reach personal property which the debtor had previously conveyed away in trust. That case was affirmed upon appeal; (c) and the language of the Court of Errors was, that the 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. (e)

(c) 20 Johns. 554.

(d) 1 Hopk. 59.

(e) The English equity jurisdiction would seem not to be carried beyond the doctrine in the case of Donovan v. Finn; (Otley v. Lines, 7 Price Exch. 274;) but the N. Y. Revised Statutes, vol. ii. p. 173, sec. 38, have fortunately carried to the full extent the principle declared in Spader v. Davis, and given jurisdiction to the Court of Chancery to satisfy debts at law out of debts due to the defendant, or things in action, or property held in trust for him, after a fieri facias at law has been returned nulla bona, and the remedy at law bonâ fide exhausted. In Tappan v. Evans, 11 N. Hamp. 311, the power of the Court of Chancery to reach choses in action, in aid and satisfaction of a judgment at law after the remedy at law has been exhausted, is discussed and established in the clearest manner; and the assistant vice-chancellor, in Storm v. Waddell, 2 Sandf. Ch. 494, showed also, very satisfactorily, that long before the case of Spader v. Davis, it was settled law that an unsatisfied execution creditor had a right to resort to chancery, to compel payment of his judgment debt out of equitable interests and things in action of the judgment debtor. A creditor's bill will lie in chancery to collect a public tax assessed out of the equitable interests and choses in action of a defendant, on the collector's return of no visible property on which to levy. Supervisors of Albany Co. v. Durant, 9 Paige, 182. So, in Ohio, Kentucky, Michigan, Georgia, Pennsylvania, Tennessee, Mississippi, and probably in other states, a judgment creditor is authorized by statute to seize and sell on execution, or apply for the aid of chancery powers, to reach choses in action, stock, property, or money in the hands of third persons, or voluntary assignees, when the debtor has not property sufficient to satisfy the judgment, which can be reached by execution, and the remedy at law has been exhausted. Under that assistance, equitable interests and choses in action, and interest in joint-stock companies, may be made subject to the payment of judgments at law. Statutes of Ohio, 1831. Act of Tennessee, 1833. Act of Kentucky, February, 1828. Act of Georgia, 1822. Purdon's Dig. 368, 371, 372. Statutes of Connecticut, 1838, p. 65. Hubbard, Ibid. 28. Wright v. Petrie, 1 Smedes & M. Ch. (Miss.) 282, 295. C. C. U. S. for Michigan, October, 1841, where the court sustained on demurrer a creditor's bill in chancery against choses in action, &c. Freeman v. Michigan State Bank, Walker Ch. (Mich.) 62. In New Hampshire bank-notes may be attached on mesne process, and sold on execu

* II. Gifts, causâ mortis, have been a subject of very fre- 444 quent and extensive discussion in the English courts of equity. Such gifts are conditional, like legacies; and it is essential to them that the donor make them in his last illness, or in contemplation and expectation of death; and with reference to their effect after his death, they are good, notwithstanding a previous will; and if he recovers, the gift becomes void. (a) The

1

tion. Spencer v. Blaisdell, 1 N. Hamp. 198. Money may be levied on fieri facias. 1 Bailey, S. C. 39. 12 Johns. 220. So, in New York, bank bills and other evidences of debt, issued by any moneyed corporation, or by the government of the United States, and circulated as money; and in Connecticut all corporate stock may be levied upon and sold under execution at law without recourse to chancery. N. Y. Revised Statutes, vol. ii. p. 366. Revised Statutes of Connecticut, 1821. The New York provision in chancery extends to property and things in action held in trust for the debtor, with the exception of such trusts as have been created by, and of funds so held in trust proceeding from some other person than the defendant himself. Ibid. p. 174, secs. 38, 39. Vide infra, vol. iv. p. 430. In Kentucky, by statutes of 1821 and 1828, equities of redemption were made subject to sale on execution. In Maryland, equitable estates are liable to sale under a fi. fa. in the same manner that legal estates are. McMechen v. Marman, 8 Gill & Johns. 58. But in North Carolina choses in action cannot be reached by a fi. fa. at law, nor by a court of equity. Pool v. Glover, 2 Ired. 129. Doak v. Band of the State, 6 Idem, 337. Nor in New Jersey can trust estates be sold on execution. The statute of 29 Charles II. ch. 3, on that point, has not been adopted in New Jersey. No equitable interest can be levied on and sold on execution at law. Disborough v. Outcalt, Saxton Ch. (N. J.) 298. In England an equitable interest is not salable under a fi. fa. Scott v. Scholey, 8 East, 467; nor does a court of equity consider a judgment or execution at law as binding a mere equitable interest. See Bogart v. Perry, 1 Johns. Ch. 56. Hendricks v. Robinson, 2 Ibid. 312. Disborough v. Outcalt, ub. sup. Mercer v. Beale, 4 Leigh, 207. President Tucker was inclined to the doctrine, in Bayard v. Hoffman, 4 Johns. Ch. 450, that where a creditor was in pursuit of his demand, and the debtor transfers his choses in action, stocks, &c., to trustees for his benefit, the creditor would be entitled to be assisted in equity. In Georgia, an equitable interest or a distributive share is not subject to a sale on execution. Colvard v. Coxe, Dudley, 99.

(a) Swinb. 18. Drury v. Smith, 1 P. Wms. 404. Blount v. Burrow, 1 Vesey Jr., 546. Sir L. Shadwell, in Edwards v. Jones, 7 Sim. 325. S. C. 1 Myl. & Cr. 226. Wells v. Tucker, 3 Binney, 366. In Nicholas v. Adams, 2 Wharton, 17, it was held not to be indispensable to a valid donatio mortis causâ, that it should be made in extremis, like a nuncupative will. The chief justice defined it to be a conditional gift, depending on the contingency of expected death, and that it was defeasible by revocation, or deliverance from the peril. To constitute a donatio mortis causâ the circumstances must be such as to show that the donor intended the gift to take effect if he should die shortly afterwards, but that if he should recover, the thing should be restored to him.2

1 Barker v. Barker, 2 Gratt. 344. Grattan v. Appleton, 3 Story C. C. 755. Merchant v. Merchant, 2 Bradf. (N. Y.) 432.

2 Staniland v. Willott, 12 E. L. & Eq. 42 Hebb v. Hebb, 5 Gill, 507. Chevallier v. Wilson, 1 Texas, 161.

apprehension of death may arise from infirmity or old age, or from external and anticipated danger. (b)

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. (c) It was a disputed point with the Roman civilians, whether donations causâ 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 causâ mortis was conditional *445 and revocable,3 and of a* testamentary character, and made

in apprehension of death. (a) The first case in the English law, on the subject of gifts causâ mortis, was that of Jones v. Selby, in 1710, (b) in which the lord chancellor ruled, that a donatio causâ mortis was substantially a will, with a like revocable character during the life of the donor. Afterwards, in Drury v. Smith, (c) a person, in his last sickness, gave a one hundred 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 (d) approved of that decision.1 In Law

(b) Dig. 39, 6, secs. 3, 4, 5, 6.

(c) Inst. 2, 7, 1. Code, 8, 57, 4.

(a) Dig. 39, 6, 2, and 27. Inst. 2, 7, i. Vide Dig. lib. 39, tit. 5, De Donationibus, and tit. 6, De mortis causâ Donationibus, for the Roman law at large on the subject. By the Lex Cincia, A. U. C. 550, a donation above 200 solidi was not valid, unless accompanied with delivery.

(b) Prec. in Ch. 300. In Hambrooke v. Simmons, 4 Russell, 25, it was left as a doubtful point whether a donatio mortis causâ be avoided by the making of a subsequent will.

(c) 1 P. Wms. 404.

(d) 3 Atk. 214.

3 Parker v. Marston, 27 Maine, 196. Lee v. Luther, 3 W. & M. 519. Jones v. Brown, 34 N. Hamp. 439. Bloomer v. Bloomer, 2 Bradf. (N. Y.) 339.

1 Moore v. Darton, 7 E. L. & Eq. 134. Michener v. Dale, 23 Penn. 59. Dole v. Lincoln,

son v. Lawson, (e) and in Miller v. Miller, (ƒ) 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 causâ mortis. (g) 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. (h)

* 446

But the case of Ward v. Turner (i) 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 causâ 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 causâ mortis, that law had 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 case. In all the chancery cases, delivery of the thing was required, and not a

(e) 1 P. Wms. 440.

(f) 3 Idem, 356.

(g) The same point as that in Miller v. Miller was decided the same way, in Bradley v. Hunt, 5 Gill & Johns. 54, in the case of a promissory note payable to the husband's order. It would have been otherwise if the note had been payable to the bearer.2

(h) Hill v. Chapman, 2 Bro. C. C. 612.

(i) 2 Vesey, 431.

31 Maine, 422. The question has lately arisen whether there is any limit to the amount of property which may be conveyed by a donatio causâ mortis. In the case of Headley v. Kirby, 18 Penn. 326, it was held, that a gift, in prospect of death, of all the donor's property, was not valid. More lately, however, in Meach v. Meach, 24 Vermont, 591, where the donor, on his death-bed, executed a deed of all his personal property to his wife, it was upheld, as a donatio causâ mortis; and Mr. C. J. Redfield, in a learned note to the decision, says, that he is unable to find any principle of limitation to the extent of this class of gifts. 2 The English rule is now settled to be, that there may be a valid gift causâ mortis, of a note or bill of exchange payable to the order of the donor and unindorsed by him. Veal v. Veal, 27 Beavan, 303. Rankin v. Weguelin, Ibid. 309.

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 be good when it is tantamount to actual delivery; and in Smith v. Smith (a) 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 causâ mortis valid. C. 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 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, *447 and he died before it was realized, it was not good as a donatio causâ 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 to be in his last sickness, caused India bonds, bank notes, and guineas, 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, (a) that there was no delivery; and the act was void as a gift causâ mortis; for there must be a continuing right of possession in the donee until the death of the donor, and he may revoke the donation at any time before his death. (b) 1

(a) Str. 955.

(b) 2 Vesey Jr., 111. 4 Bro. C. C. 286.

(a) Bunn v. Markham, 7 Taunt. 224. (b) Hawkins v. Blewitt, 2 Esp. N. P. 663, S. P. In the case of the Roman Catholic

It is said, in Miller v. Jeffress, 4 Gratt. 472, that delivery is indispensable — delivery of