No. 2. - Duffield v. Elwes, 1 Bligh N. S. 538–540.

in that book there are reports of very great authority. [*539] The case happens to be reported likewise in another book of no very high character. I mean the second volume of the Equity Cases abridged. It is not so high in character as the first volume of the Equity Cases abridged; but the case as there reported, is reported from a manuscript note, and from a manuscript note which I think is better entitled to credit for this reason; that having called in assistance in this case (which I believe will be the first absolute determination upon the subject, though I think there is a great deal laid down in the cases which ought to lead us to decide what ought to be a good donatio mortis causâ), I have found authority to consider that report to be a very correct report, in the library and in the mind, which are both equally large storehouses of equity learning, I mean the library and mind of Lord REDESDALE. Upon this occasion, he has had the goodness to hunt through all the books he has upon the subject, as well manuscript as printed, and I come to the foundation of my opinion, with all the assistance I can have from that quarter.

According to both the reports, an issue had been directed. If there had been a good delivery, Lord HARDWICKE seems to consider that the interest in the land would have passed: "But in all these cases," he says, "there is a difference, both at law and in equity, between absolute estates in fee or for a term of years, and conditional estates for security of money. In the case of absolute estates, it cannot be admitted that parol proof of the gift of deeds shall convey the land itself. But where a mortgage is made of an estate, that is only considered as a security for the money due, the land is the accident attending upon the other (and principal object), "and when the debt is discharged the interest in [540] the land follows of course." A trust of the land then arises by operation of law: when a deed is given a trust also arises by operation of law. "At law, the interest in the land is thereby defeated, and in equity a trust arises for the benefit of the mortgagor:" and his Lordship said, that "if an obligee delivers up a bond with intent to discharge the debt, the debt will certainly be thereby discharged, and the mortgage with it;" and if the bond is discharged in the present case, it is very difficult to say that the mortgage debt, as debt, will not be discharged also.

In reasoning the case of Ward v. Turner, and pointing out the

Duffield v. Elwes, 1 Bligh N. S. 540, 541.

distinction there is between the delivery of a mere chattel, and the delivery of any thing which forms part of the title, Lord HARDWICKE says this, and I find by a manuscript note in the possession of the noble Lord I have mentioned, that this is exceedingly correct: "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 the 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 the act." (2 Ves. 443.) To be sure, that reasoning is quite idle, unless Lord HARDWICKE meant to say that delivery of the deed, with a receipt upon the back of it, not by force of the delivery of the receipt on the back of it, but by force of the delivery of the deed, would be a good donatio causâ mortis.

The case of Richards v. Syms was argued by Lord MANSFIELD, then Mr. Murray. The case of Ward v. Turner was also argued by Lord MANSFIELD, then Mr. Murray; and he [* 541] appears to have a strong recollection of it, when he got into the Court of King's Bench, where sometimes equity has been rather more misunderstood than it ought to be, which has perhaps led some men belonging to that Court to abuse equity, when they knew nothing about the matter. There is a case in the second volume of Burrows' Reports, Martin v. Mowlin, 2 Burr, 979, -a case of very great importance, a case in which a man devised lands: the will, I think, was not attested by three witnesses, but he described the object of his devise of land. There was enough in his will to show that he meant to pass the personal interest in his property, and it was a question, whether there was a good devise of the mortgage or not. The land itself could not be said to be devised; but the Court of King's Bench held that it was a very good bequest of the personal interest: and Lord MANSFIELD, in summing up all this sort of doctrine, says: "A mortgage is a charge upon the land, and whatever would pass the money will carry the estate in the land along with it to every purpose." (That I admit is equity.) "The estate in the land is the same thing as the money due upon it- it will be liable to debts-it will go to executors it will pass by a will not made and executed with the solemnities required by the Statute of Frauds. The assignment of

the debt or forgiving it will draw the land after it as a consequence: nay, it would do it, though the debt were forgiven only by parol, for the right to the land would follow notwithstanding the Statute of Frauds."

I ought to do it in a spirit of great humility, when I question the doctrine of Lord MANSFIELD. If he meant by that to [* 542] say that such acts done with the money will have the effect in a Court of Equity of enabling you to call for a conveyance of land, I am ready to agree with him; but to say that the land is to be considered as passing under such circumstances, is that to which I cannot agree; but still I maintain that the doctrine from first to last is correct, provided you lay the foundation in the intent of the gift, that the debt is well given or well forgiven; and then, as the result of that interest so given, you say that the party who has the land becomes in equity a trustee for the person entitled to the money and to the personal estate.

Lord HARDWICKE, with respect to the bond (and it is necessary that I should take some notice of this, because there has been a change in the law which that great Judge did not foresee, but which, in later times, and in my own time, has become very familiar in the Courts of Law,) - Lord HARDWICKE States, as one ground of his opinion in the case of the bond, that it is a good gift causâ mortis, because he says he who has got the bond may do what he pleases with it. He certainly disables the person who has not got the bond from bringing an action upon it: for, says Lord HARDWICKE, no man ever heard (and I have seen in the manuscript of the same Lord HARDWICKE, that he said no man ever will hear) that a person shall bring an action upon a bond without the profert of that bond; but we have now got into a practice of sliding from Courts of Equity into Courts of Law, the doctrine respecting lost instruments; and I take the liberty most humbly of saying, that when that doctrine was so transplanted, it was transplanted upon the idea, that the thing might be as well conducted in a Court of Law as in a Court of Equity, a doctrine which cannot [*543] be held by any person who knows what the doctrine of Courts of Equity is as to a lost instrument.

Then, if the delivery of a bond would, as it is admitted, (notwithstanding any change in the doctrine about profert), — if the delivery of a bond would give the debt in that bond, so as to secure to the donee of that bond the debt so given by the delivery of the

No. 2. Duffield v. Elwes, 1 Bligh N. S. 543, 544.

bond, the question is, whether the person having got, by the delivery of that bond, a right to call upon the executor to make his title by suing or giving him authority to sue upon the bond, what are we to do with the other securities if they are not given up? But there is another question to which an answer is to be given: What are we to do with respect to the other securities, if they are delivered? In the one case, the bond and mortgage are delivered; in the other the judgment, which is to be considered on the same ground as a specialty, is delivered, with that, the evidences of the debts are all delivered. The instrument containing the covenant to pay is delivered. They are all delivered in such a way that the donor could never have got the deeds back again. Then the question is, whether, regard being had to what is the nature of a mortgage, contradistinguishing it from an estate in land, those circumstances do not as effectually give the property in the debt as if the debt was secured by a bond only?

The opinion which I have formed is, that this is a good donatio mortis causâ, raising by operation of law a trust; a trust which being raised by operation of law is not within the Statute of Frauds, but a trust which a Court of Equity will execute; and therefore, in my humble judgment, this declaration must be altered by stating that this lady, the daughter, is entitled to the benefit of these securities, and with a * direction to the [* 544] Court of Equity to proceed in the cause, on the ground of the principle to be found in such a declaration to be made by your Lordships, which, with respect to that part of the case, I take the liberty to advise your Lordships to adopt.

Ordered and adjudged by the Lords spiritual and temporal in Parlia ment assembled, that the said decree of the Court of Chancery of the 17th April, 1823, be, and the same is hereby reversed, in so far as it declares, "That the said Court being of opinion that a mortgage security cannot by law be given by way of donatio mortis causâ, the plaintiff, Emily Frances Duffield, is not entitled to the mortgage monies secured by the indentures of the 2nd and 3rd days of November, 1820, and the said bond of the 12th day of July, 1820, and by the said indentures of lease and release and mortgage dated the 11th and 12th days of July, 1820." And it is further ordered, that the said cause be referred back to the Court of Chancery, to proceed therein in such manner as shall be consistent with this judgment.

To a donatio mortis causâ it is essential that the transaction should be in contemplation of death and intended to take effect only after the donor's decease. An instrument purporting to be an absolute and immediate assignment of a bond, which was incomplete and ineffectual as a gift inter vivos, has been held incapable of taking effect as a donatio mortis causâ, because the terms of the instrument contradicted this essential intention; so that although the bond was delivered to the donee with such an instrument indorsed on it, the donee acquired no property in the bond. Edwards v. Jones (1836), 1 My. & Cr. 226. On the other hand, if there is a complete legal transfer of shares so that, in point of form, the transaction would be valid as a gift inter vivos, it is competent to show aliunde the intention to be a donatio mortis causâ; and the donee having recovered and become a lunatic, his committee was held entitled to revoke the gift and to have the donee declared a trus tee and ordered to retransfer the shares. Staniland v. Willott (1850), 3 MacN. & G. 664.

If the donor enjoys the benefit of the property, as by receiving interest, after the transaction relied upon as a gift, it cannot be supported as a donatio mortis causâ, since the subsequent enjoyment of the benefit is inconsistent with the condition that the gift is made in the immedi ate contemplation of death. Gason v. Rich (1887), 19 L. R. Ir. 391.

A donatio mortis causâ may be good although coupled with a trust. Hills v. Hills (1841), 8 M. & W. 401; Bouts v. Ellis (1853), 17 Beav. 121.

The decision in Ward v. Turner was followed by Vice-Chancellor HALL in Moore v. Moore (1874), L. R., 18 Eq. 474, where he held that the delivery of certificates of railway stock could not constitute a good donatio mortis causâ.

In Witt v. Amiss (1861), 1 Best & Sm. 109, 30 L. J. Q. B. 318, it was decided by the Queen's Bench that a policy of life insurance might be the subject of donatio mortis causâ by delivery of the policy and verbal expression of the intention. The effect of the judgment was confirmed by Sir J. ROMILLY, M. R., in Amiss v. Witt (1864), 33 Beav. 619. The cases relating to donatio mortis causâ by means of a cheque require special attention.

By the Bills of Exchange Act, 1882, s. 75, "the duty and authority of a banker to pay a cheque drawn on him by his customer are determined by... (2) Notice of the customer's death." By the common law it would have been more correct to say that the authority is determined by the death; but the bank by acting upon the ostensible authority without notice of the death, are entitled as against the cus

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