No. 1.-Ward v. Turner, 2 Ves. Sen. 439, 440.

one in no present danger, but in consideration of mortality, if he died; and this is strictly compared to a legacy; for the property was to pass at the death, not at the time. The second kind is, where the property passed at the time defeasible in case of an escape from that danger in view or of recovery from that illness. The third was, where, though he was moved with the danger, yet not thinking it so immediate as to vest the property immediately in the person, but put it in possession of the person as an inchoate gift to take effect, in case he should die. Vinius's Comment on this place of Justinian is more particular: puts the remedy by action, donor might have, in case he repented or revoked. That is on the last kind of donation mortis causâ; where he did not part with the property immediately, he should have a real action: but where he actually parted with the property, but the gift was to be defeated by his revocation, or recovery, or escape from that danger he was in, conditionem habeat (which is a personal action), to make the irritancy, or to recover damages for the thing: so that it differed not but in the nature of the action. And in Calvin's Lexicon, &c., that is the distinction. Swinb., on the text I have quoted, [440] implies there should be a delivery; saying, that legacies differ from such donations; for that legacies are not delivered by the testator; but to be paid or delivered by the administrator; putting the distinction upon the one being delivered in life, the other after death. But notwithstanding this, several books in the civil law import the contrary; particularly Vinius in his Comment. Lib. 2, Tit. 7, Sec. 1, Numero 2; Cobaruvius, 1 Vol. Rub. 3, and Voet on the Pandect, same Chapter, Num. 3, and Num. 6, which passages show the different expression and opinions, some importing a delivery, others not. I have mentioned them to come at that which seems the distinction reconciling them all, according to what is laid down by Voet, Numb. 6, that they did not require an absolute delivery of possession to the first or third kind of gift I have mentioned: but in the other case, where the property was to pass immediately, it was required: which is the meaning of the expression in Voet, in mortis causâ donatione Dominium non transit sine traditione, and of that other expression in Voet. With this distinction these passages in the civil law are properly reconciled. Though I know these donations mortis causâ, could never come directly in question in the ecclesiastical Court, they might collaterally; and on these two heads I inquired whether there have been any cases there upon

this viz. in suits against an administrator on account of assets by the next of kin, where the administrator had insisted he could not administer such a part, because it was given mortis causâ: or if there is a will, in which there are specific legacies, and one of those legacies he had given in his life by way of donation mortis causâ, there it might come in question in the ecclesiastical Court: but I cannot find it has. The nearest case to it is Ousley v. Carrol, June, 1722, in the Prerogative Court before Dr. Bettesworth. There was left a writing in presence of three witnesses, not in the form of a will, but a deed; viz. "I have given and granted, and give and grant, to my five sisters and children of the sixth, their heirs, executors, and administrators, in case they survive me, all my goods and chattels, and real and personal estate, and all which I may claim in right of my own, whether alive or dead." The dispute was by a person claiming as his wife, and who had been so, but divorced; who insisted, this was no will, but deed of gift mortis causâ (and a gift mortis causâ may be made in writing as well as otherwise, and so it might by the Roman and civil law) but the ecclesiastical Judge was of an opinion this was testamentary; proved it as such as a testamentary act, and probate was granted: from which there was no appeal; but a case was there cited of Shargold v. Shargold, upon deed of gift by Dr. Pope not to take place until his death, and sixpence delivered by way of symbol to

put grantee in possession; that was pronounced for as a will, [441] not as a donation mortis causa; which I mention to show how far the ecclesiastical Court has considered these things as testamentary. Having considered these donations, the different species, and how far delivery is necessary by the Roman and civil law, I will consider it according to the law of England. They are undoubtedly taken from the civil law; but not to be allowed of here farther than the civil law on that head has been received and allowed. Taking the law of England to consist (as Hob. says) of rules of law and equity, it might have come in question in cases of action of Trover and Detinue: but I have never found any action on that head. Consider it therefore as in this Court; the civil law not binding here but as far as received and allowed; which must be from adjudged cases and authorities, proving that the civil law has been received in England in respect of such donations only so far as attended with delivery, or what the civil law calls traditio; for which Swinb. who being an English writer on the civil law, what

he lays down is some evidence of what has been received here, Part 1, Sect. 7, but in other places, Sec. 6, in Tit. Definition of Legacy, he is still more express. In both places, in one directly, in the other collaterally, he lays down, that delivery is necessary. Next consider it on the resolutions of this Court: the same thing results from them. There are not many cases on this head; and they are somewhat loose. The first is Drury v. Smith, 1 Will. 404, where Lord CowPER founded himself on this and the possession transmitted and changed: next Lawson v. Lawson, 1 Will. 441. All that I can collect from thence is, that the purse was held good, because delivered to the wife herself. As to the other legacy of £100 bill, I cannot say on what it depended. It is a kind of compound gift; so many collateral circumstances are taken into it, that nothing can be inferred from it: but, being a draft on his goldsmith, that draft was delivered so that it does not contradict what I lay down; and there was delivery, so far as it was capable. In Jones v. Selby, Chan. Pre. 300, the result is, that the opinion of the MASTER OF THE ROLLS was founded plainly on this of the delivery of possession; holding that the gift of the tally, as contained in the hair-trunk, was a good donation mortis causâ; and that Lord CowPER avoided determining that on the foundation of the subsequent point of a satisfaction or ademption, on which he grounded his determination. In all the instances it is absolutely necessary to be the person's after the party's death: though in some cases it vests the property, in others not. But to explain more fully Lord CowPER'S opinion there, I will refer you back to Drury v. Smith, and to Hedges v. Hedges, Chan. Pre. 269, which turned on another point; but there Lord CoWPER laid down a necessity of delivery very strongly, where he says, testator gives with his own hands. In the case of Snelgrove v. Baily, 3 Atk. 214, determined by me 11 March, 1744; where a bond was given in prospect [442] of death the manner of gift was admitted; the bond was delivered; and I held it a good donation mortis causâ. It was argued, that there was no want of actual delivery there or possession, the bond being but a chose in action, and therefore there was no delivery but of the paper. If I went too far in that case, it is not a reason I should go farther and I choose to stop there. But I am of opinion that decree was right, and differs from this case; for though it is true, that a bond, which is specialty, is a chose in action, and its principal value consists in the thing in action, yet

No. 1. - Ward v. Turner, 2 Ves. Sen. 442, 443.

some property is conveyed by the delivery; for the property is vested; and to this degree that the law-books say, the person to whom this specialty is given, may cancel, burn, and destroy it; the consequence of which is, that it puts it in his power to destroy the obligee's power of bringing an action, (3 Atk. 214) because no one can bring an action on a bond without a profert in Cur. Another thing made it amount to a delivery, that the law allows it a locality; and therefore a bond is bona notabilia so as to require a prerogative administration, where a bond is in one diocese, and goods in another. Not that this is conclusive: this reasoning I have gone upon is agreeable to Jenk. Cent. 109, case 9, relating to delivery to effectuate gifts. How Jenkins applied that rule of law he mentions there, I know not: but rather apprehend he applied it to a donation mortis causa: for if to a donation inter vivos, I doubt he went too far. Another case is Miller v. Miller, 3 Will. 356; which is a very strong case, so far as that opinion goes, to require delivery; which case, I believe, was hinted at as inconsistent with my decree: but there is a great difference between delivery of a bond (which is a specialty, is itself the foundation of the action, and destruction of which destroys the demand) and the delivery of a note payable to bearer, which is only evidence of the contract. Therefore from the authority of Swinb. and all these cases the consequence is, that by the civil law, as received and allowed in England, and consequently by the law of England, tradition or delivery is necessary to make a good donation mortis causa: which brings it to the question, whether delivery of the three receipts was a sufficent delivery of the thing given to effectuate the gift. I am of opinion it was not. It is argued, that though some delivery is necessary, yet delivery of the thing is not necessary, but delivery of any thing by way of symbol is sufficient: but I cannot agree to that; nor do I find any authority for that in the civil law, which required delivery to some gifts, or in the law of England, which required delivery throughout. Where the civil law requires it, they require actual tradition, delivery over of the thing. So in all the cases in this Court delivery of the thing given is relied on, and not in name of the thing; as in the delivery of sixpence in Shargold v. Shargold: if it was allowed any effect, that would have been a gift mortis causâ, not as a will, but that was allowed as [443] testamentary, proved as a will, and stood The only case

wherein such a symbol seems to be held good is Jones v.

No. 1. Ward v. Turner, 2 Ves. Sen. 443.

Selby, but I am of opinion that amounted to the same thing as delivery of possession of the tally, provided it was in the trunk at the time. Therefore it was rightly compared to the cases upon 21 J. I. Ryal v. Rowles and others. It never was imagined on that statute, that delivery of a mere symbol in name of the thing would be sufficient to take it out of that statute: yet notwithstanding, delivery of the key of bulky goods, where wines, &c., are, has been allowed as delivery of the possession, because it is the way of coming at the possession, or to make use of the thing: and therefore the key is not a symbol, which would not do. If so, then delivery of these receipts amounts to so much waste paper; for if one purchases stock or annuities, what avail are they after acceptance of the stock? It is true, they are of some avail as to the identity of the person coming to receive: but after that is over, they are nothing but waste paper, and are seldom taken care of afterwards. Suppose Fly, instead of delivering over these receipts to Mosely, had delivered over the broker's note, whom he had employed, that had not been a good delivery of the possession. There is no colour for it; it is no evidence of the thing, or part of the title to it; for suppose it had been a mortgage in question, and a separate receipt had been taken for the mortgage-money, not on the back of the deed (which was a very common way formerly, and is frequently seen in the evidence of ancient titles), and mortgagee had delivered over this separate receipt for the consideration-money, that would not have been a good delivery of the possession, nor given the mortgage mortis causâ by force of that act. Nor does it appear to me by proof, that possession of these three receipts continued with Mosely from the time they were given, in Feb. to the time of Fly's death; for there is a witness who speaks, that in some short time before his death Fly showed him these receipts, and said, he intended them for his uncle Mosely. Therefore I am of opinion it would be most dangerous to allow this donation mortis causâ from parol proof of delivery of such receipts, which are not regarded or taken care of after acceptance; and if these annuities are called choses in action, there is less reason to allow of it in this case than in any other chose in action; because stocks and annuities are capable of a transfer of the legal property by Act of Parliament, which might be done easily; and if the intestate had such an aversion to make a will as supposed, he might have transferred to Mosely: consequently this is merely legatory, and amounts to a nuncupative will, and contrary