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 constitute 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. The reasoning 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.

GARDNER v. PARKER.

CHANCERY. 1818.

[Reported 3 Madd. 184.]

RICHARD CROSSLEY being on terms of intimacy with the plaintiff (who had rendered the deceased various services), and being seriously ill, and confined to his bed, two days before his death, in the presence of a servant, gave the plaintiff a bond for £1,800, saying, at the same time, "There, take that and keep it." The defendants were the executors of Crossley, and the prayer of the bill was, that the plaintiff might be declared entitled to the bond; and that the defendants might be decreed to execute proper instruments to enable the plaintiff to recover and receive the money due on the bond; and that the plaintiff might be at liberty to make use of the names of the defendants in any action to be brought against the obligors, the plaintiff offering to indemnify the defendants against all costs.

Sir Samuel Romilly and Mr. Roupell, for the plaintiff.

Mr. Cooke, contra.

THE VICE-CHANCELLOR. [SIR JOHN LEACH.] The case of Snelgrove v. Bailey, 3 Atk. 214, has established, that there may be a donatio mortis causa of a bond, though not of a simple contract debt, nor by the delivery of a mere symbol. The doubt here is, that the donor has not expressed that the bond was to be returned if he recovered. This bond was given in the extremity of sickness, and in contemplation of death; and it is to be inferred, that it was the intention of the donor that it should be held as a gift only in case of his death. If a gift is made in expectation of death, there is an implied condition that it is to be held only in the event of death. The cases of Lawson v. Lawson, 1 P. Wms. 441; Miller v. Miller, 3 P. Wms. 358; and Jones v. Selby, Prec. Ch. 300, furnish this rule. Let it be declared that the plaintiff is entitled to this bond as a donatio mortis causa; and that, indemnifying the executors, he is at liberty to sue in their names, and let the costs be paid out of the testator's estate.

DUFFIELD v. ELWES.

HOUSE OF LORDS. 1827.

[Reported 1 Bligh, N. S. 497.]

THE EARL OF ELDON.

In the first of these causes there is an appeal from the judgment (1 Sim. & Stu. 244) of the then Vice-Chancellor,

1 The opinion only is given.

the present Master of the Rolls, in which he makes this declaration, and from that part of the judgment the present appeal is brought. "This court doth declare, that this court being of opinion that a mortgage security cannot by law be given by way of donatio mortis causa, the appellant, Emily Frances Duffield, was not entitled to the mortgage money's secured by the indentures of the 2d and 3d of November, 1820, and the bond of 12th July, 1820, and by the indentures of lease and release and mortgage, dated the 11th and 12th of July, 1820."

This judgment, therefore, proceeds upon the expression of an opinion, that a mortgage security cannot by law be given by way of donatio mortis causa; and if it be true that a mortgage security cannot by law be given by way of donatio mortis causa, it certainly then would be unnecessary to inquire whether the mortgage of November, 1820, and the bond of July, 1820, and the indentures of mortgage also of the 11th and 12th July, 1820, have been given by way of donatio mortis causa; because if a mortgage cannot be so given, it is quite unnecessary to consider whether, under the circumstances of this case, it can be held that there was a donatio mortis causa.

Before I proceed to state the opinion which I have formed upon this subject, it is my duty to the learned judge, from whose judgment this is an appeal, to say, that probably he has been influenced in the opinion which he has expressed by something which had fallen from me in a conversation with him, in which I had certainly expressed very great doubt whether a mortgage could be made the subject of a donatio mortis causa. I consider it just to state that this is so.

The judgment is commenced by the learned judge in the words I am now about to read. "The case of a bond, I consider to be an exception and not a rule; property may pass without writing either as a donatio mortis causa, or by a nuncupative will according to the forms required by the Statute. The distinction between a donatio mortis causa and a nuncupative will is, that the first is claimed against the executor, and the other from the executor. Where delivery will not execute a complete gift inter vivos, it cannot create a donatio mortis causa, because it will not prevent the property from vesting in the executors; and as a Court of Equity will not inter vivos compel a party to complete his gift, it will not compel an executor to complete the gift of his testator. The delivery of a mortgage cannot pass the property inter vivos: — first, because the action for the money must still be in the name of the donor; and secondly, because the mortgagor is not compellable to pay the money without having back the mortgaged estate, which can only pass by the deed of the mortgagee, and no court would compel the donor to complete his gift by executing such a deed. As to the case where a bond accompanied the mortgage deed" (I shall have occasion to state presently the distinction between the two mortgages), "I was at first inclined to think that as the bond alone, if it had been the only security for the debt, would under the decisions have passed as a donatio mortis causa, so it would draw after it the mort