« EelmineJätka »
As the fourth of July is approaching it is well to open and in repair and free from nuisance.' In our be forearmed. In Robinson v. Greenville, 42 Obio opinion however the word nuisance, in this conSt. 695, it was held that a city is not liable for an nection, does not include an assemblage of persons injury to a person passing in a street, by reason of engaged in such unlawful act, but refers to somethe negligent discharge of a cannon by disorderly thing which is in a sense fixed or permanent as a persons. The court said: “Undoubtedly there is defect in the street. But if we could hold otherwise, difficulty sometimes in determing the class in which the result would be the same, for if nuisance emat particular case must fall; and it is also true that braces a mob), then the city is not liable for such there is considerable conflict in the authorities, as nuisance, on the principle already stated.” See to the extent of such liability. We will make 110 Tindley v. Salem, 137 Mass. 171. attempt to settle this conflict, but have referred to the above cases for the purpose of illustrating the
A piggery is an indictable nuisance. ('ommondistinction alreally stated between cases falling
uculth v. Perry, Massachusetts Supreme Court, within the police power of the corporation and those March, 1885. The defendant asked the judge to in which it represents the property rights of the instruct the jury that evidence of the natural odors citizen. Reference to most of the cases on the sul) which come from the bodies of domestic animals, ject, decided previous to 1877, will be found in however annoying to certain persons, would not IIill v. Boston, 122 Mass. 31-1; S. C., 23 Am. Rep. sustain an indictment for a nuisance; and that the 332; and sec Springfield v. Spence, 39 Ohio St. 665; keeping of swine to the number of 500 near dwellBathurst v. Jacpherson, 4 App. Cas. 256; Barnes v.
ing houses and streets of a town was not per se a District of Columbia, 91 U. S. 5:10. That firing can
nuisance, The judge refused so to instruct, and innon in a public street of a municipal corporation, structed the jury that the natural odor of one aniexcept in case of imperative and urgent necessity, mal might not be a nuisance, but the natural odor is an intolerable nuisance, and that all persons en
of 500 miglit be; that it was for the jury to say gaged in such unlawful act are personally liable for
whether it was so in this case; that 500 swine kept all damages caused thereby, are propositions con
in the vicinity of roads and «lwelling houses might cerning which there is no room for difference of opinion. But a very different question is presented people residing in the neiglıborhood of this piggery
become il nuisance, where one woull not; that is
had a right to have the air free and uncontaminated juries on a municipal corporation. We cannot say
by odors, smells and stenches offensive to the senses; that the firing complained of in the petition was
that it was not necessary for the government to show licensed or expressly authorizei. While the com
that the contamination of the atmosphere was to mon law rule, that pleadings must be construed such an extent as to cause an actual injury to health, most strongly against the pleader, has been abro
but it would be suflicient for it to show that the gated, we are not required, under the present system,
smells and stenches were so offensive as to render to construc every equivocal word or phrase most
the residences and habitations in the vicininty unstrongly in favor of the pleader.
On the contrary,
comfortable; and that the keeping of swine to the the meaning of the pleader must be fairly ascer
number of 500 near dwelling houses and streets of tained, without regard to technical rules from the
a town would become il nuisance, if smells and whole instrument. Crooks v. Fimay, 39 Ohio St.
stenches actually emitter from such keeping were 57. Of course, is legal or technical words are used, such as to render the dwelling houses uncomfortable we are to understand them in their recognizeil
for residents, or to render the passing in the streets sense, unless the context shows another sense was
uncomfortable. The court, on appeal, affirmed the intended. The words of the petition, fairly con
conviction, observing: “A piggery in which swine strued, charge no more than that the authorities of
are kept in such numbers that their natural odors the village permitted, that is, took no measures to
fill the air thereabouts and make the occupation of prevent, such firing; and so the case clearly falls
the neighboring houses and passage over the adwithin the first class to which we have referred, anı
jacent highways disagreeable or worse is a nuisance. hence the corporation is not liable. Vorristown v.
Commonwealth v. Kider', 107 Mass. 188. The Fitzpatrick, 94 l'enn. St. 121; S: C., 39 Am. Rep.
indictment was sufficient, and the instructions 771; and Boylanıl v. Merr York, 1 Sand. 27, are
asked were crroneous. both remarkably like this case in their facts, and in cach it was held that the corporation was not liable. And see Campbell's alım'r, v. ('ity Council of Hont A curious question of right in a party wall was gomery, 53 Ala. 327; Cily of Lufayette
Lafayette V. decided by the Pennsylvania Supreme Court, in Timberlake, 88 Ind. 330. To be sure, it is IcCull's 1pal, March 30, 1885, 16 Weck. Notes urged here that the village is liable by force of the Cases, 95. A. crected a solid party wall the whole Revised Statutes, § 2610, which provides: The length of his building to the height of sixteen feet council shall have the care, supervision, and con above the ground. Ile continued the wall as a solid trol of all public high ways, streets, avenues, alleys, wall to the height of seventy feet except in three side walks, public grounds and bridges within the places, forty feet apart, where he receded from the corporation, and shall cause the same to be kept | party wall nine feet, and then built on foundations
on his own ground, thus forming recesses for light the partnership business; and in an action to recover and air. Held, that he had a right to do this, and the latter alone the party sued may set off a debt due should not be restrained. The court said : “At him from them having no relation to the transactions present, the appellant has sustained no injury by of the firm. Collyer Part., § 764; Holbrook v. Lackey, reason of these recesses being left open. He may 13 Met. 132, 134; Nehrboss v. Bliss, 88 N. Y. 604. fill them up for the support of any building he may The relation of the surviving plaintiffs to the action erect on the party wall.”
is in no sense that of representatives or assignees of
the firm as distinguished from the firm itself. The In Shale v.
cause of action is theirs, deemed originally theirs, Minges, 35 Hun, 622, it was held that
and continues to be such. They in law are princian action brought by the members of a firm for pals and owners in respect to the matters of the partslander of its financial condition and credit does not nership by virtue of their relation as partners and abate by the death of one of the plaintiffs pending because they are survivors. Their rights in that suit. The court said: On the part of the defendant it is contended that the death of one of the right of action in question was in the firm. The
respect are not derivative or representative. The plaintiffs produced a dissolution of the partnership, death of the member neither vests any rights in the that the firm then ceased to exist; and therefore survivors, nor does it divest them of any rights of the practical effect is the same as that produced by property or action then existing. In the prosecuthe death of a sole plaintiff. The question is novel
tion of this action they are exercising no new or and must be disposed of on principle deemed appli- derived powers, and asserting no new or additional cable to the nature of a partnership and the relation
rights. Adams v. llacket, 27 N. H. 289; 59 Am. Dec. of the surviving members to it. If it may be said
376, 377. that a firm as such has an existence in the legal sense distinct from its members, that the right of
JY FIRST CASE. action depends upon the continuance of such entity, and that by the death of one of its members that
A SKETCI AT THE MANSION HOUSE. entity disappears, then a reasou can be seen for the result given at the circuit. In such case there would
URIED in the twilight of an underground den, remain no plaintiff to prosecute the action and it known as Mr. W's office, Guild Hall, I was woull necessarily abate. But on the death of one regretfully ruminating over the fate which had transof several members of a partnership no personal rep ferred me, a lail of seventeen, from the pleasant resentative takes his place in respect to the partner leisure of a country town, with abundant cricket and ship property. Ile by the event is taken out of the no drudgery, to my present quarters, where circumfirm, and a dissolution is the consequence, but prac stances were exactly reversed, when the sudden tically the dissolution has relation only to subse- appearance of the lively Captain C. woke me up. quent business transactions to a qualified extent. This gentleman, ever jovial and impecunious, was a While the agency in the surviving members is so fine specimen of the “promoter " class and the pen qualified that they cannot create any new obliga- of Dickens alone could have done justice to that tions or liabilities, their relation to the situation in natty, blithe exterior and that frank insouciant adwhich the death of the member left the property «ress which had so long enabled their adroit posand business enables them respectively to manage sessor to live upon his wits and the British public. and control its affairs as fully and completely as On this occasion he was even livelier than usual, before.
The joint relation of the surviv being, as he quickly informed me, about to appear ors is not broken into a tenancy in common by such in a new role, that of defendant at the Mansion death, nor are their relation and equities impaired House police court, in a charge of defrauding a railby it. The property of the firm does not, nor do way company. Ilis face fell somewhat when he any rights of action in respect to its matters pass to learned that Mr. W. was at Westminster and not any representative of the partnership. It and all likely to return till the afternoon, but as the sumthe then existing rights of the firm continue in the mons was for eleven o'clock, and that hour was survivors, and are theirs at law the same as they had already past, there was no time for deliberation, and been prior to the death of the one member; the after a minute's pause, he asked me to accompany property and rights of all united. And to that ex him and as he expressed it, "cheek the thing through tent, and for all practical purposes
limited as before somehow.” Accordingly off we went together armmentioned, it may be said that the place prior to in-arm stopping on our way to adorn ourselves with that event filled by the three is after such death oc flowers, in approved city style. The facts of C.'s cupied by the two survivors. Adams v. llackett, 27 offense were very simple. On arriving at his office N. H. 289; 59 Am. Dec. 376; Nehrboss v. Bliss, 88 a week or so before, he had found a telegram N. Y. 600, 604. The title and rights of the surviv there, summoning him out of town for some days. ors are original and complete in them. The law IIe sent a commissionaire to his wife at his suburbam recognizes no distinction between a debt due the home, with a note to explain his absence, and, survivors in their own right and as surviving part thinking no harm, gave the man the return half of ners. They may join in the same action a claim his railway ticket. Now the commissionaires, who, duc them independent of it, with one arising out of | be it explained, are a corps of old soldiers uni
formed, organized in semi-military style, and much Westminster, roaring with laughter, and showed used in London as quick and thoroughly reliable me the "Echo" where, under the heading “Attempt messengers, are not in the habit of indulging in at extortion by a railway company,” the magisfirst-class carriages, and the circumstance of this trate's remarks appeared in full, and the closing messenger riding in such style attracted the ticket
sentence was, "the defendant and his youthful collector's attention, who took down his employer's solicitor left the court amidst applause, which was name and address. The gallant captain, on his speedily suppressed.” C., like a good fellow, took return to town, found a letter awaiting him from the me out to dinner at Blanchard's, and a jolly evening solicitors of the railway company. stating that by celebrated the lucky termination of my first case. giving away his ticket, he had broken the by-law
A. B. M. printed thereon and laid himself open to a penalty. C. wrote a sensible letter in reply, explaining that DELIVERY NOT ALWAY'S ESSENTIAL TO A it was an inadvertence on his part which should not
GIFT, . gain, and he felt justly indignant, when with
II. no further ceremony, he was served with the present
Unfortunately he had kept no copy of A portion of the fund was withdrawn by the deposihis letter. Arrived at court, we were by no means tor. The court said: “Sho may not have been aware pleased to see the venerable but strict Sir Robert that she had no right to draw from the trust fund, but Carden on the bench, in the place of the genial
that fact would not take away the character which she
had given to that fund." In this case there was howStone, who at that time occupied the civic chair.
ever no controversy about the fund that had been Sir Robert, too, was evidently in a tantrum and was drawn out, the action having been brought by the dejust galloping, spurs and all, down the throat of an positor's administratrix to determine the question of unfortunate and nervous lawyer wlio seemed unable the beneficiary's title to the fund that still remained either to contradict him with firmness or to yield only obiter, as in Martin v. Fuuli.
on deposit. The opinion of the court on this point was with grace. My courage was fast ebbing out at my
In Minor v. Royers the beneficiary was not aware of shocs, when a keen looking man, with a single eye the trust until after the depositor's death, and it apglass, whom I instantly recognized as the famous peared that ho had drawn out the amount of the deGeorge Lewis, the hero of the criminal courts,
posit. The court sustained a judgment against the courteously made room for me, beside him in the
depositor's administrator for the full amount of the
deposit. This decision is a clear and express authority lawyer's pen. To him I made bold to explain my
in favor of the irrevocability of such a trust, and thus predicament and in a few words lie put me right. the law may be regarded as settlod. “Don't plead guilty, let them prove their case and While as between the depositor and tho cestui que call for the letter. I you get hold of that, you'ro trust the title passes at once on the making of the deall right. No one will ask you if you are admitted.”
posit, yet for at least one purpose, the depositor, when
ho makes himself trustee, is still regarded as the owner In a few minutes our case was called. The com
of the fund. Ho may draw it from the bank, and tho pany's lawyer, after a short speech, which had the bank is protected in paying him, though it expressly good effect of annoying Sir Robert, who seemed to appears that he is a mero trusteo as to the money, unbe in a great hurry, put the commissionaire and the less the beneficiary under the trust has claimed the collector in the box. My mind was relieved when
fund and directed tho bank not to pay it to the trus
Boone v. Citizens' Bank, 84 N. Y. 83. This caso he handed me the letter, saying in an aside, that
went even further, and decided that payment by the she didn't want the full fine only an example" bank to the administrator of the depositor and trustee When my turn came, 1 simply read the letter and was a valid payment of the cestui que trust. The court asked the alderman if he did not think it rather said: “It may not be doubted that if the intestate in hard that a gentleman should be brought into a
her life-time had demanded the money of the bank
and had presented her pass-book, no claim by tho police court for a mere inadvertence such as any one
beneficiary having been interposed, the bank would have might commit, especially after such a fair and reason
been bound to pay; and this for the reason that such able letter. The old man oyed C. for a moment, and was their express contract. What the trust was they then went for the company in a manner perfectly
neither knew nor were bound to inquire. That was a refreshing. Their lawyer tried to expostulate and
matter wholly between the trustee and cestui que trust made matters worse
at least until the latter gave notice to the bank of a “Outrageous piece of op
hostilo claim. They had received the money of the pression "-"abominabile pettifogging "— such were
trustee, agreeing to return it to her as trustee on desome of the judicial utterances, and he closed by mand. When she called for it they were bound to pay, saying that the defendant left the court with the and having done so were discharged from liability.'
“But Susan Boone (the trustee) died besincere regret of the bench that he should ever have been brought there. Mr. Lewis turned to me
fore withdrawing the money. If now her right to de
mand and receive the deposit devolved upon her adwith a pleasant smile and a pleasant wish that my ministrator, no change came over the right and first case might be the commencement of many suc duty of the bank as it respected a payment to him cesses, a wish that unfortunately has not been ful All the right of the deceased to demand and receive filled.
the money would pass to him, and such payment by the For the rest of that day I imagined myself a
bank to him would be so effectual a discharge as if paid
to the intestate in her life-time. We are of opinsecond Cicero, and the climax of my pleasure was
ion that upon the death of Susan Boono her rights as reached, when in the evening W. came back from trustee devolved upon her administrator” (citing au
thorities). * “When therefore he appeared at hostility to the trust. The testator held the legal title the bank and produced his letters of administration to the fund as trustee, and it was competent for him and the pass-book, which by the contract was evi to withdraw it to make another investment or for any dence of his right to withdraw the deposit, and de. purpose not inconsistent with the trust. There is no mand its payment, the bank had no alternative. It evidence that he ever repudiated the trust, and no had no right to inquire into the character of the trust, presumption that he did so can be indulged to let in and owed no duty to the beneficiary until the latter the defense of the statute of limitations. The right of by notice or forbidding payment or demanding it for action upon the facts presented did not accrue until himself, created on the part of the bank such right and the testator's death, which presumptively upon the duty."
evidence was the period when the trust terminThe decision of the court below was against the val
ated." idity of the payment, the court in effect deciding that The rulo declared in Young v. Young, 80 N. Y. 422, the creation of the trust operated as an immediate that no trust could be created where the donor intransfer of the title to the deposit to the cestui que
tended to make a gift and not to establish a trust, was trust. On this point the Court of Appeals say: “Vor held in that case to apply even to cases where the does it alter the situation to call this an executed donor and intended doneo sustained to each other the trust and insist upon the right of the beneficiary to relation of parent and child. In that case the donor have the pass-book and the fund. If he has such a was the father of the two sons to whom he clearly inright it reaches the bank through the trustee, and the tended to give the bonds which they claimed. His bank can only pay the beneficiary at the peril of estab acts were hold not to constitute a good gift, and the lishing the latter's right as against the trustee to the court refused to sustain the transaction as a declarapossession of the fund.”
tion of trust, because a trust was not intended. The This does not appear to be a very satisfactory answer court said: “It has in some cases been attempted to to the argumert of the court below that the title was establish an exception in favor of a wife and children in the beneficiary. The principle on which all the on the ground that the moral obligation of the donor courts have proceeded is that the creation of a trust is to provide for them constituted what was called a as effectual to pass the title to property or money as a meritorious consideration for the gift; but Judge valid gift consummated by delivery. As between the Story (Eq. Jur., vol. 2, § 987, and vol. 1, § 433) says trustee and the costui que trust the title at once passes. that the doctrine seems now to be overruled, and that
The bank can justify payment to the trustee only on the general principle is established that in no case the ground of ignorance of the nature of the trust. It whatever will courts of equity interfere in favor of cannot claim that the trusteo has any right to the mere volunteers, whether it be upon a voluntary confund. He has no active duty to perform. The trust is tract or a covenant or a settlement, however meritoa merely passive trust. The beneficiary has the right rious may be the consideration, and although the bento sue for and recover the money. It is his in every eficiaries stand in the relation of a wife or child. Holsense of the word. The bank cannot with very good loway v. Ileadington, 8 Sim. 325; Jefferys v. Jefferys, grace set up ignorance of the nature of the trust to ex 1 Craig & Phillips, 138, 141." onorato it from liability to the beneficiary. It knows Another exception to the rule that delivery is essenthat a trust has in fact been created. The nature of tial to the validity of a gift is the well-established docthat trust can be ascertainedl; or it can notify the trine that whero securities or contracts are taken or beneficiary of the deposit, and if he claims the money the deposit of money is made by a husband in the it can protect itself against a double payment by an in joint names of himself and wife, or in his wife's name terploader. It is thus apparent that no great hardship alone, the transaction constitutes a gift revocable durwould be iniposed on the bank by requiring it to pro ing the life of the husband, but irrevocable after his tect the rights of the cestui quelrust. The rule estab. death, although there has been no delivery of the selished by the Court of Appeals is in conflict with prin. curity, contract or instrument to the wife, and alciple, as it permits tho bank to exonerato itself from though no consideration is paid by her. Scott v. liability to A. by paying his money to B., and more. Simes, 10 Bosw. 311; Roman Catholic Orphan Asylum over this rule utterly ignores the rights of tho bene v. Struin, 2 Bradf. 31; Borst v. Spelman, 4 N. Y. 284; ficiary to the deposit, and permits the bank to disro Sanforil v. Sanford, 15 id. 723; Draper v. Jackson, 16 gard his rights to money under its control when Mass. 480; Gatcrs v. Mudeley, 6 Mees. & W. 423; Christ it might fully protect him without injury or loss to Hospital v. Bulgin, 2 Vern. 683; Dummer v. Pitcher, itself.
5 Sim. 35. A question of sono interest was decided in Il’illis v. In Sanford v. Sanford the court said: “Taking this Smyth. The original deposit was in trust for Sarah J. noto in the namo of himself and wife shows that the Urner. She subsequently married. After that husband intended thereby to give it to her in case she another deposit of $2,000 was made to tho samo ac
survives him, and a delivery to her was unnecessary count. It was urged that as to this $2,000 there was to perfect tho gift." no valid trust for the reason that thero was then no In Roman Catholic Orphun Asylum v. Strain the hus. such person as Sarah J. Crner in being. The court band deposited a sum of money and took a certificate said: We think this position not well founded. It of deposit in favor of himself and wife. The surrois manifest that the deposit was made for the benefit gato held that on his death she became the absolute of the intestate's daughter originally and continued so owner of the money. after her marriage. Her marriage could not chango In Dummer v. Pitcher the husband transferred two the nature of the deposit or the intention of the intes sums of bank annuities into the names of himself and tate to make it for her daughter's benefit."
wife, and died in her life-time. The court held that In Jabie v. Bailey the statute of limitations was set
on his death she became absolute owner. up as a defense. The depositor and trustee drew out In Christ's Ilospital v. Budgin the husband loaned the deposit in 1867. The action against his executor to money on bond and mortgago, and took the securities recover tho amount of the deposit was commenced in in the joint names of himself and wife. The court de1881. The court said: “We think the defense of the cided that the absolute title vested in her on his statute of limitations was not made out, supposing the
death. statute applies in such a caso. The withdrawal of the In Scolt v. Simes the husband took a promissory deposit in 1867 was not so far as the caso discloses in note for money duo him in the name of his wife, but
never delivered it to her, and he collected the interest that thereupon defendant did give plaintiff one dollar
$ 1 00 gift. The taking the security in her name constituted Gift to balance account
820 91 the gift, and its retention in his custody was a delivery and delivered to defendant a receipt, of which the folto her.”
“An executory contract by its lowing is a copy: “Received from Wm. Burton one mero form survives to the wife when made in her
dollar in full to balanco all book accounts up to dato name or the joint names of herself and husband.”
of whatever name and mature." The court held that a In Borst v. Spelmun the court thus expresses the valid gift of the account had been made, and sustained fame doctrino: “Whero an obligation or contract is the defense, Grover, J., saying: “Had the plaintiff taken to the husband and wife, or to the wife alone
written upon a copy of the account that the same was with the assent of the husband, the action survives
cancelled by a gift thereof to the defendant, and signed to the wifo, who is entitled to the proceeds as against and delivered the same to the defendant with intent the heirs and personal representatives of the husband. to make a gift thereof to him, and the latter had acThis is the rule at law as well as in equity."
cepted it as a gift froin him, can there be a doubt that The gift however is not in one sense coca plete. Tho the gift would have been effectual? It was all the dehusband may at any time revoko it. Scott v. Simes, livery the subject was capable of. But in this Sanford v. Sanford, Borst v. Spelman, Roman Catholic
case the plaintiff balanced his books by gift to the doOrphan Asylum v. Strain.
fendant. Had he stopped here, making no delivery of In Sanford v. Sunford the court said: “Taking this any thing to the defendant, tho act would not have noto in the name of himself and wifo shows that the
been of any effect; nothing would have been delivered husband intended thereby to give it to her in case she to bim; and the books continuing in the possession of survived him, and a delivery to her was unnecessary the plaintiff, the gift would not have been executed. to perfect the gift. Assuming this to be, yot during | But when to complete his purpose of giving the debt, the life of the husband, the noto is subject to his con he executed and delivered to the defendant a receipt trol and disposition. The wife has no legal interest in
in full for the account, to effect the intention of the it until his decease.”
parties, the law will construo the instrument, if necesIn Scott v. Simes the court recognized tbis rule, hold
sary, as an assignment of the account and of the right ing that as the husband had not done any act signify of action thereon to the defendant. ing a different intention, “or by which ho revoked
The case of Ferry v. Stephens, 66 Y. Y. 321, was an the gift,” tho property upon his death became tho
action for specific performanco of a contract to con. property of the wife. It has been held that the re
vey real estate. It appeared that S., the owner, intendceipt of interest or dividends on tho security is not ing to give plaintiff the property, executed the consufliciont ovidenco to warrant a court in deciding that tract by which he agreed to convey it to plaintiff on there has been a revocation. Scott v. Simes. In this
payment of $1,100. However it was never intended caso a noto was taken by the husband in the name of that plaintiff should pay any thing, and $. subsehis wife. He collected the interest on it from time to
quently indorsed upon the contract a receipt in full time, and appropriated the interest to his own use. for the purchase price. No money was ever paid. The court held that this did not constituto à revoca The court held that the indorsement of the receipt tion of the gift. Monell, J., said: “The receipt of the constituted under the circumstances a valid gift of accruing interest by the husband was not an appropri- the amount due from plaintiff under the contract, and ation of the principal.” And Robertson, J., in deciding entitled her to specific performance as much as if sho that there had been revocation, said: “The receipt of had actually paid that amount. It does not appear the mere interest is not suflicient for the purpose." Seo
that there was any delivery of the receipt, but thero also on this point Burr v. Sherwo0|1,3 Bradf. 15; Vash
must have been, as it was indorsed upon the contract 1. Vash, 2 Mad. ('. ('. 133.
which was in plaintiff's possession. The question of the validity of a gift has arisen in a
In Carpenters. Souli', 88 N. 1.231, the court found number of analogous cases in the New York ('ourt of that plaintiff had executed a bond and mortgage to deAppeals under circumstances so peculiar that this ar fendant's testator, and that subsequently such testaticle would be incomplete without a brief review of tor, with intention of giving plaiutiff $2,000 to apply on them.
the bond and mortgago, executed and delivered to The first case is Champney v. Blanchard, 39 N. Y.
plaintiff an instrument, of which tho following is a 111. The defendant had in her possession certain
“Received of J. S. Carpenter, of Norway, Ilermoney belonging to one Mary Champney. She deliv- kimer county, New York, two thousand dollars to apored to her il paper stating that fact. Mary Champ-ply on a bond and mortgage I holl against him, tho ney on her death bed gave the paper to defendant, game to be indorsed on said mortgage." The $2,000 was stating that she gave her the money. The court hela
nover actually indorsed upon the bond and mortgage. the gift valil, although there was no delivery of the The court said: “The question comes back to the inmoney: “Delivery of the subject-matter is no doubt quiry whether there was such actual gift both intended essential to gifts either inter riros or mortis causa; but and executed. That fact is found, and rests upon sufthe object of delivery is to give possossion, and in this ficient evidence. There must be a delivery of the gift; caso possession wils already complete in the douce.”
the donor must part with his dominion over it; it In Gruy v. Barton, 55 N. 1. 68, the action was on
must not rest in a mere promise. But the character an account. The defense was that plaintiff had given of the gift dictates the manner of its delivery. llere a the account to defendant. Tho referee found as mat
receip: for so much of the mortgage debt was executed ters of fact that the defendant being indebted to the and delivered with the intention of giving it to the plaintiff', the plaintiff proposed to give him the debt; mortgagor. The mortgage itself was not delivered, bethat the defendant said a gift would not stand in law;
cause not wholly discharged, and the gift was executhat plaintiff said that is defendant would give him ted by the delivery of the receipt which operated to one dollar that he woull make it lawful, and that he cancel and discharge so much of the debt." then proposed that is defendant would give him a dol
In Luukin v. Hardenbrook. 90 X Y. 333, plaintiff's lar, he, plaintiff, would give him the entire dubt; and testator conveyed to defendant certain real property