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TMI Blog1869 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... and identified by the plaintiff. The gift was one which, in my opinion, cannot be governed by the strict principles of English Law, the parties to the transaction being Hindus. I am not convinced that in fact the deceased contemplated deaths or that he intended the gift to be conditional upon his decease, for if the evidence of the plaintiff is believed, his father, on being asked to endorse the Notes, said: "As soon as I get a little better, I" will sign them; what cause have you for being anxious, seeing I have "given them in the presence of so respectable a man as Dr. Baillie, and ' in the presence of my worshipful mother." From this it appears that the deceased manifested some hope of recovery and an intention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the English Statue of Frauds. But assuming that this was intended as a gift inter vivos, end not as a donatio mortis causa, I am of opinion that according to Hindu law, the gift was valid; and that the debt and interest secured by the Government Notes, and not the mere papers, were given. The Statute of Frauds is not applicable to Hindus, and a conveyance may be made verbally without deed and without writing. The distinction which has been made between trusts created by donatio mortis causa and gifts inter vivos that the one is a trust created by operation of law, and the other one to which the Statute of Frauds applies (as to which see Duffield v. Elwes 1 Bligh. N.S. 639 (530) : 1 Sim. and S. 239) is not applicable to cases between Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in his own name, it is clear that the donor, if he had lived, or his representatives after his death, could not at law have compelled the plaintiff to return the Government Papers; and if they could not have compelled the donee to return the Notes, and could not have compelled payment of the Notes without producing them, the effect would be that Government would not have to pay either the donor or the donee, unless some course were open in equity for one party or the other. I doubt whether equity could order the donee to return the Notes. In the case of a bond given as a donatio mortis causa. Lord Hardwieke held that the donee might cancel, burn, or destroy the bond.--Ward v. Turner 1 Wh. and Tu. L. C. 721. If he could cancel a bond, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bond and a Bill of Exchange and a Promissory Note are all chooses in action. A bond under English law cannot be assigned so as to give the assignee a right to sue at law, in his own name, but the endorsee of a Bill of Exchange or Promissory Note, according to the Law Merchant in the one case, and the Statute of Anne in the other, may each sue in his own name. Both Bills of Exchange and Promissory Notes may be pledged by delivery as security without endorsement, and such pledge gives an equitable lien on the debt secured by the bills and notes and not merely an equitable right to hold the paper. A transfer by deed and delivery of Government Paper would, in my opinion, in the case of Europeans, constitute the relationship of trustee and cestu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk that the decree of Mr. Justice Phear should be affirmed with the amendments proposed. But I am inclined to treat what occurred as amounting to a nuncupative will as to these Government Papers. Raja Apurva Krishna evidently had the matter in his mind for some time, and it appears to me that although he meant to retain the Papers during his own life, he wished to see them actually in the plaintiff's hands before be died. My opinion is, that what Raja Apurva Krishna did was done by him in immediate contemplation of death. The plaintiff says, that some few days previously his father spoke to him about his having made a will. At the time he gave his son the Government Papers, he had been long ill, and was, in fact, in great danger; and Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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