cess, in case no settlement had been made, such as choses in action, money in the funds, &c.; and therefore that a voluntary settlement of that species of property must be good against creditors, even if made by an insolvent debtor. The difficulty of reaching that species of personal property was discussed and considered in the case of Bayard v. Hoffman. The cases were found to be contradictory, and the question unsettled; but there appeared to be much good authority, and much strong reason for the opinion, that personal property not tangible by execution at law, could be reached by the assistance of a Court of Equity. Without such assistance, there would be great temptations to fraudulent alienations; and a debtor, under the shelter of it, might convert all his property into stock, and settle it upon his family, in defiance of his creditors, and to the utter subversion of justice. In Spader v. Davis, the Court of Chancery assisted a creditor at law to reach personal property which the debtor had previously conveyed away in trust. That case was affirmed upon appeal; and the language of the Court of Errors was, that a court of Equity would assist a judgment creditor at law in discovering and reaching personal property which had been placed in other hands, and that it made no difference whether that property consisted of choses in action, or money, or stock. This disposition of the Courts of Equity to lend assistance in such cases, was afterwards checked by the argument and opinion in Donovan v. Finn,d where the Chancellor held, that the doctrine of equitable assistance to a judgment creditor at law, to enable him to reach choses in action of his debtor, was to be restricted to special cases of fraud or trust; and that without some such specific ingredient, the case was not of equitable jurisdiction.

2. Gifts causa mortis have been a subject of very frequent and extensive discussion in the English courts of

a 4 Johns. Ch. Rep. 450. 5 Johns. Ch. Rep. 280.

c 20 Johns. Rep. 554.

d 1 Hopkins, 59.

equity. Such gifts are conditional like legacies, and it is essential to them that the donor make them in his last ill ness, and in contemplation and expectation of death, and with reference to their effect after his death, and if he recovers the gift becomes void. The apprehension of death may arise from infirmity, or old age, or from external and anticipated danger.

The English law on the subject of this species of gift, is derived wholly from the civil law. Justinian was justly apprehensive of fraud in these gifts, and jealous of the abuse of them, and he required them to be executed in the presence of five witnesses. We have not adopted such precautions, though it has been truly declared, that such donations amount to a revocation pro tanto of written wills, and not being subject to the forms prescribed for nuncupative wills, they were of a dangerous nature. By the civil law they were reduced to the similitude of legacies, and made liable to debts, and to pass for nothing, and to be returned, if the donor recovered, or revoked the gift, or if the donee died first. It was a disputed point with the Roman civilians, whether donations causa mortis, resembled a proper gift, or a legacy. The final and correct opinion was established, that a gift inter vivos was irrevocable, but that a gift causa mortis was conditional, and revocable, and of a testamentary character, and made in apprehension of death. The first case in the English law on the subject of gifts causa mortis, was that of Jones v. Selbye in 1710, in which the Lord Chancellor ruled,that a donatio causa mortis

a Swinb. 18. Drury v. Smith, 1 P. Wms. 404. Blount v. Burrow, 1 Vesey, jun. 546.

b Dig. 39. 6. s 3, 4, 5, 6.

c Inst. 2. 7. 1. Code, 8.58. 4.

d Dig. 39. 6. 2. and 27. Inst. 2. 1. 1. Vide Dig. lib. 39. tit. 5. De Donationibus, and tit. 6. De mortis causa Donationibus, for the Roman law at large on the subject.

e Prec. in Ch. 300.

a

was substantially a will, with a like revocable character during the life of the donor. Afterwards, in Drury v. Smith, a person, in his last sickness, gave a 100 pound bill to a third person to be delivered to the donee, if he died, and this was held to be a good gift, and Lord Hardwicke subsequently approved of that decision. In Lawson v. Lawson, and in Miller v. Miller,d a delivery to the wife as donee was held good; but in the last case it was held, that a note of hand not payable to bearer, and being a mere chose in action, to be sued in the name of the executor, did not pass by delivery, or take effect as a gift causa mortis. The delivery of bank notes which circulated as cash, was held at the same time to be a valid donation, and the same point has been since established.e

But the case of Ward v. Turner,f was that in which the whole doctrine was, for the first time, fully and profoundly examined in the English Court of Chancery; and Lord Hardwicke gave to the subject one of his most elaborate and learned investigations. He held, that actual delivery was indispensable to the validity of a gift causa mortis, and that a delivery to the donee of receipts for south sea annuities, was not sufficient to pass the property, though it was strong evidence of the intent. The delivery of the receipt was not the delivery of the thing. He examined very accurately the leading texts of the civil law, and the commentators on the point, and concluded, that though the civil law did not require absolute delivery of possession in every kind of donation causa mortis, that law had not been received and adopted in England in respect to those donations, only so far as the donations were accompanied with actual delivery. The English law required delivery throughout, and in every In all the chancery cases, delivery of the thing was

case.

a 1 P. Wms. 404.

b 3 Atk. 214.

c 1 P. Wms. 440.

d 3 P. Wms. 356.

e Hill v. Chapman, 2 Bro. 612.

f 2 Vesey, 431.

required, and not a delivery in the name of the thing. In Jones v. Shelby, a symbol was held good, but that was in substance the same as delivery of the article, and it was the only case in which such a symbol had been admitted. Delivery of a symbol in the name of the article was not sufficient. The delivery of the receipts was merely legatory, and amounted to a nuncupative will, and was a breach of the statute of frauds.

Symbolical delivery is very much disclaimed by Lord Hardwicke in this case, and yet he admits it to he good when it is tantamount to actual delivery; and in Smith v. Smith, it was ruled, that the delivery of the key of a room, containing furniture, was such a delivery of possession of the furniture, as to render the gift causa mortis valid. Ch. J. Gibbs said, that was a confused case; but the efficacy of delivery, by means of the key, was not a questionable fact.

The doctrine of this species of gift, was afterwards discussed with ability and learning, in Tate v. Hilbert.b Lord Loughborough pressed the necessity of actual delivery to the efficacy of such a gift, except in the case of a transfer by deed or writing. He held, that where a person in his last sickness, gave the donee his check on his banker, for a sum of money, payable to bearer, and he died before it was realized, it was not good as a donatio causa mortis, for it was to take effect presently, and the authority was revoked by his death. He likewise held, that where the same person, at the same time, gave to another donee his promissory note for a sum of money, that was not good as such a gift, for it was no transfer of property. So, where a person, supposing himself in his last sickness, caused India bonds, bank notes, and gui→ nras, to be sealed up and marked with the name of the donee, with directions to have them delivered after his death, and still retained possession of them, it was held,c

that there was no delivery, and the act was void as a gift causa mortis, for there must be a continuing possession in the donee until the death of the donor, and he may revoke the donation any time before his death.

The cases do not seem to be entirely reconcilable on the subject of donations of choses in action. A delivery of a note, as we have seen, was not good, because it was a mere chose in action; and yet in Snellgrove v. Baily,a the gift of a bond causa mortis, was held good, and passed the equitable interest; and Lord Hardwicke afterwards, in the great case of Ward v. Turner, said he adhered to that decision; and the same kind of gift has been held in this country to be valid.b

By the admirable equity of the civil law, donations causa mortis were not allowed to defeat the just claims of credi tors, and they were void as against them, even without a fraudulent intent. It is equally the language of the modern civilians, that donations cannot be sustained to the prejudice of existing creditors.d

a 3 Atk. 214.

b Wells v. Tucker, 3 Binney, 366.

e Dig. 39. 6. 17.

d Voet. Com. ad Pand. 39. 5. sect. 20. Pothier, Traité des donat entre vifs, sect. 3. art. 1. sect. 2. Toullier's Droit Civil Francais, tom. 5. p. 733.