reports of the case are compared, it will very plainly appear that the ratio decidendi is that the agreement was one which related to and directly affected the bill, as distinguished from a merely collateral agreement. The decision would have been the same if the canvas had been deposited in the hands of the drawer on the same terms at any time while he was the holder.

In re The European Bank, ex parte The Oriental Bank, L. R. 5 Ch. 358, an equity between the indorser of an overdue bill and a third party was enforced in favor of the latter against the holder, the equity consisting in the circumstance that the money with which the indorser had purchased the bill was the property of the third party.

In Britton v. Fisher, 26 U. C. R. 338, a valid agreement between the payee and the maker, after the maturity of the note, to give time for payment, was held to be an equity attaching to the note, as against a subsequent indorsee.

Strictly speaking, payment or part payment, though sometimes called such, can hardly be said to be an equity attaching to a note, it is rather matter of discharge; but it is clear that agreements or dealings may occur in relation to it after it has been put in circulation, wholly independent of the original consideration, which may limit its negotiable quality after its maturity; re Overend, Gurney & Co., L. R. 6. Eq. 344; Graves v. Key, 3 B. & Ad. 319; Cook v. Lister, 13 CAB. N. S.

The Canadian Bank of Commerce v. Ross, 22 C. P. 491, referred to in the judgment below, does not, as we think, govern this case, or, when properly considered, decide anything contrary to the views above expressed. There, the defendant, the maker of the note, did not deny his liability to pay it to some one, but attempted to set up a collateral agreement, to which he was no party, between the payee and the indorsee, under which he contended that the former, in privity with whom he was not defending, was entitled to a return of the note. This was held to be a mere collateral agreement, not affecting the note, or the title of the plaintiffs to sue thereon and to give the defendant a complete discharge.

In our case, the agreement was one which directly concerned, and was made in relation to the note. Credit having been given by the defendants on the faith of it while Axford was the holder, it appears to us that his title to dispose of it after its maturity became subject to their right to have the amount of such credit applied in reduction of it, in accordance with the agreement, and that this right is an equity which attaches to it in the plaintiff's hands.

The appeal must, therefore, be allowed as to the $100 in question, and the judgment reduced by that amount.

The appellants having partly succeeded and partly failed, there will be no costs of the appeal or of the motion in the Court below.

TRAVIS V. TRAVIS.

Donatio mortis causá-Gift inter vivos-Delivery.

A verbal gift of personal chattels does not confer any property on the donee, if there be no actual delivery to him: Therefore where the mother of the defendant, while on her death-bed, gave to another son, J., the key of a drawer, containing a mortgage in her favor executed by the defendant, directing J. to give the instrument to the defendant in the event of her not again seeing him, and the defendant was subsequently summoned by telegraph to see his mother, and he thereupon again visited her, when she told him that his mortgage was in the drawer and that when he went home he should take it with him; but he did not on this occasion take possession of or see it. After the mother's death (intestate) J., as directed by her, handed the mortgage to the defendant.

Held, [affirming the judgment of BoYD, C., 8 O. R. 516] that there had not been such a complete delivery of the security as to constitute a gift inter vivos or a donatio mortis causa, and therefore that the money due on the mortgage formed part of the personal assets of the deceased. Watson v. Bradshaw, 6 A. R. 656, observed upon.

THIS was an appeal by the defendant from the judgment of Boyd, C., as reported, 8 O. R. 516, where and in the present judgments the facts are fully stated and the points relied on sufficiently appear.

The appeal came on to be heard on the 22nd October, 1885.*

McClive, for the appellant.

Muir, for the respondent.

January 12, 1886. HAGARTY, C. J. O.-The property in dispute in this appeal is claimed by the appellant as having been the subject of a valid gift inter vivos, and also as a valid donatio mortis causâ.

The cases are very numerous on this branch of the law, and it must be said that they are certainly not uniformly consistent.

The "donatio mortis causá" is fully defined in Williams's Exors, ed., 1879, p. 776, et seq. It must be in view of death. It must be conditioned to take effect only on the death of the donor of the subject by his existing disorder, and there

* Present.-HAGARTY, C.J.O., Burton, Patterson, and OSLER, JJ.A..

must be a delivery of the donation. It is ambulatory, incomplete, and revocable during the testator's life, and in this differs from a gift inter vivos. Ib., 787.

See on this 1 Wh. & Tudor, 1013, notes to Ward v. Turner.

A gift inter vivos is complete if made by deed, or if made by parol it is accepted by the donee.

If this be viewed as a donation mortis causâ, I think the learned Chancellor was clearly right in holding that it could not be supported. The deceased's first delivery to the brother John was, as was held, conditional on her not seeing the intended donee again. She did see him again, and that was an end to that part of the case.

When she afterwards told the defendant, pointing to the drawer, "Your mortgage is there, when you go home you can take it with you." He replied, "All right," and John was not then present, and he had the key. But he did not touch or take it when he left after her death, and his brother John gave it to him before the present plaintiff had obtained administration.

I think, on the authorities, this cannot be upheld on the principles governing donations mortis causd. I refer to such cases as Richards v. Delbridge, L. R. 18 Eq. 11, before Jessel, M. R.; Moore v. Moore, ib., 474; Breton v. Woolven, 17 Ch. Div. 416; Heartley v. Nicholson, L. R 19 Eq. 233; Young v. Derenzy, 26 Gr. 509. The subject is largely discussed in the notes to the leading case of Turner v. Ward, 1 Wh. & Tud. 1006, ed. 1877, and by Lord Eldon in Duffield v. Elwes, 1 Bligh. H. L. 536. In 1 White & Tudor, at page 1006, the law is discussed as to giving the chattel to any other person than the donee; it may be given to another for the donee, but not to another in the character of agent of the donor, and the donor must part with the actual dominion over the thing given.

The delivery of a specialty security for a debt is a good donation mortis causâ of the debt itself (p. 1008), so also as to a mortgage deed. Again, in the notes to Ellison v. Ellison, 1 Wh. & Tud. 290, et seq., the subject is largely discussed as to gifts inter vivos.

I do not think that on the facts in evidence it could be held that the deceased became a trustee for the defendant as donee.

In Richards v. Delbridge, L. R. 18 Eq. p. 15, Sir George Jessel says: "It is clear and beyond dispute that for a man to make himself a trustee there must be an expression of intention to become a trustee, whereas words of present gift shew an intention to give over property to another and not retain it in the donor's own hands for any purpose fiduciary or otherwise."

He quotes Lord Justice Turner's words in Milroy v. Lord, 4 DeG. F. & J., 264-274: "If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument could be made effectual by being converted into a perfect trust."

He also quotes the emphatic language of Bacon, V.C., in Warriner v. Rogers, L. R., 16 Eq., 348, to the same effect. See also notes to Ellison v. Ellison, 1 Wh. & Tud. p. 297; also p. 298, commenting on Richards v. Delbridge.

It remains to be considered whether it can be supported as a gift inter vivos.

Two objections are urged: 1st, that it was an incomplete gift; 2nd, that the defendant's evidence on this is not sufficiently corroborated.

This branch of the case is not much discussed by the learned Chancellor.

Apart from the corroborative objections, it seems to me that to support this as a valid gift, we must go a step further than any case I have yet seen.

We must treat it as wholly apart from the consideration of approaching death, or as done in contemplation of death. Was it a transaction which would be valid and binding between two ordinary persons? As is said in 2 Kent's Com. 445, ed. 1873: "The final and correct opinion was established that a gift inter vivos was irrevocable."

There was no manual delivery of the mortgage. It was pointed at by the donor as being in a drawer in her room,