Page images
PDF
EPUB
[ocr errors]

1816.

BUNN

[ocr errors]

mained in Sir Jervoise's general custody, because he had other property in the iron chest ; but the direction on the papers, and the setting of them and Another apart, coupled with the other circumstances of the case, were equivalent to an executed transfer. He relied on Smith v. Smith, 2 Strange 955, in which a mixed possession was deemed sufficient.

[ocr errors]

GIBBS, C. J. Few cases have occurred upon this subject in courts of common law. When they present themselves, we must canvass them upon those principles which obtain respecting them in the courts of equity, where they have often been discussed. Whatever might be the intention of Sir Jervoise Clifton, I cannot think that he has given the plaintiffs a legal title to this property. Can we call this a donatio causá mortis ? To constitute a title of this kind, which this is, or nothing, the donor must not only give, but deliver; and that delivery must be actual, where the subject matter of the gift, as in the present case, is capable of actual transfer. A symbolical delivery will not do. This was so determined by Lord Hardwicke in Shargold v. Shargold, 2 Vesey 431. A delivery of receipts for South Sea Annuities, in the donor's last illness, and expressly in contemplation of death, was held by that learned Judge, and higher authority cannot be cited, not to be a good donatio mortis causá. But even the symbol of possession does not, in this case, pass to the donees, or to any one in trust for them. The keys of the iron chest, and the property therein deposited, remain with the testator up to the time of his death. He had frequent opportunities after the time of the

MARKHAM and Wife.

1816.

BUNN

alleged donation, to perfect the gift to the plaintiffs. He does not. He dies, with the property, and the and Another symbol of the property, both in his possession. I cannot, upon legal principles, call this a good donatio causa mortis. But it is fit that my opinion should be reviewed.

v.

MARKHAM

and Wife.

The Jury found a verdict for the plaintiffs, subject to the question of law, whether it was a good donatio causâ mortis.

Best, Vaughan, and Blossett, serjeants, and Richardson, for the plaintiffs.

Shepherd, S. G. Lens, serjeant, Harrison, and Copley, serjeant, for the defendants.

In the next term this case was fully discussed, upon a rule to shew cause why a nonsuit should not be entered. The Court of Common Pleas unanimously approved of the opinion of the Lord Chief Justice, as expressed at the trial; 4 and directed a nonsuit to be entered.

Questions upon a donatio mortis causú have seldom arisen in the trial of an action at common law. It is thought proper, however, to make some additional observations to the note upon the case of Spratley

v. Wilson, supra, p. 10, in which some points of this branch of law were canvassed; and more particularly with a view to define the jurisdiction under which our courts may be considered as having power to take cognizance of this question.

Before we enter upon the question of jurisdiction, it may be proper to add a word or two upon the nature of the donatio mortis causâ, the principles of which are wholly derived from the Roman civil law. The more ancient Roman expounders of the law

had great differences of opinion; but such differences are to be considered as settled by the text in the Institutes.Mortis causâ donationes ad exemplum legatorum redacta sunt per omnia. Inst. lib. 2. t. 7. Mortis causâ, &c. Vinnius in his Commentary upon this law says, cæterum non simpliciter et per omnia, sed κατα τι, et maxime ratione effectorum.The following are the distinctions:

1. That the donatio mortis causâ is absolute by the death of the donor, without revocation; whereas the legatary interest vests by the acceptance of the hæres scriptus.

2. That delivery to, and acceptance by, the donee are absolutely necessary; and when the subject of gift is actually delivered and accepted, a dominion in the thing passes to the donee, enabling him to dispose of it in the mean time. Dig. 39. tit. 6. 1. 14. & l. 39.

These two principles seem to be the grounds which exclude our spiritual courts of jurisdiction, which has been decided in Thompson v. Batty, Strange, Rep. 777, upon a motion for a prohibition, when it was said, the question may be tried in an action of trover. How an action at law can arise where this question is directly

in issue, may be collected by the authorities cited in Viner's Abridgment, tit. Gift; in the cases of gift absolute, and, by analogy, in cases of gift sub modo. An instance is there cited of the case of the gift of a jewel, in expectation of marriage, and an action to recover it upon failure of the marriage taking effect. And leaving out of view the technicality of the Roman civil law, and adopting only the principle that the property vests in the donee, but is capable of being revested in the donor at his will, the technical principles of our common law actions may suffice to decide questions of property arising upon a gift in contemplation of death.

It is a remarkable circumstance that our Law and Equity Reports are silent upon the subject of donatio mortis causá until the case of Jones v. Selby, in 1710. Since that time there has been a series of decisions in the Courts of Equity, turning upon some very nice distinctions. The principal cases are referred to; and the reasons upon which they were adjudged are examined, in the note to Spratley v. Wilson, ante, 11, 12. Wood, in his Institutes of the Law of England, does not point out any trace of this question having

1816.

BUNN

and Another

2.

MARKHAM

and Wife.

1816.

BUNN

v.

MARKHAM and Wife,

arisen in our Courts in his time, although he must have been well aware of it as a and Another branch of the civil law. Swinburne on Wills, p. 12, gives only what he has borrowed from the Digest, with an opinion how this gift is restrained by the stat. of Eliz. against fraudulent conveyances. But if we are to adhere strictly to the rules of the Roman civil law, it is unnecessary to resort to the aid of the statute of Eliz, for this principle; for that law, founded as it is upon the most admirable equity, would not allow donations of

this description to defeat the just claims of creditors against the general property of the deceased donor. Dig. 39. tit. 6. 1. 17. But there is nothing to shew how this branch of our law was acted upon by our Courts in his time. The commencement of the cases upon this head seems to have been the effect of that part of the statute of frauds which relates to nuncupative wills; they appear to be a struggle to support, in courts of equity, claims which, but for the statute of frauds, would have been brought forward in the spiritual courts.

1816.

SITTINGS AFTER MICHAELMAS TERM, 57 GEO. III.
AT GUILDHALL.

BENNETT and Another v. MORTA.

HIS was an action on the case, which was brought by the plaintiffs, who were the owners of the ship Ranger, against the defendant, captain of a brig called the Carvaltoo, for running foul of their vessel in the River Thames.

TH
Tbrought by the plaintiffe, auto where

[blocks in formation]

the sea, but

to navigable
rivers. If an
accident oc-
cur by the

running
of the plain-
tiffs' vessel,
whilst a pilot
board the ves

is lawfully on

sel of the de

fendant, the nerated from all responsibi lity; being di

latter is exo

It appeared that the Ranger took a pilot on board, off Gravesend, to navigate her to her mooring near Rotherhithe; that, immediately after the Carvaltoo had swung to her anchor, the defendant's brig turned a point of the River Thames, opening to Limehouse-reach, with too great a press of sail; and that she did not take in her sails, and let go her anchor, with sufficient expedition, to prevent her running foul of the Ranger, the ship, pro which she struck on her larboard fore chains, doing presence of the considerable damage to her hull. It appeared, however, that there was an old and experienced pilot on board the Carvaltoo.

Lens, serjeant, for the defendant, objected that

vested of his

authority in

tempore, by the

pilot. But the

captain would for any misbe responsible chief directly moving from himself.

« PreviousContinue »