it becomes the grantor's deed the moment the conditions have been performed, or the event has happened upon which the grantee is entitled to the possession of it, and that henceforth the depositary, or holder, is regarded as the mere agent, or trustee, for the grantee.20

6. No Title can be Acquired by a Delivery before the Conditions are Performed.—An instrument thus delivered is not the deed of the grantor, and can have no effect as such.21

. 18 Clark v. Gifford, 10 Wend. 310-313, and authorities cited. A conveyance deposited with the agreement that it is to be delivered back to the grantor upon the performance of some condition by him, as give the grantee certain security for a debt, is an escrow. Raymond v. Smith, 5 Conn. 555.

19 Shirley v. Ayers, 14 Ohio, 307; 3 Washb. on Real Prop. 272; 4 Cruise. Dig. (Greenf.) 73-74.

20 Prutsman v. Baker, supra.

21 Perkins, sec. 39, but see sec. 144; Stiles v. Brown,

No title can pass until the conditions are performed. 22 There is a conflict of opinion as to the right of an innocent purchaser from a grantee who has obtained possession of the escrow without performing the conditions. Some cases hold that a bona fide purchaser, ignorant of the fact, will be protected.23 But the better opinion seems to be that such a purchaser acquires no title. It is as though the deed were stolen, and must be distinguished from the case where the deed is obtained by fraud from the grantor himself.24 Such an instrument may, however, be used as evidence of a contract to sell and purchase land, and thus have an effect as a writing signed by the parties. 25

7. An escrow takes effect as a deed from the second delivery, or from the time when the conditions are performed, and becomes

16 Vt. 563-564; Jackson v. Sheldon, 22 Me. 569; State Bank v. Evans, 15 N. J. L. 155; Rhodes y. Gardiner, 30 Me. 110; Berry v. Anderson, 22 Md. 36; Carter v, McClintock, 29 Mo. 464. See Hooper v. Ramsbottom, 6 Taunt. 12.

22 Dyson v. Bradlaw, 23 Cal. 528; Jackson v. Rowland; 6 Wend. 666; Carr v. Hoxie, 5 Mason, C. C. 60; Green v. Pulman, 1 Barb. 500; Smith v. S. R. Bank, 32 Vt. 341; Townsand v. Hawkins, 45 Mo. 285; Curtis v. Mills, 30 Mo. 432; Everts v. Ayres, 4 Wis. 343; Abbott v. Alsdorf, 19 Mich. 157.

23 Blight v. Schenk, 10 Pa. St. 285; Pratt v. Holman, 16 Vt. 530; Peter v. Wright, 6 Ind. 183. See Berry v. V. Anderson, 22 Ind. 36.

24 Fisher v. Beckland, 30 Wis. 55; Titus v. Phillips, 3 C. E. Green, 540; Smith v. Royalton Bank, 32 Vt. 341; People v. Bostwick, 32 N. 450; Ill. Cent. R. Co. v. McCullough, 59 Ill. 176; Dyson v. Bradshaw, 23 Cal. 536; Abbott v. Alsdorf, 19 Mich. 157; Kellogg v. Steiner, 29 Wis. 629; Walker v. Egbert, 29 Wis. 194; Southern Ins. Co. v. Cole, 4 Fla. 359. Where the deed is delivered to the agent of the grantee to be delivered upon the performance of certain conditions, and accepted by the agent upon these conditions, the delivery will not affect the title until the conditions have been performed. Cincinnati, etc. R. Co. v. Iliff, 13 Ohio St. 235. In Burson v. Huntington, 21 Mich. 415; C. S. 4 Am. Rep. 497, the facts were as follows: A ex. ecuted a note in favor of B, and B obtained possession of it contrary to the directions of A, and put it in circulation. Mr. Justice Christiancy said: "We, therefore, see no ground upon which the defendant could be liable on a note thus obtained, even to a bona fide holder for value. We have carefully examined the cases, English and American, and are satisfied there are no adjudged cases in the English courts, so far as their reports have reached us, which could warrant a recovery on the present case. Some dicta may be found, the general language of which might sustain the liability of the maker; such as that of Alderson, Baron, in Marston v. Allen, 8 M. & W. 494, cited by Duer, J., in Gould v. Segee, 5 Duer, 260, and that used by Williams, J., in Ingham v. Primrose, 7 C. B. (N. S.) 82. But a reference to the cases will show that no such question was involved, and that these remarks were wholly outside the case.'' 25 Coggers v. Lansing, 57 Barb. 421.