would be a good donatio mortis causa a cheque should not be so too. A distinction has, however, been drawn between the case of a bill of exchange and that of a cheque payable to bearer, and if these cheques had been made payable to bearer and had not been presented for payment at the bank on which they were drawn before the donor's death, I should probably have considered that I was bound to hold that there was not a good gift.

But these are checks payable to order; and it is clear that the testator knew that they could not be presented for payment either on the day they were drawn or the subsequent day. I must attribute to him the knowledge that the cheque would not be paid for some time, and on that ground I come to the conclusion that this case differs from the other cases of cheques. But I have also the decision of Lord Loughborough in Tate v. Hilbert, 2 Ves. 111. He there says (p. 118): "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."

In this case I have the very distinction thus pointed out by Lord Loughborough. Mrs. Pearce did pay away the proceeds of the cheque, and, it would seem, amongst the husband's creditors. And I think that when a man gives his wife a cheque it is in substance as complete a gift as if he handed her the cash. It is, however, said that in the report of Tate v. Hilbert, in Brown's Chancery Cases, an additional circumstance is mentioned in the judgment, and Lord Loughborough is made to say (4 Bro. C. C. 291): "If the note had been paid away for valuable consideration, and the money received at the bankers before notice of the death of the party, or immediately after, it might have. availed." If there is any real discrepancy, I think that the report in Vesey is probably the more accurate, and that it was intended to be held that an actual dealing for value with a note would complete the gift as a valid donatio mortis causa.

I consider, therefore, that Mrs. Pearce has made out a good title to the proceeds of the cheques, and I will answer the first question in the case in the affirmative.

THE cause petition was filed for the administration of the personal estate of Margaret Morgan, who died intestate on the 23d of January, 1867, by Kate M'Gonnell, who claimed as a donatio mortis causa a sum of £70 58. 8d., deposited in the Abbey-street Savings' Bank in the name of the deceased. Master Litton, to whom the matter was referred, by an order of the 18th of January, 1868, declared that the gift by the intestate to the petitioner of the savings' bank book constituted a good donatio mortis causa of the £70 5s. 8d. and interest standing to her credit in the bank.

[The statement of the evidence is omitted.]

A printed copy of the rules of the savings' bank was produced. The following rules were relied on: —

That the offices of

"XIII. PRODUCTION OF THE DEPOSITORS' BOOKS. the savings' bank shall be open on five days of the savings' bank year, on which the book of each depositor shall be produced at the office of this savings' bank for the purpose of being inspected, examined and verified with the books of the institution by the auditor or auditors."

"XV. REPAYMENTS. - Depositors by themselves, or by any party producing a power of attorney from them, shall be repaid the whole or any part of the sums they shall have lodged, together with the interest due thereon, on giving one week's notice to the clerk in attendance at the office of the institution. Powers of attorney are issued free on giving notice."

Mr. Walsh, Q. C., Mr. O'Hagan, Q. C., and Mr. Roper, in support of the appeal.

Mr. Lawless, Q. C., Mr. Jellett, Q. C., and Mr. Daniel, in support of the Master's order.

THE MASTER OF THE ROLLS, [JOHN EDWARD WALSH, first considered the evidence. This part of the opinion is omitted. He then continued.]

If, therefore, the matter had come before me originally, I should have held that the evidence is not sufficient to establish a gift of this kind. But Master Litton having held otherwise, though I do not think that the principle laid down in the case of Gillespie v. Croker, 15 Ir. Ch. R. 182, would apply to this case, still I cannot but hesitate before coming to a different conclusion as to the question of fact, so as to act against his opinion. However, having heard the question of law ably discussed, I have come to a conclusion unfavorable to the gift on it also.

To constitute a valid donatio mortis causa, there must be an actual delivery of the subject of the gift, and a delivery of a thing by way of 1 Part only of the case is given.

symbol, according to the opinion of Lord Hardwicke in Ward v. Turner, 1 W. & T. 831, is not sufficient. In Snellgrove v. Baily, 3 Atk. 214, Lord Hardwicke held that a bond could be the subject of such a gift. In Duffield v. Elwes, 1 Dow & Cl. 10; 1 Bli. N. S. 536, the House of Lords held that the same doctrine applied to mortgages, following an opinion previously expressed by Lord Hardwicke in Richards v. Syms, Barnard. Ch. Rep. 90. This doctrine must originally, I rather think, have been founded on the peculiar rules applicable to a specialty of which profert was necessary at law, and the gift of which, with power to retain or destroy it, was consequently a gift of that without which the debt could not be enforced, and in analogy to the distinction established respecting bona notabilia. The doctrine has been since supported on the ground that the specialty itself creates and gives a peculiar character to the debt. It has also been extended to other contracts not under seal, ex. gr. to bills and promissory notes. It was carried very far by Lord Romilly in Veal v. Veal, 27 Beav. 303, where he held that an unindorsed promissory note payable to order can be made the subject of such a gift. The contrary appears to have been held by Lord Hardwicke in 1735, in Miller v. Miller, 3 P. Wms. 358, and in Tute v. Hilbert, 2 Ves. 111, in which Lord Rosslyn considered that with instruments of this nature no greater effect could be given to the gift in equity than it has at law. In Rankin v. Weguelin, 27 Beav. 309, relied on by Lord Romilly, it does not appear whether the notes were indorsed or not. But the law has fluctuated much since the earlier decisions. Moore v. Darton, 4 D. & Sm. 517, was a case where a creditor gave up to a person on behalf of the debtor a special memorandum of the terms of the loan, partly in the form of a receipt. The decision is put on the ground that the memorandum was something more than mere evidence of the debt; and the Vice-Chancellor, Sir Knight Bruce, seems to lay stress on the circumstance that the gift was to the debtor. It was, in this respect, something like the case of Drury v. Smith, 1 P. Wms. 404. The distinctions which the Vice-Chancellor takes in his judgment show, I think, that he would not have held the delivery to a third person of a receipt for money a donation to such person of the debt acknowledged in it.

So long ago as 1710, exchequer tallies were held by the Master of the Rolls in Jones v. Selby, Prec. in Ch. 300, to be proper subjects of a donatio mortis causa. Lord Cowper, however, reversed his decision, though, on a view of the case, not necessarily inconsistent on this point. In Ward v. Turner, 2 Ves. 431, Lord Hardwicke held that receipts for South Sea annuities were not capable of being made the subject of such a gift. That was a very carefully considered decision. South Sea annuities were, like the savings' banks, the subject of State regulations. The receipts were given by the managers to parties on their making payment. Subsequent authorities refer to Ward v. Turner as one by which future judges ought to regulate their decisions, and as laying down that rules in favor of such gifts ought not to be extended.

I do not quite go with the inference drawn from Lord Romilly's observation in Hewitt v. Kaye, L. R. 6 Eq. 200, where he speaks of an I. O. U. as in the same class as a promissory note. Such a document is not a security for money in the sense in which a bond or a bill or a note is. It is merely evidence of a debt.

But the case most strongly in favor of the petitioner's claim here is Amis v. Witt, 33 Beav. 619; 1 B. & Sm. 109, where it was held that a deposit note of a bank could be made the subject of a donatio mortis causa. The form of the document does not appear from the report; it may have contained something special. At all events it was one which should have been given up on payment. The judgment in the case at law seems to have gone almost entirely on the policy of insurance, which was a special contract by the insurance company. Both reports, that in the Queen's Bench and in Beavan, are unsatisfactory.

In Hewitt v. Kaye, L. R. 6 Eq. 275, it was held by Lord Romilly-— the same judge who decided Veal v. Veal- that a cheque of the donor could not be made the subject of a donatio mortis causa. The ground of the decision is that a cheque is a mere order for payment of money, which may be revoked by death, and not a contract creating liability. In Boutts v. Ellis, 4 D. M. & G. 249, and in Bromley v. Brunton, L. R. 6 Eq. 275, the amount of the cheque was paid, or ought to have been paid (the cheque being presented, and there being assets in the bank to meet it), in the donor's lifetime. In Lawson v. Lawson, 1 P. Wms. 441, the gift of the goldsmith's note was held good, not as a donatio mortis causa, but as an appointment of the money. The decision went on the peculiar form of the instrument, which was to the donor's wife to buy mourning.

Assuming these cases to have been all well decided, none of them warrant the proposition contended for before me. To extend the doctrine to a bank-book would be going very much further. I do not find in the Acts' relating to savings' banks anything to distinguish a savings' bank pass-book from an ordinary banker's pass-book; and were I to decide that the book in this case is a proper subject of a donatio mortis causa, I do not see how I could stop short of holding not only that a bank-book but that any pass-book might be made the subject of such a gift. The book of this savings' bank is rather more unfavorable to the claimant's case than a common bank-book would be; for by the rules printed in it, it appears that payment will be made only to the depositor himself, or on his power of attorney during his life; and after his death smaller sums are payable, as specified by the rules; but if the deposit exceeds £50, it can only be paid on production of probate or letters of administration; the book is required to be produced, and checked with the bank ledger, and the bank is protected against personation if it be lost. But the book does not embody the terms of the contract between the depositor and the bank; the only entries to be found in it are figures or sums of money written in full, in a column for that purpose, 1 Stat. 26 & 27 Vict. c. 87, §§ 6, 41, 52, 53.

to prevent fraud. Consistently with the theory that an actual and not a merely symbolical delivery is required, handing over a written contract must be a delivery of the thing given; and the right to assistance in enforcing the money due on it follows. A contract embodied in a writing is in a sense capable of being given; only one person can have it. But it would be going beyond any case yet decided, to hold that what is merely evidence of, or a voucher for, the debt-of which there may be several-is capable of being thus dealt with.

I am therefore of opinion.

both on the question of fact, and the question of law-that the petitioner has failed to establish the gift.

PENNINGTON v. GITTINGS.

COURT OF APPEALS OF MARYLAND. 1830.

[Reported 2 G. & J. 208.]

BUCHANAN, C. J., delivered the opinion of the court.1

The bill was filed to compel the defendant, the executor of James Gittings, to transfer to the original complainant, Ann Patterson, daughter of the testator, seventy-five shares of stock, of the Commercial and Farmers' Bank of Baltimore; a certificate of which, it alleges, was given and delivered to her by the testator, who, it is stated, indorsed his name on the back of the certificate in her presence, and at the same time informed her that he gave her the stock.

The answer admits the name of the testator, indorsed upon the certificate to be in his handwriting, but denies that he gave or intended to give the certificate of stock to Ann Patterson, as alleged, and puts the complainant on proof of the allegation; and denies also the delivery of the certificate as stated. . . . Under the view, however, that we had taken of the case, it is not necessary to examine whether the allegations in the bill have been sufficiently established or not, by the proof in the cause. For supposing them to be fully proved, it does not appear to us that the object of the bill can be gratified. The alleged gift seems to have been intended as a donatio inter vivos; but whether a donatio inter vivos, or donatio mortis causa, makes no difference. Such a gift cannot be by mere parol. The rule of law in either case is, that a delivery of the thing intended to be given, is essential to the perfection of the gift. This is admitted; indeed it cannot be denied. As to donations inter vivos, it has never been doubted, that delivery of the thing intended to be given is indispensable; and the same principle is now equally well settled in relation to donations mortis causa. The delivery must be according to the manner in which the particular thing is susceptible of being delivered; and that which is not capable of 1 The opinion alone, and part only of that, is given.