this is an absolute delivery, and the subsequent words are void and repugnant." And in support of this position, authorities are referred to. "But these," Best, C. J. observes, "are at least conflicting." Hudson v. Revett, 5 Bingh. 368; 15 Eng. Com. Law Rep. 472. Though a deed is delivered to a party, there are cases to shew that it may not be a perfect and complete deed. S. C. Indeed the next division of Comyn (Fait A 4) shews that his position about delivery to the obligee himself as an escrow is merely a technical subtlety; for while stating that a delivery cannot be to the obligee as an escrow, he yet lays down that if it be delivered to the party as his deed upon performance of a condition, it is not his deed till the condition is performed, though the party happen to have it before. The English courts have approved this position of Comyn. S. C.; and they have disapproved the passage (Fait A 3) wherein it is said, "if it be delivered as his deed to a stranger, to be delivered to the party upon performance of condition, it shall be his deed presently, and if the party obtains it, he may sue before the condition performed."

The authority quoted for this is Degory and Roe's case, 1 Leon. 152. There it is so stated by some of the judges. But the matter does not appear in Leonard to have been finally decided; and upon looking to the report of the same case in Moore 360, it appears that the case was ultimately decided the other way. Therefore it was deemed an authority in Johnson &c. v. Baker, 4 Barn. & Ald. 440; 6 Eng. Com. Law Rep. 479. The defence in this case being that the deed was delivered as an escrow and on condition that certain specified creditors of the defendant should sign it, it appeared that at the meeting at which the deed was executed by the defendant there was a conversation respecting the difficulty which might arise in case all the defendant's creditors did not execute the deed. The plaintiff's were not present at this conversation; but it was then stated that the deed should be void unless all the creditors executed it; the defendant subsequently but at the same interview executed the deed in the ordinary way, and without saying any thing at the time of the execution; and the deed was then delivered to one of the creditors who was to get it executed by others. The court of king's bench regarding the conversation which took place immediately previous to the execution of this deed as part of the whole transaction, considered the subsequent delivery of the deed by the defendant as not absolute on his part but conditional; and the condition not having been complied with, the plaintiff was nonsuited.

I take it, says Parke, B. to be now settled, though the law was otherwise in ancient times, as appears by Sheppard's Touchstone, that in order to constitute the delivery of a writing as an escrow, it is not necessary it should be done by express words but you are to look at all the facts attending the execution to all that took place at the time and to the result of the transaction; and therefore, though it is in form. an absolute delivery, if it can reasonably be inferred that it was delivered not to take effect as a deed till a certain condition was performed, it will nevertheless operate as an escrow. Bowker v. Burdekin, 11 M. & W. 146.

In the United States decisions have been made on this principle.

The state of North Carolina guarantied bonds of the Raleigh and Gaston railroad company, to the amount of $500,000, and authorized the stockholders of the company to give bonds to the amount of their stock, and individuals who might be disposed to assist them, their bonds to any amount they pleased for the purpose of further indemnity of the state, over and above the property of the company already conveyed for that purpose, "provided such bond or bonds shall in the whole amount to the said sum of $500,000." The construction of this act was, that the state did not intend to receive the bonds of the stockholders or of individuals unless altogether they should amount to the sum guarantied by her; and on the other hand that the several obligors did not intend that their several bonds should be obligatory upon them but upon the same condition. And though the bond of an individual was delivered to the treasurer, who was the agent of the state to receive it, yet that delivery was regarded as conditional; and it was held that to enable the state to recover on the bond, it must appear that before bringing the action there were bonds. amounting in the whole to $500,000. Bennehan v. Webb &c. 6 Iredell 57.

In a case in New York in which lands of an individual were divided into 23 shares, of $5000 each, and sold at that price to such persons as should subscribe for said shares, Walworth, C. held, in an action against a subscriber upon his covenant in the agreement, that even if the parties contemplated that the execution and delivery of the instrument should not be complete until the whole number of shares was subscribed, they might subsequently consent to an absolute delivery upon the subscription of 19 shares only, so as to make it a binding agreement as to these 19 shares. Sandford v. Halsey, 2 Denio 253.

Sometimes a bond appears on its face to have been prepared for more obligors than have executed it. Keyzer v. Keen, 5 Harris 327. It was in respect to a case of this sort that the court of appeals of Virginia had to consider the old rule, where a deed is sealed and delivered to the party himself to whom it is made as an escrow, but to become the deed of him who sealed it, on certain conditions, that in such case let the form of the words be what it may the delivery is absolute, and the deed shall take effect presently as his deed, and the party is not bound to perform the conditions.

Co. Lit. 36a; Shep. Touch. 58, 9; Williams v. Green, Cro. Eliz. 884. Adverting to the distinction between a deed delivered as an escrow to the party to the deed and one that is delivered to a stranger, Cabell, J. declared the reasoning on which it is founded to be not only very technical but unsatisfactory to his mind, and said he was not disposed to carry the doctrine farther than it had already been carried, and he had observed no case in which it had been applied to a deed not on its face perfect and complete, according to the intention of the parties as gathered from the instrument itself. Hicks &c. v. Goode, 12 Leigh 491. In this case the instrument commenced, "We, John C. Goode and Benjamin B. Jones, are held and firmly bound, &c.," and concluded, "witness our hands and seals, &c." It had the signature of Goode with a seal, and under that seal another, but no signature besides Goode's, and it was attested by J. C. Rice as to J. C. Goode. The fact that the delivery by Goode was on condition of the instrument being executed by Jones, being not contrary to but consistent with the face of the instrument, and this fact being admitted and sworn to by that one of the obligees to whom the delivery was made, who though one of the plaintiffs became a voluntary witness for the defendant,-a verdict was found and judgment given for the defendant.

In a case in Massachusetts it appeared that indentures were prepared and executed at Lexington by the parties then present, with an understanding that one part should be taken to Watertown to be executed by two persons, composing a firm there, and then exchanged; the part thus executed to be taken by the plaintiffs instead of the one which they retained. The part so taken was executed by one of the firm in the name of the firm; but the parts were never exchanged. The supreme court of Massachusetts was of opinion that there was no sufficient delivery of the instrument to make it the deed of the defendants. For the part held by the plaintiffs bore the names of two persons as obligors who had not executed it, shewing it to be imperfect and incomplete on the face of it until some

thing farther should be done; and going from the face of the paper to the evidence aliunde, it was shewn that it was not intended to be the deed of the defendants till executed by the other parties named and the counterpart delivered in exchange. Chandler &c. v. Temple &c. 4 Cush. 287.

CHAPTER III.

WHAT IS DEEMED PART OF THE INSTRUMENT; HOW IT IS AFFECTED BY AN ALTERATION OR ADDITION.

1. Effect of an endorsement on the instrument.

As when a bond is given there is often annexed to it a condition that if before such a day the obligor pay a specified sum, then the bond shall be void, so there may be an endorsement on a bond, or other sealed instrument, modifying the condition of the bond, or a covenant in the deed. The endorsement made on the instrument before or at the time of its sealing and delivery, is considered as explanatory of the intention of the parties respecting the operation of the condition or covenant. Broke v. Smith, Moor 679; 1 Bac. Abr. Condition, C., p. 634; Burgh v. Preston, 8 T. R. 483; Gordon v. Frazier &c. 2 Wash. 130; Stone v. Hansbrough, 5 Leigh 422; Smith's ex'or v. Spiller, 10 Grat. 318; Lyburn v. Warrington, 1 Starkie 162; 2 Eng. Com. Law Rep. 338. And in an action on the instrument, a breach may be assigned on the endorsement. S. C., 1 Starkie 162.

In the case of an arbitration bond with a condition limiting the time for the arbitrator to make his award, the time may afterwards be enlarged by consent, so as to sustain an award made within the enlarged time. In an early case in Virginia (1791), where the reference was of a suit in equity, and the enlargement was by an endorsement signed by the parties, a court of equity considered this endorsement as incorporated with and forming part of the condition, so as to constitute one entire agreement; and though there was a period of more than a year between the date of the bond and the date of the endorsement, the court let the endorsement be taken by relation to the date of the bond, so as to bring it within the original rule. Shermer v. Beale, 1 Wash. 11.

There has been more difficulty at law. Brown v. Goodman, 3 T. R. 592, note; Jenkins v. Law, 8 T. R. 87. With respect to the last of these cases, the court of king's bench came to the conclusion that it could not be supported. In its opinion the agreement to enlarge the time for making the award is to be understood as, by reference, virtually incorporating in itself all the antecedent agreements between the parties relative to that subject, as if the same had been formally set forth and repeated therein, and of course incorporating amongst the rest an agreement contained in the condition of the bond, that the submission to arbitration should be made a rule of court; and that with reference to the enlarged time, instead of the time originally specified in the condition of the bond. Evans v. Thompson, 5 East 189. In this case the proceeding was under the 9 and 10 W. 3, c. 15; an attachment was awarded for contemning the rule of court.

There was still a question in respect to an action at law on the bond. There had been a decision against such action where it did not appear that the consent to extend the time was by deed. Brown v. Goodman. And that decision was followed in New York, though it appeared that the parties by an agreement under their hands and seals, endorsed on the bond, had enlarged the time, and the award was made within such enlarged time. Freeman v. Adams, 9 Johns. 115.

The authorities establishing most clearly that deeds or defeasances may be altered by subsequent instruments of the like or as high a nature, (Co. Lit. 237a; Shep. Touch. 398; Com. Dig., tit. Defeasance, B.; Moore 573; Hodges v. Smith, Cro. Eliz. 623,) the question in such a case is whether the parties have by the second deed merely varied the terms of the condition of defeasance, or whether they have substituted the second deed in lieu of the bond, as a new and independent agreement of reference. The court of king's bench considers in such a case that the legal effect of the second deed is to continue the bond in force, subject to a defeasance for the performance of an award within the extended time, and consequently that an action is maintainable on the bond. Craig v. Talbot, 2 Barn. & Cress. 179; 9 Eng. Com. Law Rep. 56.

A like doctrine is maintained in South Carolina, Penman v. Gardner, 1 Brevard 498; New Hampshire, Brown v. Copp, 5 N. H. 346; and Virginia, Price v. Kyle, 9 Grat. 247. For whether (as in Craig v. Talbot,) we regard the endorsement as drawing to it the original condition and making a new defeasance, or (as in Shermer v. Beale,) by the fiction of relation treat the endorsement as incorporated into the condition, in either case, the original condition and the endorsement, are