1823.-Duffield v. Elwes.

it was held that the delivery of the deeds by the mortgagee to the mortgagor, cancelled the debt.

The VICE-CHANCELLOR :-The case of a bond I consider to be an exception, and not a rule. Property may pass without writing, either as a donatio mortis causa, or by a nuncupative will, according to the forms required by the statute. The distinction between a donatio mortis causa, and a nun[*245] cupative will is, that the first is claimed against the *executor, and the other, from the executor. (i) Where delivery will not execute a complete gift inter vivos it cannot create a donatio mortis causa,[1] because it will not prevent the property from vesting in the executors; and, as a court of equity will not, inter vivos, compel a party to complete his gift, so it will not compel the executor to complete the gift of his testator. The delivery of a mortgage deed cannot pass the property inter vivos; first, because the action for the money must still be in the name of the donor; and secondly, because the mortgagor is not compellable to pay the money without having back the mortgaged estate, which can only pass by the deed of the mortgagee; and no court would compel the donor to complete his gift by executing such a deed.

As to the case where a bond accompanied the mortgage deed, I was at first inclined to think that, as the bond alone, if it had been the only security for the debt, would under the decisions, have passed as a donatio mortis causa, so it would draw after it the mortgage, as being a collateral security for the same debt; but, upon further consideration, I think that the delivery of the bond, where there is also a mortgage, cannot be considered as a gift completed. The mortgagor has a right to resist the payment of the bond, without a re-conveyance of the estate; and it cannot be maintained that the donor of the bond would be compelled to complete his gift by such re-conveyThe case of the Duchess of Buccleuch v. Hoare, where I held, that a gift by will of an English bond was a gift also of a Scotch heritable security

ance.

for the same debt, does not apply to this case. There the single [*246] question was, whether the gift of the English bond was not, within

the intention of the testator, a gift of the debt, and did not necessarily carry with it all securities for the debt. The question here is, not as to the intention to give, but whether the gift be completed. I think the gifts were not completed; and must declare, that there was no good donatio mortis causa

(i) It is said in 3 P, W. 356, that a donatio mortis causa operates as a declaration of trust upon the executor.

[1] It is of the essence of a donatio mortis causa, that the gift shall be proved to have been made in contemplation of the donor shortly terminating life by reason of extreme sickness, or extreme old age. The thing must be given with the intention that, in case the donor should recover, it shall be restored to him; Edwards v. Jones, 7 Sim. 325. A mere assignment of a bond, in writing, with delivery to the assignee, without other circumstances, is merely an incomplete gift, and not a donatio mortis causa; Edwards v. Jones, 1 Mylne & Craig, 226.

1823. Bland v. Winter.

of these mortgages, even in the case where the mortgage was accompanied by a bond.[1]

BLAND U. WINTER.

1823, 21st February.-Bend.-Parties.

To a bill filed by an obligee of a joint and several bond for payment of his debt, all the obligorg must be made parties.

THIS bill was filed by the obligee of a joint and several bond, against the personal representatives of one of theobligors, for an account of assets, and to obtair payment of the bond. The other obligor was alive, but was not made a party to the suit; and, when the cause came on to be heard, the question was, whether the other obligor ought not to have been made a party.

The plaintiff, Susannah Bland, on the 6th March, 1808, was possessed of the sum of 9251. three per cents, which, on that day, she transferred to Robert Winter, the younger by way of loan, on his father, Robert Winter, the elder, agreeing to join with him in executing a bond to the plaintiff, to secure the re-transfer of that sum. Accordingly, Robert Winter, the elder, and Robert Winter, the younger, on the same day, executed a joint and several bond to the plaintiff for 1,2001. conditioned for the re-transfer of the 9251. three per cents, on the 6th March, 1809, and for payment, until the re-transfer, of interest equal to the dividends on the stock, at such times as the dividends would have been payable.

*Robert Winter, the elder, after the execution of this bond, conveyed [*247] away the greater part of his real and personal estate to his son, the defendant, William Leyton Winter, and died in 1820, having made his will, by which he bequeathed all his estates, real and personal, to the defendant, William Leyton Winter, and made him sole executor. The testator's personal estate was insufficient for the payment of his debts; and the bill sought to set aside the conveyances to the defendant, as fraudulent. The answer denied the validity of the bond, as against Robert Winter, the elder,

The cause now came on to be heard, and in support of the objection before mentioned, Mr. Horne and Mr. Pemberton contended, that the object of this suit being to make the assets of Robert Winter, the elder, liable, and the bond being joint and several, Robert Winter, the younger, ought to have been a party; because he had a manifest interest in the defence of the suit, and because it was the interest of the present defendant that he should be made a party. For if the plaintiff was entitled in equity, to have the bond paid, the present defendant was entitled to call upon Robert Winter, the younger, to pay his proportion. If it were the case of a surety, it is quite clear he must

[1] As to donatio mortis causa, generally, and donatio mortis causa of a bond, see Edwards 7. Jones, 7 Sim. 325.

1823. Adamson v. Hull.

have been made a party. It is laid down expressly, in Cockburn v. Thompson, (a) that the general rule is, that a plaintiff suing on a joint and several bond, must make all the obligors parties, and that the only exception is, where a co-obligor is a mere surety, and insolvent, or where the demand must be restrained to the principal. Madox v. Jackson,(b) is to the same effect; [*248] and the same rule is there laid down, though that case was decided on particular circumstances. It is true that Collins v. Griffith, (c) is a case where a different doctrine was held. But in Angerstein v. Clarke, (d) Lord Thurlow had occasion to consider both those cases, and he adhered to the decision in Madox v. Jackson thereby overruling Collins v. Griffith. The present is a much stronger case.

Mr. Bell and Mr. Combe, for the plaintiff :

It cannot be held that the co-obligor is a necessary party in this case. This is a mere action at law turned into a bill in equity for the administration of assets. Haywood v. Ovey, (e) and Collins v. Griffith, (f) and the cases mentioned in 1 Eq. Ca. Abr. 93, are authorities to show that the objection now taken, that Robert Winter, the younger, is a necessary party to this suit, is not valid, and ought not to prevail.

The Vice-Chancellor ruled, that co-obligors, being all principals, must be brought before the court upon a bill by the obligee.[1]

1823, 14th and 28th February.-Practice.-Abatement.

Where one of two or more plaintiffs dies before an answer is put in, the suit is abated, and the defendant cannot move that a supplemental bill be filed within a limited time, as in the case of a plaintiff becoming bankrupt.

THERE were two plaintiffs in this case; and, before the answer was filed, one of them died. The defendant now moved, that the surviving plaintiff might be ordered to file a supplemental bill within a limited time, in order to bring before the court the personal representative of the deceased plaintiff, and, in default of his so doing, that the bill might be dismissed.

Mr. Pemberton, for the motion, stated that the defendant could not file his answer to the bill, because the suit had abated by the death of one of the plaintiffs; nor could he move to dismiss the bill for want of prosecution, because the

(a) 16 Ves. 326.

(d) 2 Dick, 738.

(b) 3 Atk. 406.
(e) 6 Madd. 113.

(c) 2 P. W. 313. (f) 2 P. W 313.

[1] Sed vide Story's Eq. Plead. 138. If one co-obligor is dead, it is only necessary to make the surviving obligor a party. Valentine v. Farrington and others, 2 Edw. 53. It is not necessary to make all the joint debtors, against whom a judgment was obtained, parties defendant to a creditor's bill, provided it distinctly appears in the bill, that those who are not joined in the suit are wholly insolvent and destitute of property. Van Cleef v. Sickles, 5 Paige, 505; S. C. 2 Edw. 392.

answer was not filed. plaintiffs.

1823.-Green v. Otte.

The whole suit was abated by the death of one of the

Mr. Koe opposed the motion, as being contrary to the practice of the court. The register, (Mr. Walker,) being referred to, said, that the whole suit was abated by the death of one of the plaintiffs; and that on inquiry he had been unable to find any precedent for such an order as that now moved for. The Vice-Chancellor, therefore, refused the motion. [1]

*GREEN v. OTTE.

1823, 10th February.—Equity of a feme covert against her husband's assignees.

[*250]

A divorce obtained by a wife after her husband's bankruptcy does not entitle her in equity to the whole of a fund bequeathed to her, which came into possession after the bankruptcy; although no settlement was made upon her at her marriage, and her husband at that time received 1,500l. stock in her right.

Upon a reference to the master to approve of a proper settlement upon the wife, out of a fund accruing in her right, which was claimed by the assignees of her husband, the court directed the master to have regard to the extent of the fortune received by her husband in her right, as well as to any other settlement which he might have made on her.

THIS was a bill, by the assignees of a bankrupt, for payment of a legacy to which the bankrupt was entitled, in right of his wife, but the whole of which the wife claimed.

Mary Khuff, who died in November 1813, bequeathed to trustees the sum of 4,000l. four per cent, bank annuities, upon trust, to pay the dividends to Elizabeth Duncan for life, and on her death to pay 3,000l., part of the 4,000%. to the testatrix's niece, Susannah, the wife of James Maund, " to become her's absolutely." The trustees paid the dividends to Elizabeth Duncan accordingly. In February 1820, a commission of bankrupt issued against James Maund, and the plaintiffs in this suit were the assignees of his estate. In May 1821, Elizabeth Duncan died. This bill was filed in consequence of the trustees refusing to transfer the 3,000l. to the assignees, and in consequence of Susannah Maund, the wife of the bankrupt, claiming to be entitled to it for her separate

use.

The bill charged, that a sufficient provision was made for Susannah Maund, and that Elizabeth Duncan had bequeathed to her the residue of her estate for her separate use, and that this residue was of the value of 3,0007.

Mrs. Maund insisted, in her answer, and proved by evidence in the cause, that she had married the bankrupt in 1805, being then only eighteen

[1] Reversed, Turner & Russ. 258, and motion granted. On a death of a party, if the cause survive to or against some other of the parties, so that a perfect decree as to every part of the subject of litigation can be made between the surviving parties, the suit does not abate as to the survivors; and on motion of either party, the court will order the suit to proceed between the parties. Leggett v. Dubois, 2 Paige, 211. For American cases on the subject of abatement, vide Amer. Ch. Di. gest, Practice, I. II.

1823.--Green v. Otte.

years of age, and entitled to 1,500. three per cent stock, which was [*251] *transferred to Maund on the marriage; that no settlement had been made upon her; that in December 1821 she obtained a decree of divorce against her husband in the ecclesiastical court, on the ground of adultery and ill treatment; that a disease was communicated to her by her hus band soon after the marriage, under which she labored for many years, and by which her health was now so much impaired, that she required frequent medical advice and attendance; and that, on account of her husband's bankruptcy, she was unable to obtain from him any allowance for her maintenance. She admitted that her mother had bequeathed some property for her separate use, but denied that it was to the amount of 3,000l.; and insisted that the 3,000, which she now claimed in addition to the property to which she was entitled under the will of her mother (and which, it appeared, did not produce above 167. a year,) was necessary for her maintenance. There was no issue of the marriage, and the proceedings for the divorce were commenced after the bankruptcy.

Mr. Heald and Mr. Wakefield, for the plaintiffs, suggested that the proceedings in the ecclesiastical court, which were not commenced until after the bankruptcy, were collusive, for the purpose of founding the claim now made by the wife. As this legacy was not given to the separate use of the wife, there is nothing in the case to distinguish it from the class of cases which establish the doctrine, that the wife is not ent'tled, as against the assignees of her husband, to have the whole of a fund which falls into possession in her right after the bankruptcy; but is only entitled to have a portion of the fund settled on her. All the leading cases were examined in the case of Beresford v. Hobson.(a)

Mr. Bell and Mr. Pemberton for the wife :-This is one of those cases in which the facts are so strong, as to exclude the husband or his assignees from any claim to the fund. The wife being an infant at the time of the marriage; no settlement made upon her; all the property to which she was then entitled paid over to her husband, and spent by him; the treatment she has received from her husband; the state of her health; her being now actually divorced. from him on account of his conduct, and having no adequate provision for her maintenance--are such facts as must distinguish this from the other cases. In Oxenden v. Oxenden, (b) the court, on the ground of the cruelty and misconduct of the husband, decreed the whole interest of a fund to the wife, for her maintenance. The same thing was done, for the same reason, in Williams v. Cullow. (c) In Watkyns v. Watkyns (d) the same principle was acted upon (a) 1 Madd. 362.

(b) 2 Vern. 493. S. C. Pre. Cha. 239.

(c) 2 Vern. 752. See also Nicholls v. Danvers, 2 Vern. 671, in which case there had been proceedings against the husband in the ecclesiastical court, propter sævitiam.

(d) 2 Atk. 96.