upon the footing of donatio mortis causa, or as appointments in rature of it. Mark Bell by his will, made in November, 1789, gave to the plaintiff Mary a legacy of £500, and to the plaintiff Jane a legacy of £100 and an annuity jointly with his sister for the lives of them and the survivor. He made several other bequests to a great amount; but gave the bulk of his fortune to his son; who afterwards became a lunatic. The transaction of the gifts to the plaintiffs, who were mutually evidence for each other, rested solely on their testimony; as no other person was present at the time. On their testimony it stood thus: "The testator sent for Mary Tate from London to his house at Battersea. On 25th January, 1790, he observed, that he was worth more than he thought; that his fortune was too much for one person; and therefore he would give away more than he had given by his will. He then desired Jane to give him out of his desk several bonds and securities to the amount of upwards of £3000 which he cancelled by tearing off the seals. He then told Mary, he would give her £200; and desired Jane to give him a cheque out of the drawer of his desk; which

posed, he might have transferred to Mosely consequently this is merely legatory, and amounts to a nuncupative will, and contrary to the Statute of Frauds, and would introduce a greater breach on that law than ever was yet made; for if you take away the necessity of delivery of the thing given, it remains merely nuncupative. To this purpose consider the clauses in the Statute of Frauds relating to this; which seem to me to be applied directly to prevent a mischief of this sort. The clauses are in §§ 19, 20, 21, 22, which have very anxious provisions against dispositions of this kind, requiring three witnesses, solemn declaration of testator, fixing the place of making, and to be reduced into writing in six days after making. These are in cases where no will was made. Next comes another requisite, where a will has been made. If what the plaintiff insists on is right in point of law, that this gift of the annuities by delivery of the receipts was good, yet, though Fly had made a will before, it had been equally good notwithstanding that will, because this relates to revocation of a will in writing by anything amounting to a testamentary act. It would be good against the will, as appears from the cases. Would not that be quite contrary to the plain provision of this clause, taking away delivery of the thing? Here is then a revocation of a will by words only; viz., 'this is yours when I die.' All these clauses therefore will be overturned, if such evidence is admitted. But it is said, if this is not allowed, it will be impossible to make a donation mortis causa of stock or annuities, because in their nature they are not capable of actual delivery. I am of opinion, it cannot without a transfer, or something amounting to that: and there is no harm in it, considering how much of the personal estate of this kingdom, vastly the greatest proportion of it, subsists now in stock and funds; and all the anxious provisions of the Statute of Frauds will signify nothing, if donation of stock, attended only by delivery of the paper, is allowed. It might be supported to the extent of any given value, and would leave these things under the greatest degree of uncertainty; and amount to a repeal of that useful law as to all this part of the property of the subjects of this kingdom. There fore, notwithstanding the strong evidence of the intent, this gift of annuities is not sufficiently made within the rules of the authorities; and I am of opinion not to carry it further. If any doubt remains in any one's mind, I will add (what I very seldom do, though it has been done by my predecessors) that I should be very glad to have this point settled by the supreme authority; for it highly ought to be settled, if there is a doubt, considering so large a property of this kind."

That railway stock cannot be the subject of a gift mortis causa, see Moore v. Moore, L. R. 18 Eq. 474, 483 (1874).

she did; and he immediately filled it up, signed it, and gave it to the plaintiff Mary. This was the cheque, upon which the first bill was founded. At the same time he gave the plaintiff Jane the promissory note for £1000 which was the subject of the other. The testator was infirm, but of sound mind at the time; and was not pressed or asked by either of the plaintiffs to do anything for them."

On January 26th the testator made two codicils; by one of which he revoked a devise to a nephew; and gave a legacy in lieu of it; and gave some diamonds, furniture, plate, &c. In the other he mentioned, that he had cancelled debts due to him from his two nephews; which were the securities he had according to the evidence of the plaintiffs cancelled the preceding day. The codicil expressed his intention by that cancellation to release those debts; and it also discharged other debts from other relations. Neither codicil took notice of the transaction of the preceding day, on which these bills were founded. The testator died four days after the codicils were made. He was eightythree years old and very infirm: but there was no evidence of any particular illness.

The Solicitor-General [Sir John Mitford] and Mr. Hollist, for the plaintiffs.

Mr. Mansfield and Mr. Campbell, for the defendant.

LORD LOUGHBOROUGH, C. By the first of these bills it is supposed, that this cheque is totally ineffectual without the aid of this court. I have given the case much attention from a settled persuasion, that upon the part of the plaintiffs it is a proceeding perfectly fair and honest: but, though that is the color of the facts in the present instance, yet these cases are liable to the observations, which have been made, that to make a stretch to effect gifts, made to persons surrounded by relations who give evidence for each other, would be attended with great inconvenience. There is no doubt, that in this case the transaction is fair. If it fails, it is a case of mistake upon the part of the person, meaning to give, and also of mistake, or delicacy, upon the part of the person, to whom the gift was made; as if she had paid this away either for valuable consideration or in discharging a debt of her own, it would have been good; or even if she had received it immediately after the death of the testator, before the banker was apprised of it, I am inclined to think, no court would have taken it from her. But with all the disposition I feel to make it effectual, I must resist that impulse; as nothing is so dangerous as to decide upon circumstances of favor to particular parties; and, unless I can find some solid ground to support it, so that there will be no danger from the precedent, I cannot decree for the plaintiff. The claim of the plaintiff Mary is supported upon the ground, that the delivery must be donatio mortis causa; and is within the description given by Swinburne; and operated as an appointment of so much money in the banker's hands in favor of the person put in possession of the note, payable to bearer; and in support of this Lawson v. Lawson, 1 P. Will. 441, was cited and commented on. Upon the

The rea

other hand it was contended, that this was a banker's cheque, a common
cash note; and that it would be a strain and confusion of terms to con-
stitute it an appointment; that it is simply a gift: that they cannot
claim as a legacy, nor as a debt; and therefore that this court will not
give it more effect than it would have at law. I have looked into the
cases; of which there have been several upon this question.
soning is generally taken from the civil law, and with great propriety;
as the jurisdiction, in which these cases may as well occur as here, is
the Ecclesiastical Court, which has properly followed the reasoning of
the Roman law. All the passages in Swinburne are only references to
different texts of the civil law; and where he defines donatio mortis
causa, he is coupling the description of a legacy with a very short text
of the civil law; and there is a perplexity in it. He takes it from a part
of the civil law compiled at a time, when the subject itself rested in a
degree of contradiction, and it was the common topic of debate, whether
gifts under such circumstances resembled a gift or a legacy.

There are three species, of which he takes notice; first where a person, not terrified by fear of any present peril, but moved by the general consideration of man's mortality, makes a gift: the second is, where a person, being moved by imminent danger, gives so that the subject is immediately made his, to whom it is given the third is where a person being in peril of death, gives something, but not so, that it shall presently be his, that received it, but in case the giver dies. The two first are clearly mere donations. Swinburne has there taken an authority from the Digest, which he refers to, and has copied. It does state these donations; and rates them all under the general title Donatio mortis causa. That is the time, when it was in dispute. "Julianus libro 17 Digestorum tres esse species mortis causa donationum ait; una cum quis nullo præsentis periculi metu conterritus, sed sola cogitatione mortalitatis, donat. Aliam esse speciem mortis causa donationum ait, cum quis imminente periculo commotus ita donat, ut statim fiat accipientis. Tertium genus esse donationis ait, si quis periculo motus non sic det, ut statim faciat accipientis, sed tunc demum, cum mors fuerit insecuta." If he had looked a little farther under the same title, he would have found there an opposite, but a much more correct, opinion; which finally prevailed, and was established as legal. It is the 27th law. "Ubi ita donatur mortis causa, ut nullo casu revocetur, mors" (that must be supplied) "causa donandi magis est, quam mortis causa donatio: et ideo perinde haberi debet atque alia quævis inter vivos donatio: ideoque inter viros et uxores non valet; et ideo nec Falcidia locum habet quasi in mortis causa donatione." In the institutions in the time of Justinian, Tit. 7, De Donationibus, there is a history given of these contests that had prevailed and a definition is strictly given of what shall be Donatio mortis causa. "Mortis causa donatio est, quæ propter mortis fit suspicionem; cum quis ita donat, ut si quid humanitus ei contigisset, haberet is, qui accepit; sin autem supervixisset is, qui donavit reciperet: vel si eum donationis poenituisset: aut prior decesserit is, cui

donatum sit. Hæ mortis causa donationes ad exemplum legatorum redactæ sunt per omnia; nam cum prudentibus ambiguum fuerat, utrum donationis an legati instar eam obtinere oporteret, et utriusque causæ quædam habebat insignia, et alii ad aliud genus eam retrahebant, a nobis constitutum est, ut per omnia fere legatis connumeretur; et sic procedat quemadmodum nostra constitutio eam formavit: et in summa mortis causa donatio est, cum magis se quis velit habere, quam eum, cui donat, magisque eum, cui donat, quam hæredem suum."

There it is clearly and correctly defined, that it had in effect the nature of a legacy; was liable to debts; and that it was only a gift upon survivorship; and the danger of suffering these gifts to be taken loosely occasioned at the same time with the passage, I have read, an ordinance by the Emperor, that it should be in writing with five witnesses. In the case before Lord Hardwicke, in which all the cases were very fully considered, he takes notice of this perplexity in the reasoning, before it was properly defined; but considers clearly, that by the law of England it cannot be a present, absolute, gift, but to take effect on the death of the party; and, following the line there, and supporting his own authority, he considers delivery essential. It is not necessary in this case to discuss, whether delivery is necessary in all cases. Perhaps it might not be difficult to conceive, that it might be by deed or by writing. It is clear, it could not be by mere parol; as saying, "I give," without an act, does not transfer the property. So far I concur with the reasoning in that case. It might be considered, if the case should arise, whether there would be any objection to a formal deed. I should think it not within the jurisdiction of the Ecclesiastical Court : and that the property so given is not to be possessed by the executor. It is bad against creditors; and therefore within the reach of creditors; but does not regularly fall within an administration; or require any act by the executor to constitute a title in the donee.

It was observed for the defendant, that the case of Lawson v. Lawson was overturned by Lord Hardwicke. I have caused the Register's book to be searched; and the report in P. Williams is certainly inaccurate but the decision is perfectly right. The only doubt remaining with regard to the case was, whether it was not necessary in point of form to have authority from the Ecclesiastical Court: but I think the Master of the Rolls was right in not requiring probate. As it stands in the book. you take it only as matter of fact and evidence, that the money, for which the bill was given, was to be applied in mourning: but by the Register's book that was actually indorsed upon the bill. According to that in fear of a sudden change he did give to the defendant £100. That was an immediate gift. It proceeds to say that he drew a bill upon the defendant Middleton payable ten days after sight; and by a note in the bill of his own handwriting declared it to be for this defendant for mourning; and refers to the said note in writing in her custody. There were also contained in it directions concerning the children's mourning. The only question that could arise there, had the

argument taken a larger scope, than it did, was, whether this note should be proved. In the report you do not see the ratio decidendi. In one part the Master of the Rolls states it as an appointment; in another he lays stress on its being for mourning: but it was not necessary to prove it; as, taking the whole bill together, it is an appointment of the money in the banker's hands to the extent of £100 for the particular purpose expressed in a written appointment; which is a purpose, that necessarily supposes his death. Therefore that case is perfectly well decided. But upon that decision I cannot say, that in all events drawing a cash note upon a banker is an appointment of the money in his hands. Suppose, I was to apply that idea of an appointment, this is to take effect presently; and has no relation to his death. The plaintiff might have received it immediately. There is no reference at all to the case of her surviving him. It was not appointed under such circumstances, that it could not take effect but in case of his death: but it is stronger in this particular case; as by the evidence it was given, and fairly given. At the time he made this gift the act he was about to do was not legatory, to bequeath; on the contrary from the conversation, that took place, and the act, he was about to do, having considered what he had done by his will he meant to give more; and in doing so to make effectual gifts. Under that idea he cancelled those securities; not meaning them to be unavailable only in case of his death. In the same way he meant what he did for these plaintiffs as immediate gifts. Therefore I can make no more of this. I do not like to take it up upon favor to the parties, or to speculate upon it as an appointment. Being a gift it cannot be sued for as a legacy. I cannot make it better. If the law will not allow her to recover against the executor any more than against the banker, I lament it: but I cannot give it more effect than it can have at law. I do not know, whether it has been considered as to the possibility of bringing an action against the executor. If the promissory note can be made good at law, one should feel no reluctance to make it good: but they must stand, as they are at law; and this court cannot give the parties any relief. If there is anything intended to be done at law, I should have no difficulty to retain the bill; as if any accounts were to be had as to assets. It was admitted, that the assets were abundant.

The Attorney-General [Sir John Scott] for the plaintiffs, said, that as to the promissory note they had opinions of common lawyers in favor of an action. He therefore desired time to consider upon it.

THE LORD CHANCELLOR asked, whether any hope was entertained, that they could recover at law upon the draft on the banker? The Attorney-General said, he did not know of any.

The first bill was then dismissed: but upon the application of the Attorney-General, without prejudice to any action at law; in order that it might not be considered as an authority against such action.