livery of the money, there was a delivery of the means of obtaining the money. Thus far, the law seems to be settled and understood by both parties. The cases cited at the bar, and the able and learned opinion given in the supreme court, leave no doubt on this point.

But the defendant insists that the draft, unaccepted, did not operate as an appropriation or transfer of a title to or lien upon the money in the hands of Clark & Co., the drawers; that it afforded to the plaintiff no remedy legal or equitable against them; that it amounted only to a promise by Smith, the drawer, to pay in case Clark & Co. should fail to do so; that the gift was therefore imperfect and invalid because it was a gift of a promise to pay only, without consideration and without delivery of the thing given. If this was the effect of the draft, the case stands on the same footing, as if the donor had made and delivered to Mrs. Harris his promissory note, as a voluntary gift, in expectation of death; and if such a gift is valid, the plaintiff is entitled to recover in the present case, otherwise not. This question was presented to the supreme court, in the case of Wright v. Wright, 1 Cow. 598. The plaintiff in that case, brought his action on such a note against the executors of the donor, and had a verdict, the defendants being unable to prove the facts on the trial. Soon after the trial, the defendants discovered evidence of the fact that the note was a gift by the testator during his last illness; applied to the circuit judge for a stay of proceedings, in order to move for a new trial, which the circuit judge. refused; the defendants appealed from the decision, and the case came before the court on a special motion. The court, in the reported opinion, said it was clearly inferable from the facts presented in the affidavits, that the note was a donatio causa mortis, and in that respect was distinguished from the case of Fink v. Cox, 18 Johns. 145 [9 Am. Dec. 191), cited by the defendant's counsel. They denied the motion on that ground. From the manner in which that case came before the court, it is fairly to be presumed, that the point on which the case turned was not argued by the counsel with any careful preparation, or examined by the court with the same deliberation as if the question had been presented on a bill of exceptions, or a case made. The granting of new trials on newly discovered evidence, rests in some degree in the discretion of the court. The circuit judge appears to have denied the order for a stay of proceedings, on the ground that the defense was of a nature not to be favored, and although the court put their decision on the ground that

AM. DEO. VOL. LI-23

the note was valid, they may have adopted that conclusion with less caution than if the defense had been of a different character.

Independent of authority, my own judgment would have led me to the conclusion which the supreme court in that case adopted. In natural justice, I see no reason why he who freely and deliberately makes his note or bond to another for the payment of a sum of money, by way of voluntary gift, should not be compelled to perform his engagement. For, although the giver in such case receives nothing in return, for what he agrees to give, the breach of his promise may, by creating unfounded expectations, cause an injury to the donee, which never would have happened if the promise had not been made. But upon a careful examination of the previous and subsequent cases, I am satisfied that a voluntary promissory note without consideration is not, as the law now stands, the subject of a valid gift by the maker, either as a present donation or as a gift to take effect at the death of the donor.

Pearson v. Pearson, 7 Johns. 26, was an action of assumpsit on a promissory note; and the court said that the validity of the note could not be supported on the ground taken at the trial, of its being a gift; for a gift is not consummate and perfect until a delivery of the thing promised, and until then, the party may revoke his promise. A promise to pay money as a gift, is no more a ground of action, than a promise to deliver a chattel as a gift. It is the delivery which makes the gift valid. In Fink v. Cox, 18 Johns. 145 [9 Am. Dec. 191], a father gave a note to his son for one thousand dollars, payable in sixty days. It was a gift founded on the consideration of natural love and affection only. After the father's death, the son brought his action against his father's executors. It was held that although such a consideration is sufficient in a deed, against all persons except creditors and bona fide purchasers, it was not so in a personal action on an executory contract, and the plaintiff on that ground failed. This was regarded as an intended gift inter vivos. The same point was decided in Holliday v. Atkinson, 5 Barn. & Cress. 501. Gifts, however, are valid without consideration or actual value paid in return. But there must be delivery of possession. The contract must have been executed. The thing given must be put into the hands of the donee, or placed within his power, by delivery of the means of obtaining it. The gift of the maker's own note is the delivery of a promise only, and not of the thing promised, and the gift therefore fails. Without delivery, the transaction is not valid as an executed gift; and without con•

sideration, it is not valid as a contract to be executed. The decision in Wright v. Wright, 1 Cow. 598, was founded on a supposed distinction in this respect, between a gift inter vivos and a donatio mortis causa. But there appears to be no such distinction. A delivery of possession is indispensable in either case. In Noble v. Smith, 2 Johns. 56 [3 Am. Dec. 399], Kent, C. J., declares, that delivery in both kinds of gifts is equally requisite, on grounds of public policy and convenience, and to prevent mistake and imposition. Abbott, C. J., in Holliday v. Atkinson, which was the case of a gift of the maker's own note, says that a promissory note is not good as a donatio mortis causa. In McDowell v. Murdock, 1 Nott & M. 239 [9 Am. Dec. 684], Mr. Justice Nott declared, that after examining all the cases brought to the view of the court, he had not been able to discover any foundation for the distiction made between a donatio causa mortis and any other parol gift in respect to the necessity of actual delivery. In New Hampshire, Vermont, Massachusetts, and Connecticut, it has been expressly decided that a gift by the maker of his own promissory note can not be sustained as a donatio causa mortis: Copp v. Sawyer, 6 N. H. 386; Holley v. Adams, 16 Vt. 206 [43 Am. Dec. 508]; Parish v. Stone, 14 Pick. 198 [25 Am. Dec. 378]; Raymond v. Sellick, 10 Conn. 485. And in Craig v. Craig, 3 Barb. Ch. 116, published since the argument of the present case, the late Chancellor Walworth concurs in overruling the case of Wright v. Wright. So far, therefore, as this point may affect the question in controversy in this case, it must be regarded as settled against the decision in Wright v. Wright, and that the gift of the draft in question must fail, if it is to be enforced only as an executory contract against the representatives of the donor.

A donatio mortis causa takes effect from the time the gift is made, but it is revocable during the life of the donor. If not revoked during his life, the title of the donee becomes absolute at his death; and by relation, from the time of the delivery: 1 Williams on Executors, 552. There was no revocation of the gift in controversy by the donor, and it became absolute at his death, if there was a sufficient delivery of the thing given during his life; and this depends on the question, whether the draft without acceptance gave to Mrs. Harris a remedy against Clark & Co., either in law or equity, to recover the money. In other words, did the draft operate as an assignment or appointment to her of so much money in the hands of Clark & Co., or create lien upon it, to be enforced against them? If so, the delivery

was sufficient, because the instrument delivered was the means by which the money could be obtained from a third person. It is on this reason that the gift of a bond or other evidence of debt due from a third person is valid: Snellgrove v. Bailey, 3 Atk. 214; Coutant v. Schuyler, 1 Paige, 316; Wells v. Tucker, 3 Binn. 366; Gardner v. Parker, 3 Mad. 184.

The draft in question is not a check on a bank or on a banker, but an inland bill of exchange. One of the characteristics which distinguish a check from a bill of exchange is that a check is always drawn on a bank or banker: In the Matter of Brown, 2 Story, 502. R. Clark & Co. were the late partners of Sidney Smith, but they do not appear to have been bankers. The instrument in question has the form and requisites of an inland bill of exchange. It is payable absolutely and at all events, and not out of a particular fund, to the order of Mrs. Harris, and is indorsed by her. It is not necessary for the purpose of giving it the character of a bill of exchange that a time should be specified for the payment of the money. Bills of exchange, foreign or inland, may be drawn payable on demand; and a bill in which the time of payment is not expressly specified is, by implication of law, payable on demand: Story on Bills, sec. 50. It is clearly settled that no action at law will lie in favor of the holder of a bill of exchange against the drawee unless he accepts the bill: 2 Story's Eq. Jur. 1043. The research of the counsel for the plaintiff has not enabled me to find a case where it has been held that upon a negotiable bill of exchange the drawee has been made liable in equity to the holder of the bill without his acceptance or assent. Such an instrument gives to the holder no lien upon the funds in the hands of the drawee. It is said by Mr. Chitty, in the first page of his treatise on bills, that a bill of exchange operates as an assignment to the holder of the debt due from the drawee; and the same observation is to be found in several adjudged cases. But the true doctrine will be found stated in Mandeville v. Welch, 5 Wheat. 286. In delivering the opinion of the supreme court of the United States, Mr. Justice Story, in that case, observed, that it had been said "that a bill of exchange is in theory an assignment to the payee of a debt due from the drawee to the drawer. This is undoubtedly true when the bill has been accepted, whether it be drawn on general funds, or a specific fund, and whether the bill be in its own nature negotiable or not; for in such case the acceptor, by his assent, binds and appropriates the funds for the use of the payee. But where

an order is drawn on a general, or on a particular fund for a part only, it does not amount to an assignment of that part, or give a lien on the drawee, unless he consent to an appropriation by an acceptance of the draft."

In Tieman v. Jackson, 5 Pet. 580, an attempt was made to charge the drawee of a bill of exchange with the payment of its amount after it had been protested and dishonored. The circumstances were special. On the day of the date of the bill, the drawer assigned to the drawee for the payment of this bill and others the proceeds of a shipment of tobacco, then on its way, and consigned to the drawee, which the drawee afterwards received and converted into cash. But the drawee being a creditor of the drawer of the bill, had the property attached and sold, and instead of paying the bill applied the proceeds to his own use. It was held that the plaintiff was not entitled to recover. The bill was drawn by Fletcher upon Tieman in favor of Johnson, and the ground of the decision was that, although Tieman was accountable to Fletcher for the proceeds of the cargo, Fletcher could not make him the debtor of Johnson, without his own consent. There was in that case, not only a bill of exchange, but an express assignment of the fund besides; and yet it was held that the action would not lie in favor of the assignee without a promise by the debtor to pay him instead of the original creditor. An attempt was made also in Luff v. Pope, to recover against the drawee of a bill of exchange without acceptance, on the ground, substantially, that the instrument was not a bill of exchange, but intended as an order on a special fund; but the attempt failed. The instrument was in form a bill of exchange. And Mr. Justice Bronson, in the opinion of the court, says: "It would be enough to say that a written instrument which is perfectly plain and explicit on its face can not be changed into something else by any inquiry into extrinsic facts. It must speak for itself." He further said that the debt due from the drawee to the drawer of the bill was a chose in action which could not be transferred so as to give the assignee the right to sue in his own name, except in the form of an accepted bill of exchange.

These were actions at law; but it is said that a different rule prevails in equity, and we are referred to 2 Story's Equity, sec. 1044, to show that the holder of a bill of exchange has an equitable lien on the funds in the hands of the drawee, which may be enforced against him without his acceptance or assent. This is undoubtedly true with respect to drafts on a special fund,