CHAPTER
XI.

After holder's death.

After his bankruptcy.

After marriage.

By deposit with a banker.

Transfer by way of pledge.

formed, but the remedy is to be moulded by the law of the country where it is sought (n). A bill is to be considered as made in the country where it is to be paid.

This subject, however, will be considered more in detail in the subsequent Chapter on FOREIGN BILLS and FOREIGN LAW (0).

After the death of the holder his personal representatives should transfer (p). But where indorsement is necessary, and the testator has only written his name on the bill without delivery, the executor cannot complete the indorsement by mere delivery (q).

After the holder's bankruptcy his assignees should transfer, unless the bankrupt were merely agent or trustee. For the Bankrupt Laws have no operation on any property in the possession of the bankrupt, unless he have therein a beneficial interest (r).

The husband of a married woman, who acquires a right to a bill or note given to the wife, either before or during marriage, should indorse (s).

Bankers have a general lien on all securities for money which are deposited with them, as bankers, in the way of their business, and therefore on bills and notes payable to bearer, or on Exchequer bills, although the customer who deposited them was not the real owner, and had no authority to give a lien (t); but not on Exchequer bills delivered to them merely for the purpose of receiving the interest and exchanging them for new ones (u).

Where chattels are pledged as security for a debt payable at a day prefixed, the pledgee has at common law on default of his debtor, and after giving notice to redeem, a right to sell the pledge and reimburse himself (x).

This power of sale extends not only to a pledge of chattels, but to a pledge of stock or annuities (y).

The rule of the civil law is in substance the same. "Venduntur pignora simul atque solutionis dies venit, et debitor legitimo modo interpellatus, sine justâ causâ cessat” (z).

But a mere pledge of negotiable paper does not, it is conceived, confer a power of sale. For the pledgee is trustee of the rights and obligations of the holder. He cannot transfer his trust, but must preserve his remedies and collect payment from the parties liable at maturity. His transfer, though it may confer title, will not exonerate himself (a).

CHAPTER

The words goods and chattels, or either of them, in a By will. testamentary instrument, will pass all the personal estate of the testator, including choses in action, such as bills and notes. But, where the bequest is of all goods and chattels in a particular place, bills and notes in general do not pass. But it has been considered, that such notes as are commonly treated as money will pass (b).

causa.

XI.

It may not be useless to subjoin a few words as to the Donatio mortis extent to which bills or notes may be the subjects of a donatio mortis causâ (c).

The law on this subject is entirely derived from the civil law. But the Digest and the commentators distinguish between several species of donatio mortis causâ, and in a manner very unsatisfactory (d). A donatio mortis causâ is thus defined in the Institutes: Mortis causá donatio est, quæ propter mortis fit suspicionem, cum quis ita donat, ut si quid humanitus ei contigisset, haberet is qui accipit; sin autem supervixisset, is qui donavit reciperet, vel si eum donationis pœnituisset, aut prior decesserit is, cui donatum sit. Et in summa, mortis causâ donatio est, cum magis quis se velit habere, quam eum cui donat, magisque eum cui donat, quam heredem suum. But, as now understood in the law of England, a donatio mortis causâ is

C. B., N. S. 701; 2 Kent's Com. 805; Martin v. Reed, 31 L. J., C. P. 126.

(y) Tucker v. Wilson, ubi sup.; Lockwood v. Ewer, 2 Atkins, 303.

(z) Doctrina pandectarum, cap. 6, s. 318.

(a) See 2 Kent's Com. 802, 805; Appleton v. Donaldson, 3 Bur. 381; Browne v. Ward, 3 Duer. 360.

(b) Stuart v. Bute, 11 Ves. 662; S. C., in Dom. Proc., 1 Dow. 73; see 1 Roper on Leg. 224, 3rd ed.; 2 Wms. on Exors. 648 and 942, 3rd ed.

(c) See further on this subject
the profound work of Mr. Justice
Williams on Executors.

(d) See the judgment of Lord
Hardwicke, in Ward v. Turner, 2
Ves. 431, and of Lord Roslyn, in
Tate v. Hilbert, 2 Ves. jun. 111.

CHAPTER
XI.

a conditional gift by the donor in contemplation of death (e)
to take effect in the event of death (ƒ). The result of the
cases seem to be, that a bond (g) or a policy of insurance (h),
or a bank note, or bill of exchange, or promissory note,
specially indorsed to the donee or made or become pay-
able to bearer, may be the subjects of a donatio mortis
causâ (i), and that the delivery of a bond with mort-
gage deeds will impose a trust upon the real and personal
representatives in favour of the donee (k). But a check
drawn by the donor upon his own banker cannot be the
subject of a donatio mortis causâ, because the death of the
drawer is a revocation of the banker's authority to pay (1).
No more, it is conceived, would be the gift of an IOU (m).
And negotiable instruments, which are commonly treated as
money for other purposes, may, like money, pass as dona-
tiones mortis causâ (n). The Courts lean against this sort
of disposition. "Improvements in the law," says Lord Eldon,
For some things which have been considered improvements,
have been lately proposed, and if, among those things called
improvements, this donatio mortis causâ was struck out of
our law altogether, it would be quite as well" (o). Yet it

66

(e) Duffield v. Elwes, 1 Bligh, N. S. 530; Miller v. Miller, 3 P. Wms. 356. See the opinion of Eyre, C. B., in Blount v. Barrow, 1 Ves jun. 546; but the qualification as to last illness is not found in the report of the case; 4 Bro. C. C. 72. See 1 Roper on Legacies, 3rd ed., and Williams on Executors, 3rd ed. 609.

(f) Delivery to an agent of the donee will be good, but not to a mere agent of the donor; Farquharson v. Cave, 2 Coll. 356; Powell v. Hellicar, 28 L. J., Chan. 355; 26 Beav. 261, S. C. A mere symbolical delivery will not suffice, Ward v. Turner, supra. There must be an actual delivery, Bunn v. Martham, 7 Taunt. 227; 2 Marshall, 532, S. C.; Tate v. Hilbert, 2 Ves. jun. 120; Irons v. Smallpiece, 2 B. & Al. 553.

(g) Snellgrove v. Baily, 3 Atk. 30.

(h) Witt v. Amiss, 30 L. J., Q. B. 318.

(i) Drury v. Smith, 1 P. Wms. 405; Miller v. Miller, 3 P. Wms.

(k) Duffield v. Elwes, 1 Bligh, 409.

Beake

(1) Unless cashed, or it seems presented for payment, in the lifetime of the donor. Bromley v. Brunton, L. R., 5 Eq. 275; Bouts v. Ellis, 17 Beav. 121; 4 De G., M. & G. 249; Powell v. Hellicar, 28 L. J., Chan. 355; 26 Beav 261, S. C.; Hewitt v. Kaze, L. R., 5 Eq. 198; Byles on Bills, 5th American edition, p. 101. Break (m) Tate v. Hilbert, 2 'Ves. jun. 111; 4 Bro. C. C. 286. For Law R a check imports immediate payment; but a check to buy mourning has been held to be the subject of a donatio mortis causa. Lar- 489 son v. Lawson, 1 P. Wms. 441: but see 2 Ves. jun. 121; see also as to checks, Bouts v. Ellis, 4 De G., M. & G. 249.

(n) See Ranklin v. Weguelin, 27 Beav. 309; 29 L. J., Chan. 323, S. C.; Veal v. Veal, 27 Beav. 303; 29 L. J., Chan. 321, S. C.

(0) Duffield v. Elwes, 1 Bligh, 633, A. D. 1827; 7 Taunt. 221, S. C.

1389:

has since been twice held that a promissory note payable to order and not indorsed may pass as a donatio mortis causâ (p).

A donatio mortis causâ may be made subject to a condition or trust (q).

CHAPTER
XI.

a legacy.

A donatio mortis causâ resembles a legacy in these How it resembles respects, that it is revocable during the life of the donor, that it is subject to debts on a deficiency of assets (r), that it is liable to legacy duty (s), and that it may be made to the donor's wife.

It differs from a legacy in these other respects; that it How it differs does not require probate, and that although it be of a specific from a legacy. chattel, yet the executors' assent is not necessary (t).

A donatio mortis causâ differs from a gift inter vivos in these respects. It is revocable. It may be made to a man's wife; and it may be of a bond or mortgage deed, though neither the debt would have passed at law, nor equity have converted the donor into a trustee.

The Wills Act, 1 Vict. c. 26, has not abolished donationes mortis causâ (u).

Bills or notes could not at common law be taken in exe- Execution. cution, at the suit of a subject; nor, if taken, could the sheriff or his assignee acquire a title against the other parties to the instrument, they being only assignable by the custom of merchants, in the way of ordinary mercantile transfer. And such as more nearly resemble money than securities, as bank notes, were, like money, not subject to be taken in execution (x).

But now by the 1 & 2 Vict. c. 110, s. 12, money, bank notes, checks, bills, and promissory notes, with all other securities for money, may be seized under a writ of fieri facias. The sheriff is to deliver the money and bank notes to the execution creditor, and is to receive payment, or to sue in his own name, being indemnified by the plaintiff, on the checks, bills, or notes.

(p) Veal v. Veal, 29 L. J. Chan. 321; 27 Beav. 303, S. C.; Ranklin v. Weguelin, supra.

(q) Blount v. Burrow, 4 Bro., C. Č. 72; Hills v. Hills, 10 L. J., Exch. 440; 8 M. & W. 401, S. C. (r) Smith v. Caren, 1 P. Wms. 406.

(s) 8 & 9 Vict. c. 76.

B.

(t) Thompson v. Hodgson, 2 Stra. 777.

(u) Moore v. Darton, 4 De G. & Smale, 519.

(x) Francisv. Nash, Rep. temp. Hardwicke, 53; Knight v. Criddle, 9 East, 48; Fieldhouse v. Croft, 4 East, 510.

N

But if the creditor, before receiving payment, proceeds against the person of the defendant, he forfeits the benefit of the security (y).

Bills and notes are liable to be seized under an extent (z).

Bills or notes are not the subjects of larceny at the common law; for it is said, that bills or notes are choses in action, and a chose in action cannot be stolen (a). But, by the 24 & 25 Vict. c. 96, s. 27, the stealing of any bill, note, warrant, or order for the payment of money, is made felony, of the same nature, and in the same degree, and punishable in the same manner, as larceny of any chattel of like value with the money due on the security.

The embezzlement of bills or notes by clerks or servants is felony (b).

The embezzlement of bills or notes by agents, not being clerks or servants, or the selling, negotiating, or pledging them, in violation of the purpose for which, by a written direction, they were intrusted, and the disposing of them for the agent's own benefit, is a misdemeanor subjecting to penal servitude (c).

Where a man is both entitled and liable on the face of a bill, or liable to contribute, though his liability do not appear on the face of the instrument, he cannot sue. But the technical difficulty may be removed by indorsement or transfer (d), before the bill is due.

(y) Sect. 16.

(2) West, 27, 28; 164-5.

(a) As a general rule a piece of paper or parchment, whether blank or inscribed with any characters, is the subject of larceny. But there are at common law two exceptions, first, a muniment of title to land, which, it is held, savours of the realty. Secondly, a written paper, which is mere evidence of a right, resting in contract only, like a bill, note, bond, or executory agreement. A reason given in both these cases is this, that the documents are of no use to any but the owner, and therefore are not in danger of being stolen. On which it has been well remarked,

that "if I steal a skin of parchment worth 18. it is felony, but when it has £10,000 added to its value by what is written upon it, then it is no offence to take it away." Rex v. Westbeer, 2 Stra. 1133. These exceptions are palpably capricious and unreasonable, and are not to be extended. Therefore, it has been held, that a pawnbroker's ticket may be the subject of larceny. Reg. v. Morrison, 28 L. J., 210, Mag. Ca.

(b) 24 & 25 Vict. c. 96, s. 68. (c) 24 & 25 Vict. c. 96, s. 75. (d) See Steele v. Harmer, 15 L. J., Exch. 217; 14 M. & W. 831, S. C., and 4 Exch. 1, in error, and

ante.