fendant might have obtained better terms if the opportunity had been given him. As to the costs, the purchaser has a right to claim an indemnity, and he is not indemnified unless he receives the amount of costs paid by him to his own attorney 1." Smith v. Compton, 3 Barn. & Ad. 407. 1. Delivery.]—A deed is executed by signing and delivery. All the matter and form of a deed must be written before the delivery of it, though the blanks may, if not very material, be filled up after its execution 2. The deed must be read, if any party require it, otherwise it will be void as to him. 2 Paget v. Paget, 2 Ch. Rep. 187; Doe v. Bingham, 4 672. Barn. & Ald. 2. Delivery is either formal or constructive.]—The delivery of a deed is either formal, or constructive. A formal delivery is where the party at the time of executing the deed uses apt words to denote his intention, that from that time it shall operate as his deed. The delivery is said to be constructive when the intention of the party making the deed to become bound by it is manifested, not by any express declaration of such intention, but by some act or conduct which is considered in law as equivalent to such a declaration; as by the delivery of the deed to the party in whose favour it is made,-or by throwing it upon the table in his presence, with the intent that he should take it,—or by saying, "Take it-it is sufficient for you3." In these and such like instances the intention of the party to perfect the deed is made manifest by the act done by him; and it is therefore considered a constructive delivery of the deed. No form or particular words being necessary to the valid delivery of a deed, it is in all cases a mere question of intention of the party executing the instrument which makes it operate as a deed. This is well illustrated by a case of Staunton v. Chambers. seals obligation, and throws it upon the table without other cir- Co. Litt. 36. a. 66 4 Com. Dig. Fait," (A. 3); Vin. Ab. "Faits," (K.). "The obligor Hale's MSS. Shepp. 57. 2 Id. 58. p. 3 Johnson v. Baker, 4 Barn. & Ald. 440; Murray v. Earl of Stair, 2 Barn. & Cres. 82. cumstances; this is not a delivery. But if he throws it towards the obligee, or if the obligee immediately takes it and the obligor says nothing, it is a delivery;" because either of these acts unequivocally denotes the intention of the obligor that the act shall operate as his deed. Hence, although a delivery to the party himself, or his authorized agent, is good by the usual formal words, or even without them by manual delivery, yet if the delivery be made to a stranger, it is necessary to make some express declara. tion or intimation that it is delivered for or on the behalf of, or to the use of the party to whom it is made; because, where an instrument is delivered to a stranger, and nothing is said at the time of delivery, no inference of intent arises from the mere act of delivery 1. 3. Conditional Delivery,—Escrow.]-The delivery of a deed may be either absolute or conditional. In the latter case it is not delivered as a "deed," but as an escrow," that is, a scrow or writing which is not to take effect till the condition has been performed, when it becomes a good deed. In order that a deed may operate as an escrow, it is essential that the delivery be made to a stranger; for if it be to the party himself the deed becomes absolute, and he is not bound to perform the condition; and from a in the Touchstone 2, it seems also to have been thought at passage one time to be material, that "the form of words used in the delivery be apt and proper;" as for instance, "I deliver this to you as an escrow to deliver to the party as my deed, upon condition that he do deliver to you 201. for me," or on any other condition then mentioned; but it has now been determined, conformably to reason and good sense, that whether the instrument shall operate as a deed or an escrow is a question of intention to be determined by a reference to all the circumstances of the case 3. 4. Execution by Attorney.]-Where a deed is to be executed by an agent or attorney of the vendor, the clause of attestation should express, that "C. D. of &c. [the attorney or agent], by virtue of a power or authority enabling him thereunto, (a true and attested copy whereof, or a counterpart whereof, is hereunto annexed), hath hereunto set the hand and seal of the said [the principal], the day and year, &c." The agent or attorney ought to subscribe the name of his principal, and not his own, as is frequently done. If he sign in his own name he renders himself personally responsible, and his principal cannot maintain an action on the deed5; for "where there Hardy, 5 Barn. is such a deed as is technically called a deed' inter partes,' that is, a deed importing to be between the persons who are named in Wilks v. Back, 2 East, 142. 3 Berkeley v. & Cress. 355. S. 322; and 1 Storer v. Gordon, 3 Mau. & see Barford v. Stuckey, 2 Brod. & B. 333; Salter v. Kidgley, Carth. 76. Harrison v. Jackson, 7 T. R. 207. it as executing the same, and not, as some deeds are, general 'to all people,' the immediate operation of the deed is to be confined to those persons who are parties to it; no stranger can take under it, except by way of remainder, nor can any stranger sue upon any of the covenants it contains 1. The proper form of signature is, "A. B. (the principal) by the said C. D. his attorney;" but it is immaterial whether the attorney puts his name first or last, provided it clearly appear that the deed was executed in the name of the principal. The words to be used in the delivery should be, “I deliver this as the act and deed of the within-named [the principal],”—and the attestation may be "signed, sealed, and delivered, &c., by the aforesaid [the agent], in the name, as the attorney, and as the act and deed, of the within-named [the principal], by virtue of &c., in the presence of " &c. The power must be under hand and seal, or it will not authorize the execution of a deed 2. It is usual and proper to annex an attested copy of the power to the deed, the power itself remaining in the hands of the agent for his justification. A better mode, however, is to have two parts of the power, the one to be retained by the attorney, the other to accompany, and be annexed to, the conveyance; as a purchaser under a deed executed by attorney has a right to call for the power to satisfy himself of the competency of the agent's authority 3. As a power is revoked by the death of the party who 11 Esp. 90. gives it, it is proper, where a conveyance is executed by attorney, for the purchaser to retain the purchase-money, or pay it into the hands of a third person, on his executing a declaration to stand possessed of it for the purchaser until it be ascertained that the vendor was living at the time of executing the conveyance, and if not, then to return it to the purchaser, unless the heir of the vendor confirm the purchase. A purchaser is not obliged to accept the execution of the conveyance by attorney 4; and therefore, Mitchell v. when the vendor is abroad, a better plan, and safer for all parties, Neale, 1 Ves. is, for the vendor to convey to trustees in trust to sell, and receive and apply the purchase-money; for then the conveyance will be valid notwithstanding the death of the vendor in the interim. 5. Execution of a Deed under the stat. 11 Geo. 4 & 1 Will. 4, e. 60.]-On a conveyance to new trustees, appointed by the Court of Chancery under this act, the name of the old trustee should be inserted throughout the conveyance, as if it was to be executed by him personally, and the deed should be executed in this form: "A. B., [the old trustee] by C. D. [the person appointed by the court to convey"]. There must of course be a recital sen. 679. of the order of the court authorizing him to convey. Where a person has been ordered under the 8th section of this statute to convey trust property in the place of a refusing trustee, a new deed is not necessary; but he may execute the deed tendered to the trustee, and it should be expressed in the attestation clause that he has executed it in the place of the trustee in pursuance of the 'Ex p. Foley, 8 order1. Sim. 395. 2 Per Holt, 423. 6. Execution of a Deed by a Corporation.]—It is incidental to every corporation to have a common seal to authenticate their proceedings. When a corporation affixes its seal, it cannot do so of course by its own hands, the seal must be affixed by one of the members, or by an officer appointed for that purpose by the consent of the whole body. Hence, "if a person pretending to be mayor of a corporation put the corporate scal to a deed, yet it is not by that the deed of the corporation 2." The affixing of the Anon. 12 Mod. seal must also be done with the intent to pass the estate, otherwise, as has been said, not very accurately perhaps, it operates no more than a feoffment would do without livery of seisin; and, consequently, in a case where the seal was actually affixed to the deed by the order of the corporation, with a direction to their clerk to retain the conveyance in his hands till the accounts were settled with the grantee, it was held that no estate passed 3. It is obvious, that under such circumstances the instrument to which the corporate seal was affixed was merely an escrow, its operation being suspended till the annexed condition was fulfilled. Derby Canal Co. v. Wilmot, 9 East, 360. 4 Gordon v. Secretan, 8 v. Morrice, 3 7. Proof of a Deed.]-A deed cannot be given in evidence without proof of its execution, except the party producing the deed claims under it 4; or by his conduct have recognised its East, 549; Orr validity5; or it be thirty years old, and then it proves itself if it be shewn that it comes from the proper custody 6, or it be produced by a party whose possession of it may be reasonably accounted for, although his custody be not strictly the proper one7. Hence has originated the attestation clause. Attestation is not essential to the deed itself, but only constitutes the evidence of its authenticity. It is not necessary that the witness should actually see the party execute the deed, for if he be in an adjoining room, and the party, after executing the deed, brings it to him, tells him he has done so, and desires him to subscribe his name as a witness, it is sufficient 8. The execution of a deed by a cor$ Park v. Mears, poration is proved by shewing that the seal on the deed is the seal ming, 6 Barn. & C. 28. 6 Wynne v.Tyrwhitt, 4 Barn. & Ald. 376. Doe v. Samples, 8 Ad. & Ell. 151. S 2 Bos. & P. 217. of the corporation, not by giving evidence of its being affixed by them. Hence, to the deed of a corporation no attestation is ne cessary, as in the case of the execution of a deed by an individual in his private capacity. In a late case 1, the seal of the Bank of England was affixed to an indenture of feoffment by the Bank, by means of a paper wafered to the indenture, on which paper was written, "Sealed by order of the Court of Directors of the Governor and Company of the Bank of England, 12th Dec. 1839. J. K., Secretary." It was objected that J. K. was an attesting witness, and ought to be called to prove the affixing of the corporate seal; but the court of King's Bench held that he was not. Lord Denman said: "Supposing this were a distinct attestation, I am not prepared to say that it would not be necessary to call the witness, although his attestation was unnecessary. But in the present case we cannot assume that what is called an attestation is more than a memorandum that the act was done by order of the Governor and Company of the Bank of England. Probably it was no more. We cannot, therefore, treat it as an attestation." And Littledale, J., observed: "When a corporation fixes its seal, it cannot of course do so by its own hands. This memorandum merely imports, that the party signing it is the person who is deputed by the corporation to affix its seal, and who accordingly does so by that authority." Doe d. Bank Chambers, 4 of England v. Ad. & E. 410. 2 8. From what Time a Deed operates.]—Unless the deed be delivered as an escrow, it operates from the time of its delivery, and not from the day of its date 2; and therefore, if the date be Steele v. Mart, false or impossible, evidence must be given of the time of its delivery, from which time only it takes effect 3. 9. Effect of imperfect Delivery.]—Where a deed, after it has been executed, is still retained in the possession of the grantor, questions have frequently arisen as to whether it shall have any operation, or how far its operation is to be qualified under such circumstances. Questions of this kind have for the most part occurred on conveyances made for the purpose of qualifying a party to sit in the House of Commons, to sport under the game laws, or some other evasion of legal duties or penalties, where this was the sole object, and there was no intention to pass the estate; though, in some few instances, the question has been whether the deed was ever complete, or whether it had not been abandoned. The principles of a court of equity, as applied to this subject, differ essentially from those at law, and may therefore with convenience be considered separately. 10. Effect of imperfect Delivery of a Deed at Law.]-Where 4 Barn. & C. 272. 3 Goddard's case, 2 Rep. 4 b; Cromwell v. Grunsden, 2 Salk. 463. |