either of the parties die, or comes under a disability, or change of legal status. In McDonald vs. Huff, 77 Cal., 279, it was held to apply to an intervening grantee who took with knowledge of the escrow. But the fiction will not be resorted to where injustice will result, as where it will prejudice the intervening rights of third persons who are not parties or privies. Thus it has been held not to affect judgment creditors. 6 Wend., 666; 7 Colo. App., 360; 30 Wis, 644

If no time of performance is stipulated the condition must be performed in a reasonable time. Cannon vs. Handley, 72 Cal., 133. But it has been held that no fault can attach until after a demand and failure or refusal to perform. Gammon vs. Bunnell, 22 Utah, 421; 64 ac., 958. Where a time is set, a failure to perform within such time wili not preclude the grantee after due performance, where time is not an element of the contract, or where the grantor has waived the condition. McDonald vs. Huff, 77 Cal., 279; Witmer Bros. Co. vs. Weid, 108 Cal., 569.

When escrow contract has been made and the instrument deposited, the depositary becomes the agent, or perhaps better, the trustee, of both parties. When the condition is performed he becomes the mere agent or trustee of the grantee, and his possession of the deed or other instrument is the possession of the grantee. The depositary must have power to judge whether the condition is performed, unless he is relieved of this duty by stipulation of the parties. A past performance has no effect on the status of the instrument. An entire performance of the condition is necessary. The depositor cannot require more. But generally a strict compliance is required. An unauthorized delivery will sometimes be upheld if no real injury results or if the depositor himself is to blame.

A depositary who violates the terms of the escrow contract is liable for the loss sustained thereby. An interesting case involving the duty the depositary owes his principal was recently decided by the Supreme Court of the United States. In Citizens' National Bank vs. Davisson, 229 U. S., 212, Ann. Cas. 1915, A. 272, it is held that a memorandum endorsed by the cashier of a bank upon an envelope containing a binding contract for the sale of land and the vendee's check, stating that the same were to be held in escrow until a specified date, pending the furnishing of an abstract title, a favorable report thereon, and final settlement, was not a complete expression of the agreement of the parties, but must be read in connection with the con

tract of sale, and the bank must answer to the vendors if it turned the check over to the vendee after the time fixed by the memorandum, but while the vendors were doing all they were called upon under the contract to make a good title, since it was the duty of the bank to read the contract and observe its provisions.

The question whether the agreement between the parties should be accepted into the escrow is one on which I believe the various title companies are not agreed. The acceptance of it may in some instances place a heavier burden on the company, but, on the other hand, it is impossible to determine whether there is a valid escrow without knowledge of the agreement, and death of one of the parties, prior to the completion of the transaction, may terminate the authority of the company in case there is not a legal escrow. In any event the escrow instructions should be written out by the company's agent in as complete, clear and yet concise a manner as possible, and these in themselves may constitute a sufficient contract or memorandum when signed by both parties.

A recent case on the subject of the authority of an agent to modify escrow instructions is Jones vs. Title Guarantee and Trust Co., 55 Cal. Dec., 828, decided June 3rd, 1918, in which the Court holds that an ostensible agent for the purpose of delivering escrow instructions, being a special agent, has no authority as such to thereafter modify or change the instructions in material matters without the knowledge or consent of his principal. Undoubtedly in dealing with persons who are known to be agents the company should exercise the greatest caution.

THE AMERICAN BAR ASSOCIATION.

The annual meeting of the American Bar Association will be held at New London, Connecticut, on Wednesday, Thursday and Friday, September 3, 4 and 5, 1919.

Headquarters will be at The Griswold, Eastern Point, where the offices of the secretary and treasurer will be located in the hotel. They will be open for registration of members and delegates, and for sale of dinner tickets on Monday morning, September 1, at 10 o'clock.

All meetings of the Association and of the sections committees and allied bodies will be held in The Griswold.

Addresses will be delivered by Hon. Frank B. Brandegee, President George T. Page, Dr. David Jayne Hill and Hon. Albert C. Ritchie. A large attendance is expected.

STATE JUDGMENTS UNDER THE FULL FAITH AND CREDIT

CLAUSE

In the case of Sithan v. Gray (1918, Mich.), 168 N. W. 998, the plaintiff's claim was based upon a Pennsylvania judgment. One of the defenses relied upon was that the defendant had never been served with process nor given any notice of the suit. In sustaining the validity of this defense the Michigan Court said:

"When a suit upon a foreign judgment is brought in the courts of this State, that judgment may be impeached for lack of jurisdiction in the foreign court to render the same, irrespective of the recital of jurisdiction contained in the record of judgment."

While agreeing, for reasons hereafter stated, with the actual decision, one may well express doubts of the accuracy of the reasoning upon which it was based. To begin with, a judgment of a sister State is not a “foreign judgment" in the ordinary sense of that term. Under the full faith and credit clause of the United States Constitution and the statue passed by Congress in pursuance therof, the Pennsylvania judgment created in Michigan a "debt of record" and was entitled to the "same faith and credit" to which it was entitled "by law or usage in the courts of the State from which" it was taken.1 Nothing but confusion can result from calling such a judgment a "foreign judgment" without explanation or recognition of the fact that it stands in the Michigan courts upon a different footing from judgments rendered by courts in foreign countries. That the judgment even of a sister State may be impeached for "lack of jurisdiction," however, is a wellrecognized rule,2 and it may well be asked in what way as regards the question before the court such a judgment differs from a truly foreign judgment.

The first difference-one which courts who confuse the two seem to forget-is that the faith and credit to be given to the judgments of a foreign country, as distinguished from those of other States, is a matter left to each State to settle as it pleases, whereas the faith and credit to be given to judgments of sister States is fixed by Federal and

1 U. S. Const. Art. 4, sec. 1: U. S. Rev. St. sec. 905.

2 See the authorities discussed below in notes 7 and 8.

not by State law. The Federal law upon the subject requires each State to give to State judgments "such faith and credit as they have by law or usage in the courts of the State from which they are taken."4 However, in order to be entitled to this faith and credit the alleged judgments must be valid judgments, i. e., they must have been rendered by a court that had "jurisdiction." This word, like so many of our legal words and phrases, is ambiguous. As applied to courts its primary significance is power to take valid action which will stand until reversed by some higher judicial tribunal.5 With reference to a given person a State court may lack such power for either one or both of two reasons: (1) Because facts do not exist which confer upon the State of whose governmental organization the court is a part, "jurisdiction" to alter the defendant's legal relations by State judicial action; (2) because, although these facts do exist, there has been no compliance with the rules of law in force in the particular State in question, which govern the acquisition by the court of "jurisdiction" to alter the defendant's legal relations. If with reference to a given defendant the facts exist necessary to confer "jurisdiction" upon the State generally, and there is a compliance with the rules of law established by the State for the acquisition by the court of jurisdiction over him, any personal judgment that may be rendered will necessarily be valid and entitled to full faith and credit. To determine, therefore, whether an alleged personal judgment of one State is entitled to full faith and credit in other States we must satisfy ourselves of these two things.

Consistently with common-law notions as to "jurisdiction" of an independent State or country, our courts have held that, so far as the entry of a personal judgment is concerned, no one of our States has jurisdiction. A "judgment" entered against such a defendant who does not submit to the jurisdiction is therefore not entitled to full faith and credit.8 This is the point actually determined in a large number

3 In Chicago Title and Trust Co. v. Smith (1904) 185 Mass. 363, 70 N. E. 426, in which the suit was based upon an Illinois judgment, the court said: "When the judgment debtor sues here, his defenses are not regulated by the law of Illinois but by the law of Massachusetts." (The boldface is the present writer's.) Nowhere in the opinion is there an intimation that there is such a thing as the full faith and credit clause or an act of Congress dealing with the matter. The actual decision in the case is equally extraordinary, as is shown in note 7, infra. 4 The italics are the present writer's.

5 See Cook, "The owers of Courts of Equity" (1015) 15 Columbia L. Rev. 106. 6 Because of limitations of space the discussion is confined to so-called personal judgments.

7 Pennoyer v. Neff (1877) 95 U. S. 714; (1917) 26 Yale Law Journal, 492. Our common-law notions of "jurisdiction" in this sense are to some extent arbitrary, as well as at variance with ideas prevailing in civil law countries.

8 Knowles v. Gaslight and Coke Co. (1873, U. S.) 19 Wall. 58; Old Wayne Life Association v. McDonough (1907) 204 U. S. 8, 27 Sup. Ct. 236.

of cases commonly cited to establish the proposition that in a suit in one State on the judgment of another State the jurisdiction of the court to render the original judgment may always be injured into by the court in which the new suit is brought.

Carefully to be distinguished from the cases just discussed are those in which the defendant was in the State, or, if out of it, was at least a citizen of it, at the time of the proceedings which terminated in the judgment. As the State had "jurisdiction" over him, the only question is the second one, viz., were the rules for the acquisition by the court of jurisdiction complied with? It is at this point, it is believed, that some courts have gone astray. A defendant in a suit in one State on an alleged judgment of another State, although admitting that he was in the State or a citizen thereof at the time of the proceedings which terminated in the "judgment," claims to be entitled to show that he was never personally served. In the view of the present writer, whether he is entitled to do this depends upon whether the rules of law in force in the State in which he was, or of which he was a citizen, made the judgment valid without such service. If they do, then the judgment is valid and entitled in other States to full faith and credit.

Under what circum

Our inquiry then shifts to the question: stances, if any, do the laws in force in the various States make possible the rendering of a valid personal judgment without personal service? Lack of space forbids the discussion of more than a single class, viz., those in which, although there actually was no service or notice of the suit, the record contains a return by the proper officer, of personal service made. It is the law in many States that the return by the proper officer of personal service within the jurisdiction cannot be attacked, either in the proceeding itself,10 or collaterally,11 or even by bill in equity.12 The defendant's only recourse in such a State is a suit against the sheriff or his bondsmen. This view, which does not

1

9 If the record contains no such recital and there was actually no service, where the law in force required it, the alleged "judgment" is of course a nullity both in the State in which rendered and elsewhere. Price v. Schaeffer (1894) 161 Pa. 530, 29 Atl. 279.

10 Regent Realty Co. v. Armour Packing Co. (1905) 112 Mo. App. 271, 86 S. W. 880 and cases cited in the monographic note in 124 Am. St. Rep. 757, 758 11 Allurd v. Voller (1897) 112 Mich. 357, 70 N. W. 1037; and cases cited in 124 Am. St. Rep. 768.

12 Taylor v. Lewis (1829), Ky.) 2 J. J. Marsh. 400; Smoot v. Judd (1904) 184 Mo. 508, 83 S. W. 481; Reiger v. Mullins (1908) 210 Mo. 563, 109 S. W. 26. In the prevailing and dissenting opinions in the second of these cases the authorities are exhaustively reviewed. See also note in 124 Am. St. Rep. 764. The plaintiff must, of course, be unaware of the falsity of the return.

Compare the similar rule as to the unauthorized appearance of attorney. Bunton v. Lyford (1859) 37 N. H. 512. Contra: Vilas v. Plattsburgh, etc., R. (1890) 123 N. Y. 440, 25 N. E. 941. See 21 L. R. A. 855.