find in this court, is the right of a defendant recognized to offer evidence of this character as an independent defense, and not by way of rebuttal. To us there seems a manifest impropriety in it, and we cannot, therefore, yield our assent to it."] Mullin v. Spangenberg, 112 Ill. 140, (Advance Sheets.)

10. DEDICATION

[Highway] - Thirty or Forty Years Use does not Establish Dedication.-The dedication of property to the public must appear by evidence so conclusive as to exclude all idea of private ownership. So where a road has been used by the public for thirty or forty years, by the mere sufferance or tolerance of the owners of the land which it traverses, such use does not of itself establish a dedication and divest the title of such owners. Torres v. Falgoust,, S. C. La., March 16, 1885.

11. INFANT. [Ratification.]—Giving a Receipt, after Majority, for the Value of Property Received by him Amounts to a Ratification of his Contract. -A ward may, after he becomes of age, disaffirm a contract which he made, while an infant, with his guardian, without restoring, or offering to restore, the property which he purchased and received under the contract; but where, after majority, and without fraud or undue influence, such ward executes to his guardian a receipt for the value of the property received by him, such an act is a valid ratification of the contract, even if such ward was ignorant of the fact that he had a right to disaffirm. [Disapproving Fetrow v. Wiseman, 40 Ind. 148.] Clark v. Van Court, S. C. of Ind., April 23, 1885.

12. MALICIOUS PROSECUTIONS.-[Evidence.]—Evidence of Information Received Before and After the Prosecution.-In an action for malicious prosecution evidence of information received before preferring the charge, by the person who institutes a prosecution for a criminal offense, and tending to establish the guilt of the person prosecuted, is competent as to the question of probable cause; but evidence of information received after the charge has been preferred is not. Pennsylvania Co. v. Weddle, S. C. of Ind., Jan. 28, 1885.

14. MASTER AND SERVANT.-[Negligence.]— When Non-Resident Master Liable for Servant's Injuries. Where a non-resident corporation entrusts to a superior resident officer, or agent, the duty of superintending the machinery of its factory and of managing its business, it is responsible to a servant who suffers an injury from unsafe or defective machinery upon which the servant is employed, under the control and direction of such officer or agent. [Elliott, J., in the opinion says: "It is clear upon principle that where the duty rests directly on the master, and he authorizes an agent or servant to perform that duty, he is bound to answer

15.

to a servant injured by the negligent performance of the duty; nor are the authorities wanting." Citing Whart. Neg. 232; Mullen v. Philadelphia Co., 78 Pa. St. 25; Gunter v. Graniteville Co., 18 S. C. 262; Crispin v. Babbitt, 81 N. Y. 516; Brothers v. Cartter, 52 Mo. 372.] Indiana Car Co. v. Parker, S. C. of Ind., April 28, 1885.

Duty to Caution Inexperienced Servant in Dangerous Employment.—It is the duty of the master not to expose an inexperienced servant to a dangerous service without giving him warning, or such instruction as will enable him to avoid injury, unless both the danger and the means of avoiding it are apparent. Atlas Engine Works v. Randall, S. C. of Ind., March 11, 1885.

16. Liability of Master when he Delegates Duties to a Servant as Agent.-If the master subjects the servant to the command of another, without information or caution with respect to such obligations as the master's owes, the other stands in the master's place, notwithstanding the two servants are, as regards the common employment, fellow-servants. Aliter, if he defines the duty and authority of each with respect to the other, or gives instructions covering the subject of their employment, so as to give no authority to the one over the other, or so as to point out the danger of the service and the means of avoiding it. Ibid.

[Nuisance]

17. MUNICIPAL CORPORATIONS. Wooden Buildings, when Removable.-A wooden building is not in itself a nuisance, but it may become so when it endangers surrounding buildings, and a municipal corporation may enact an ordinance providing for the summary removal of such a building. [Elliott, J., in the opinion says "there is some conflict in the authorities as to whether a municipal corporation possesses the inherent power to prohibit the erection of wooden buildings within prescribed limits, and to cause their removal." Citing, 1 Dill. Munic. Corp., 3d ed., § 405; Brady v. Northwestern Ins. Co., 11 Mich. 425; Wadleigh v. Gilnan, 12 Me. 403; Mayor, etc. v. Hoffman, 29 La. Ann. 651; Fields v. Stokley, 99 Pa. St. 306.] Baumgartner v. Hasty, S. C. of Ind., March 13,

1885.

18. PARENT AND CHILD. [Contract Consideration—Privity.]—Father's Agreement to Support Illegitimate Child Enforceable by Child. — An agreement between the father and mother of an illegitimate child, that, in consideration of the surrender by the mother of all right to its custody, the father will support and educate it, is founded on a good consideration, and is enforceable by the child. [In giving the opinion of the court, Pryor, J., said: "The common law afforded no remedy against the father for the support of his illegitimate offspring; but where such a relation exists, there is a strong natural and moral obligation on the part of the father to contribute to the illegitimate child's support, although such considerations may not be sufficient to support a mere promise to pay either money or property in discharge of this moral duty, when the mother surrenders to the putative father the custody of the child on an express promise that he will support and maintain it, such a contract should be enforced. It must be conceded that the father can be made to respond in such a case by reason of his contract alone, and that such a contract must be based on some other consideration than the mere natural obligation

resting on him to support his offspring, and recognizing this as the rule we are satisfied the consideration alleged, if established, authorizes a recovery. The statute of this State enables the mother to compel the father to maintain his illegitimate child, and while this statute should be regarded more for the purpose of indemnifying the State against the demands of such helpless infants for support, it nevertheless relieves the mother from the burden and compels the father to discharge a plain duty. A promise to pay for the support of the child in the event the father will not be coerced into payment by reason of the statute has been enforced by this court not only for what would be deemed a reasonable sum, but for a much larger amount. In the case of Clarke v. McFarland, reported in 5 Dana, 45, the mother agreed with the father in consideration of her promise to forbear to proceed against him under the statute, he would from time to time make such auxiliary contributions in money as might be necessary for her support, and at the same time agreed that he would secure and pay to the mother for the child whenever requested the sum of ten thousand dollars. This court held that the promise was binding, and that the apparent extravagance of the promise would not authorize the court to say that it was not legally binding. The facts alleged in this case are all to be taken as true, and the father's promise to educate and maintain his own child and give to it money and property amounting to three or four thousand dollars in the event he is permitted to have its custody, is not such an inadequate consideration as will imply fraud or bad faith on the parts of those presenting the claim, and if the mere forbearance to coerce the father into payment is a sufficient consideration, the separation of the child from the mother and transferring the care and custody to the father is not only a sufficient consideration for the promise, but is that character of contract the value of which cannot be well estimated by dollars and cents. Here the child was actually delivered to the father, taken to his home, the latter assuming the legal responsibility of the support and education of the only object of his affection, and promising the mother in behalf of the infant, in consideration of the surrender of her claims, to give to the child a certain specified sum of money and a home of the value of $2,700. What higher or greater consideration could the mother have surrendered or given than the right to the care and custody of her child? The child should not be punished by reason of the crime of its parents, or the courts of law and equity closed against such contracts, that when clearly established, are based upon the plainest principles of natural justice. The contract is therefore binding on the father." Benge v. Hiatt's Admr., Ky. Ct. of App., March 14, 1885; 6 Ky. L. J. 714.

19. PARTITION.-[Co-Tenancy.]-Not a Matter of Discretion, but a Matter of Right.—Where a case is fairly brought within the law authorizing a partition, the right to partition is imperative, and absolutely binding upon courts of equity. They are not clothed with such discretion as that, under a given state of facts, they may grant the relief or refuse it, and yet commit no error. To invoke this equitable remedy is a matter of right and not of mere grace. ["The material question," says Mr. Justice Mulkey, in giving the opinion of the court, so far as the case in hand is concerned, is, is this right to partition imperative and absolutely binding upon courts of equity where a case is fairly

brought within the law authorizing a partition, or are courts of equity clothed with such discretion that, under a given state of facts, they may grant the relief, or refuse it, and yet commit no error, or, differently put, when they may grant the relief without committing an error, are they bound to do it? That they are so bound we think is fully shown by the general current of authorities. Freeman, in his work on Co-tenancy and Partition, § 424, in discussing this question says: "It is now certain that unless, when the titles of the respective parties are spread before a court of equity, it can see that there are legal objections to the complainant's title, he can demand, as a matter of right, that it proceed with the partition." No question is made as to the sufficiency of appellant's title in this case. In Smith v. Smith, 10 Paige, 470, it is declared that partition is as much a matter of right in equity as it is at common law. In 5 Wait's Actions and Defenses, the author lays down the rule in these words: "Tenants in common have an absolute right to a division of the land held in common, notwithstanding inconveniences may thereby result to the other tenants, or if partition cannot be made, to a sale, and division of the proceeds,"-citing many authorities in support of it. Bispham, one of the most polished and accurate of modern law writers, in discussing this subject, in his work on Equity, 2d ed., p. 532, holds this language: "This jurisdiction was assumed some time about the reign of Elizabeth, and became so well established, both in England and the United States, that to invoke this equitable remedy has become a matter of right, and not of mere grace." In support of the text numerous authorities are cited which fully sustain it. See, also, to the same effect, 2 Leading Cases in Equity, pt. 1, p. 906, et seq. In Howey v. Goings, 13 Ill. 95, this court cite with approval the following language held by the court in Parker v. Gerard, Amb. 236, namely: "That such a bill" (being a bill in equity for partition) "is a matter of right, and there is no instance of not succeeding in it, but where there is not proof of title in plaintiff." It will be thus seen that this court at an early day placed itself in line with the general current of authority on this question, in strong and emphatic terms. Notwithstanding the rule as stated is almost universally conceded, nevertheless there are certain well recognized modifications of it. For instance, if an estate should be devised or otherwise conveyed to two or more, upon the express condition that it should not be subject to partition, or if several tenants in common, or joint tenants, should covenant between themselves that the estate should be held and enjoyed in common only, equity would not, in the absence of special equities, award a partition at the suit of some of the parties, against the objections of the others; and where the title of the complainant is doubt ful or, in other words, where he does not show a clear right to partition-it will not be awarded. So where several persons had purchased land, with a view of selling it out into lots for building ground, according to a certain plan, and it was agreed among them that neither of them should dispose of his share except in a certain manner, it was held, in a suit by the representatives of one of the parties against the survivors, that the agreement barred the right to partition. Peck v. Cardwell, 2 Beav. 137. See, also, in this connection, Cubbage v. Franklin, 62 Mo. 364; Selden v. Vermilya, 2 Sandf. (N. Y.) 568. The principle which seems to underlie all these cases is,

that equity will not award a partition at the suit of one in violation of his own agreement, or in violation of a condition or restriction imposed upon the estate by one through whom he claims. The objection to partition in such cases is in the nature of an estoppel." Hill v. Reno, 112 Ill. 154 (adv. sheets).

20. REPLEVIN.-[Aider by Verdict.]-Omission to allege place from which Goods taken Cured by Verdict. In an action of replevin, the failure to allege in the complaint the place from which the property was taken, is cured by verdict. [In the opinion of the court Lord, J., said: "Originally the action of replevin lay-only for goods distrained, and as the right of distress, which the action was intended to contest, was at common law local, this would seem to furnish the reason for holding the action to be local. However this may be, there can he little doubt but that the action of replevin at common law was treated as local, and that the action had to be brought in the country where the property was seized and located. Williams v. Welch, 5 Wend. 290; Atkinson v. Holcomb, 4 Cow. 45; Robinson v. Mead, 7 Mass. 353; 1 Chit. Pl. *185. The place was material and traversable, and if it be omitted the defendant may demur. Walton v. Kersop, 2 Wils. 354. But the omission to state the place in the declaration where the property was seized and located, may be cured by verdict. Gardner v. Humphrey, 10 Johns. 54; 2 Chit. Pl. *843, and note h. If the defendant pleaded non cepit, and the plaintiff cannot prove a caption, or that the defendant had the cattle, etc., in the place stated in his declaration, he will be nonsuited. 2 Chit Pl. *843, and note h. This is in conformity with the general principle as stated, that "a defect in a pleading, whether of substance or form, which would have been fatal on demurrer, is cured by verdict, if the issue joined be such as necessarily required, on the trial, proof of the facts defectively stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict." Proff. Jury, § 419. The omission, therefore, to allege the place where the property was seized and located, was cured or supplied after verdict and judgment, when the defendant pleaded over without making any objection."] Kirk v. Matlock, S. C. Oreg., June 8, 1885; 7 Pac. Rep. 322.

21. SERVITUDES.-[ Water.]- Right to take and use Water.-Entry on Subjected Estate.-1. Contracts establishing servitudes are designed to confer rights and impose obligations, which otherwise would have no existence, and should be strictly construed. 2. In the absence of express or implied stipulations the rights and obligations of the parties thereunder must be construed and regulated by the laws relative to like servitudes. 3. Under a contract creating a predial servitude in favor of one estate on another, both being sugar plantations, whereby the owner of the former acquires the right to use a canal or acqueduct running through the latter, so as to get water from a lake or swamp, the owner of the encumbered property has no right to obstruct the flow of the water by the erection of dams or to divert it by excavations below the level of the bottom of the canal unless in cases of necessity for self-protection against injury which would otherwise result, or for purposes of great utility, and then only for a time and with due regard to concurrent rights to the water. 4. Neither can such owner, in the absence of express

provision in the contract, discharge into such canal the skimmings or refuse of the sugarhouse on his land, where at the time of the agreement and for years before, such refuse was bridged over such canal and disgorged over across it to pursue a further course. Emptying such filth into the aqueduct would not only impede the flow of the water, but also pollute the water, so as to render the use of it not only of no advantage, but make it dangerous in [supplying the boilers on the favored estate, which, in consequence of the adulteration would be exposed to deterioration and explosion. 5. The owner of the creditor estate has no right to enter upon the subjected one and put up buildings and machinery, unless where it is indispensably necessary for the enjoyment of the right to get and conduct water through the aqueduct. Shaffer v. State National Bank, S. C. of La., March 16, 1885.

22. SPECIFIC PERFORMANCE-[Adoption.]—Performance of Contract to Make a Child One's Heir.The specific performance of a contract in equity is not a matter of right in the party seeking it, but a matter of sound discretion in the court, which may grant or deny relief as may appear equitable under all the facts and circumstances of the case. A contract which is not certain, or which is not fair and just in all its provisions, will not be specifically enforced in a court of equity. Where an attempt is made to effect a distribution of property different from that provided by law by a contract resting in parol, or to establish by parol evidence, as where it is lost or destroyed, the evidence relied upon should be looked upon with jealousy and weighed in the most scrupulous manner. The only significance of a contract to adopt one as an heir or to give him a child's part, being to secure a right to property, is too uncertain as to the amount of property to be reached by it to be specifically enforced in equity against the heirs of the party making the same. A contract by a party having at the time an estate of the value of $20,000 and a wife living, but no children, to take, maintain and educate an orphan girl eleven years old, and for her services until she should attain the age of eighteen, leave and give her at his death, a child's part of his estate, is not based upon a sufficiently adequate consideration and can not be regarded as so fair and just and certain as to be specificaly enforced. Woods v. Evans, S. C. Ill., Mt. Vernon, Feb. 5, 1885.

23. STATUTE OF FRAUDS-[Parol Agreements to Convey Land]― Compensation for Refusing to Perform such Agreement when Consideration has Passed.-Where one verbally agrees to convey land in consideration that another will do some act, which he does (though no action can be brought to enforce the verbal promise,) yet, if the party can't be restored to his original condition prior to the contract, compensation may be recovered for the performance of his part of the contract, to be measured ordinarily by the value of the land. [It was alleged that the plaintiff's mother, being an unmarried woman, and the plaintiff the natural son of the intestate, the latter being desirous of having the custody of his child that he might raise and educate him according to his own wishes, and the child being at the time about three years of age, and living with and in the mother's custody, "the said decedent came to plaintiff's mother and proposed to and contracted and agreed with her as the mother and legal custodian of the child, that if she would surrender the plaintiff to him (the in

testate) and permit him to have the raising, care and custody of plaintiff during the period of plaintiff's minority, in consideration thereof the decedent would take plaintiff, clothe, protect, maintain and educate him according to decedent's pecuniary ability, and in addition thereto, would give him $1,000 in money and the tract of land on which the intestate then lived of the value of $2,700. In giving the opinion of the court, Pryor, J., said: "The agreement on the part of the mother had been fully performed, The infant was in the custody of the father, under a contract that had never been rescinded, and while the promise to convey the land could not be enforced because not in writing, and for the additional reason as alleged that it had been sold by the heirs, its equivalent in value can be given, not as the measure of damages for failing to convey the land, but as constituting in fact the standard of value agreed on by the father for the relinquishment or surrender by the mother: and so of the $1,000 agreed to be paid as alleged. The mother cannot be deprived of the child and no damages awarded or compensation made, because the consideration agreed to be paid was not in writing. [He referred to Berry v. Graddy, 1 Met. (Ky.) 602, as supporting this doctrine.] Benge v. Hyatt's Adm'r., Ky. Ct. of App., March 14, 1885; 6 Ky. L. J. 714.

24. TAXATION - [Constitutional Law.] Statute Exempting Board of Trade from Taxation Unconstitutional.-The Board of Trade of a particular city, in disseminating commercial information and regulating business in that city, does not thereby render any public service to the State, and an act exempting it from State taxation is unconstitutional, for the reason (1) it confers an exclusive privilege not in consideration of public services, and (2) it takes the property of one citizen and gives it to another. [Judge Pryor dissents and holds the services rendered by the Board of Trade are of a public character, and the exempting act is not unconstitutional, and can not be so held upon the complaint of the tax-collecting officer, the State having reserved the right to repeal the exempting act and not having done so]. Barbour v. Louisville Board of Trade, Ky. Ct. of App, April 23, 1885; 6 Ky. L. Repr. 769.

25. TORTS.-[Justice of the Peace.]-Suit against Justice of the Peace for Damages.-A petition claiming damages against a justice of the peace which charges that the magistrate rendered a judgment beyond the scope of his authority or jurisdiction, based on malicious and oppressive motives, is not amenable to the exception of no cause of action. Estopival v. Peyroux, Sup. Ct. of La., New Orleans, May 18, 1885.

26. WARRANTY-[Judicial Sale] -Right of Purchaser at Foreclosure Sale.-A purchaser at a judicial sale to foreclose a conventional mortgage, has the right to call the seizing creditor in warranty to defend a suit, the object of which is to evict him. Such purchaser is entitled to restitution of the price paid; first, from the seized debtor, and next, for deficiency, from the seizing creditor, where the sale is annulled. Citizen's Bank v. Freitag, S. C. La., March 16, 1885.

QUERIES AND ANSWERS.

[Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.]

QUERIES.

3. To what extent does an abstract of title filed by the plaintiff under an order of court, in an action of ejectment or to quiet title, limit him in his proof?

M.

4. A post nuptial agreement is made by B in favor of his wife and certain real estate conveyed to her pursuant thereto, in accordance with § 2504, Revised Stat. Ind. 1881. She took posssession of the jointure thus provided. Long before the husband's decease she, joining with her husband, conveyed the real estate named in the post-nuptial conveyance, for value, and the proceeds thus realized was used in common by husband and wife. No divorce or separation ever occurred. Husband since deceased. Is the postnuptial provision yet in force, and such as to bar the widow from taking under the law? Would she be required to treat the provision thus made as still in force and elect as to how she will take, under the law or under the post-nuptial agreement? Would the subsequent conveyance by husband and wife not be deemed a revocation of the post-nuptial contract? § 2502 id, declares that such jointures take effect at the death of the husband. B.

Query No. 6. [20 C. L.J.99]. A woman owning land in fee simple, married. Children were born of this marriage. The husband,solvent at time of marriage, became insolvent in course of time. Suits were brought on his debts by creditors and judgment had. During the months intervening between the bringing of suit, and the obtaining judgment, husband and wife went into Chancery, and, on petition, her realty was settled on her as a feme sole free from debts, liabilities and control, etc., and with power of disposition by deed, will, or otherwise. The wife devised the land to her children and died. The creditors of the husband levied on what they supposed was the life estate of the husband, as tenant by the courtesy. The devisees enjoined the sale, by bill filed for that purpose, and to remove the cloud of the levy from their title. Whose is the better right, creditors, devisees, or children? Land is situated in Tennessee; all the occurrences took place in that State, and it is the domicil of all parties. Answer fully, and give authorities and reasons.

THERLMORE.

Answered in the affirmative by Tremmell v. Klibold 75 Mo. 255, and numerous authorities cited. See also 76 Mo. 23. M.

Another Answer.-We think the devisees have the better right, for the following reasons: By virtue of the marriage, the husband became entitled to a lifeestate as tenant by the curtesy, which might have

been subject to his debts, provided a lien had been obtained against it, prior to the settlement made by chancery on the wife, with his consent, free from his debts, liabilities and control. This settlement, we think, terminated his interest in the property, and vested same in the wife, and the wife being empowered to dispose of the property by deed, will or otherwise, and having made a will disposing of same to her children, it would seem they would be clearly entitled. Camden, S. C. W. H. R. WORKMAN.

Query 1. [21 C. L. J. 17.] A applied to B for a loan of money, B being a broker who made loans and rediscounted them at C bank in New York City, and when short of funds made loans direct to C bank, and bank paid face of loan, and three per cent. commission to B. B made out negotiable note to C bank, and A signed same, but before delivery A learned that he did not need the money and looked for note, but it was, as he supposed, mislaid, but in fact was stolen by B. B sent note to C bank, and obtained face value of same, and three per cent. commission. Subsequently C bank sold note, before due, to D, for full value. Neither C bank or D had any notice of facts until note became due. Query: 1. Can A get out of note when sued by D by proof of above facts? 2. If A pleads above facts does the plea amount to a denial of the execution of note, so as to put the burden of proof of execution and delivery on D, the plea being sworn to? 3. Can D rest his case on proof of his bona fides, and purchase for value before due? The querist has examined Parsons Notes & Bills, Daniel Nego. Instruments, Edward's on Bills, Chalmer's Digest, and Michigan, Illinois, Wisconsin and New York cases, but want some additional corroborating authority on both sides of question, as he wants to get at the law and collect this note. D'S ATTORNEY.

Answer.-1. No. "The reason is that such negotiable instruments have, by the law-merchant, become part of the mercantile currency of the country, and in order that this may not be impeded, it is necessary that innocent purchasers for value should have a right to enforce payment of them against those who, by making them, have caused them to be apparently a part of such currency." Ingram v. Primrose, 28 L. J. C. P., 294; 1 Sm. L. C., 597, and note to Miller v. Race; 2 Green Ev. § 171; Powers v. Ball, 27 Vt., 662; Wheeler v. Guild, 20 Pick., 545; 10 Cushing, 488; Price v. Phoenix Co., 17 Minn; Swift v. Tyson, 16 Pet., 16; Goodman v. Simonds, 20 How., 365. 2. No. The fact that there had been no delivery by or on behalf of defendant, is "an infirmity of title" cured by transfer to bona fide purchaser for value. Price v. Phoenix Co., supra, and cases therein cited. It was held in Gill v. Cubitt, 3 Barn. & r., 466, that such a plea would "throw upon the plaintiff the burden of proving that he is a holder bona fide and for valuable consideration. Note to Miller v. Race, supra. This doctrine was "shaken off" in Goodman v. Harvey, 4 Ad. and Ellis, 870, which latter case is the well-settled doctrine in this country. "The burden of proof lies on the person who assails the right claimed by the party in possession." See Murray v. Lardner, 2 Wall. 120; Hotchkiss v. Nat'l Bank, 21 Wall. 359; 12 Otto, 442. E contra, in Burson v. Huntington, 21 Mich. 415, it was held that an undelivered note was not a contract, and a thief could not, by stealing it, make it one. The learned judge (Christiancy) seemed to lose sight of the policy of the law in its hardship. 3. The affirmative follows logically from the above cases. T. D. C. Arkadelphia, Ark.

Query No. 2.-[21 C. L. J. 17.] In 1870, a father made a division of his estate among his children, and placed each one in possession of his allottment-had deeds drawn up calling for metes and bounds, but did not sign and deliver then. Two years thereafter, on his death-bed, he sent for a neighbor who had aided him in making the division. The deceased remarked his neighbor when he came: "The deeds I have had prepared are not finished up, and they are over at W's (one of his sons). He was at the time very feeble, but possessed of all his faculties, and his neighbor,* says conscious of the near approach of dissolution. He was asked by one of the witnesses to the instrument if they were drawn as he intended them. He replied: "Yes, Mr. B I think drew them as I directed him." He then signed the papers, and they were witnessed as required in this State under the statute of wills. After signing he was asked by his neighbor what he (the latter) was to do with them. He replied: "Hand them to their owners." One of the grantees remarked: "Not now; let Mr. M (the neighbor) hold them, and if you never call for them he will then deliver them to us;" or, "Let Mr. M hold them for us, and if you never call for them," etc., to which the grantor replied: "Well, well." The grantor died in a day or two, and the papers were delivered to their owners. Was there a sufficient delivery as a deed? If not, will the instrument, if probated, take effect as a testamentary disposition? S.

Marion, N. C. Answer: The deeds drawn in favor of the children, which were neither signed nor delivered, were incomplete, and therefore passed no title. The question to be considered is, whether when said deeds were signed by the father, the grantor, and delivered to a third person, was a sufficient delivery to pass title. At first sight there is a question whether this transaction is a present delivery, or an escrow. After an examination of the law and various authorities we are inclined to hold that it was a present grant, and passed the legal title to the grantees. Whether the placing a deed in the hands of a third person is a present delivery or an escrow, depends upon the intention of the parties. If the delivery depends upon the performance of a condition it is an escrow, otherwise it is a present, grant, though it be to wait the happening of an event. If the deed is to be delivered at the grantor's death it is a present deed. Washburn on Real Property, vol. 3, p. 269. The deeds in this case were given to a neighbor to be delivered to the grantees upon the death of the grantor, thereby creating a present grant, to take effect upon the happening of a certain event, the death of said grantor. A deed may be delivered to the grantee himself, or it may be delivered to a stranger unknown to the person for whose benefit it is made, if so intended by the maker, and this may be an effectual delivery the moment it is assented to by the grantee, even though the grantor may in the meantime have deceased. Wood Conv., 193; Com. Dig. Tait. a 3; Hatch v. Hatch, 9 Mass. 307; Hulick v. Tevil, 4 Gilm. 176; Buffum v. Green, 5 N. H. 91; Morrison v. Kelly, 22 Ills. 626; Foster v. Mansfield, 3 Met. 412. Thus in Hatch v. Hatch, 9 Mass. 307, and in Foster v. Mansfield, 4 Met. 412, a father made a deed to his son, and placed it in the hands of a stranger to be delivered to the grantee. And this was held to be a good deed, although the original delivery was not regarded as an escrow. The cases of Belder v. Carter, 4 Day, 66, and Doe v. Knight, 5 B. & C., 671, involve the same principle. LEWIS P. CLOVER.

Springfield, Ill. ANOTHER ANSWER.-It is common learning that one of the prerequisites to the validity of a deed is