appellee, and our judgment is that it fails to show a reasonable necessity for sending the telegram on Sunday. There is upon this point an utter failure of evidence, for the utmost effect that can be assigned the testimony is that the sending of the message was a matter, not of necessity, but of convenience. For any thing that appears the trains may have been so frequent as to have enabled the appellee to readily accomplish all he desired by sending his message on Monday. It does, in fact, appear that the attorney did get the report in time to go to La Fayette, and have his bill signed. It does not appear that there was any reason why the message was not sent on Saturday; and the clear inference is that on that day the appellee knew when the report would be completed.

The burden is on the appellee to establish an

exception to the general rule prescribed by the statute, and this he cannot do by proving facts showing simply a matter of convenience. His proof, at all events, falls far short of establishing a case of necessity.

Our conclusion upon this point is fully supported by authority. Mueller v. State, 76 Ind. 310; Shaw v. Williams, 87 Ind. 158; Johnson v. Irasburgh, 47 Vt. 28; McGrath v. Merwin, 112 Mass. 467; Connolly v. Boston, 117 Mass. 64. Under the rule laid down in Mueller v. State, supra, the appellee ought to have done on Saturday what he did on Sunday.

Judgment reversed, with instructions to sustain the appellant's motion for a new trial. Petition for rehearing overruled, April 5, 1889.

Franklin M. DREW, Admr., etc.

v.

Mary HAGERTY

....(Maine).23 |·

The gift of a savings bank book from husband to wife, causa mortis, is not valid without delivery, although the book is already in her possession, and his saying to her, "You may have it," or "You may keep it; it is yours,"—is not sufficient to pass the property.

(January 18, 1889.)

defendant's exceptions to the Supreme Judifeina o Phoroscoggin County

Overruled.

NOTE.-Gifts, causa mortis.

To constitute a valid gift causa mortis it is essential that the donor should make it in contemplation of death, either in his last illness or while he is in other imminent peril, and that his death should result from such illness or peril. change Bank, 28 W. Va. 340.

Dickeschied v. Ex

Title to a gift causa mortis passes by delivery, defeasible only in owner's lifetime. Emery v. Clough, 2 New Eng. Rep. 303, 63 N. H. 552.

The validity of a gift causa mortis is to be determined by the law of the place where it is made,

without reference to the donor's domicil. Id.

The donor must part with all dominion over it, so that no further act of his or his personal representative is necessary to vest the title perfectly in the donee, to belong to him presently as his own property, in case the donor should die of his present illness or from the impending peril, without making any change in relation to the gift, leaving the donee surviving him. Dickeschied v. Exchange Bank, 28 W. Va. 340.

The burden of proving a gift of personal property by a decedent is much heavier on the claimant, when the alleged gift is a gift causa mortis than when the gift is one inter vivos. When the gift claimed is a gift causa mortis, it must be proven by strong and clear evidence. Id.; Lewis v. Merritt, 42 Hun, 161.

A certificate of deposit is a subsisting chose in action, and represents the fund it describes, as in cases of notes, bonds and other securities, so that a delivery of it, as a gift, constitutes an equitable assign

See also 13 L. R. A. 714.

This was an action for money had and received, brought by the administrator of Daniel Hagerty, deceased, against Mary Hagerty.

Defendant claimed the property, which was money deposited in a savings bank, under an alleged gift causa mortis of the bank book, made by the intestate on the day of his death. There was a verdict for plaintiff, which defendant moved to set aside, and she also excepted to the charge of the court.

The case sufficiently appears in the opinion. Mr. Frank L. Noble for defendant. Messrs. Newell & Judkins for plaintiff.

Walton, J., delivered the opinion of the court

The most important question is whether the

ment of the money for which it calls. Basket v. Hassell, 107 U. S. 602 (27 L. ed. 500).

The indorsement and delivery of a certificate of deposit, void as a gift mortis causa, is not good as a will of personalty, under the laws of Tennessee, and does not pass the title as such, so as to entitle the donee to a decree for the payment of the money; for a will of personalty in that State does not take effect until probated. Basket v. Hassell, 108 U.S. 267 (27 L. ed. 719).

In Louisiana a donatio mortis causa is an act to and can be made only by will and testament. All take effect when the donor shall no longer exist,

other forms are abrogated. Johnson v. Waters, 111 U. S. 640 (28 L. ed. 547).

Gift of bank book.

A delivery of a savings bank book, with intent to give the donee the deposits represented thereby, was held a good delivery to constitute a complete gift of such deposits. There must be an intention to give, and this must be carried into effect by an actual delivery. Taylor v. Fire Dept. of N. Y. 1 Edw. Ch. 294; Robinson v. Ring, 72 Maine, 149, 39 Am. Rep. 309.

It is not enough, to prove a perfected gift of money to a woman from her husband, that he deposited the money in the savings bank in his name as her trustee. Walker v. Welch (Mass.) 4 New Eng. Rep. 354.

If the depositor intends the money to be at the time of the deposit a gift to such other person, and declares the gift to him, and he assents to it, the gift

gift of a savings bank book from husband to wife, causa mortis, is valid without delivery, provided the book is at the time of the alleged gift already in the possession of the wife.

The action was tried before the Chief Justice, and he ruled that, to constitute a valid gift causa mortis, there must be a delivery; that, if the property "be at the time already in the possession of the donee, the donor's saying to the donee, 'You may have it,' or 'You may keep it; it is yours' does not pass the property in the case of a gift causa mortis."

We think this ruling was correct. If the act of delivery was for no other purpose than to invest the donee with possession, no reason is perceived why it might not be dispensed with when the donee already had possession. But such is not its only purpose. It is essential, in order to distinguish a gift causa mortis from a legacy. Without an act of delivery, an oral disposition of property, in contemplation of death, could be sustained only as a nuncupative will, and in the manner and with the limitations provided for such wills.

Delivery is also important as evidence of deliberation and intention. It is a test of sincerity, and distinguishes idle talk from serious purposes; and it makes fraud and perjury more difficult. Mere words are easily misrepresented. Even the change of an emphasis may make them convey a meaning different from what the speaker intended, Not so of an act of delivery. Like the delivery of a turf, or the delivery of a twig, in the ancient mode of conveying estates, or the delivery of a kernel of corn, or the payment of one cent of the purchase money, to make valid a contract for the sale of a cargo of grain, an act of delivery ac

is perfect, although the depositor keeps the deposit, book himself. Alger v. North End Sav. Bank, 5 New Eng. Rep. 893, 146 Mass. 418; Smith v. Ossipee Valley Ten Cent Sav. Bank (N. H.) 4 New Eng. Rep. 521.

The intestate deposited money in a bank in the name of another. It was held not evidence of gift without evidence of delivery of passbook and acceptance of donee; and upon the question of intent, evidence was admissible to show the depositor's intention was to avoid a rule of the bank providing that one depositor could not draw interest on amount over $1,000. Scott v. Ford, 1 New Eng. Rep. 221, 140 Mass. 157.

A deposit, by a husband, in a savings bank, upon the account of himself and wife, is not evidence of a gift to the wife, he retaining the power to draw the money at will, and in fact drawing the interest upon it on several occasions. Schick v. Grote, 5 Cent. Rep. 826, 42 N. J. Eq. 352.

Where there is no proof of any decisive act or declaration of the intention of the husband to make a gift to his wife, and the bank book was never delivered to her, the evidence fails to sustain a gift. Walker v. Welch (Mass.) 4 New Eng. Rep. 354. See note to Walsh's App. 1 L. R. A. 535, 122.

What necessary to constitute.

To constitute a valid gift inter vivos, there must be a delivery of the thing given, either actual or constructive; but it is not necessary that it be delivered directly to the person intended. It may be delivered to another for him, or to a trustee for the benefit of the donee. Love v. Francis, 5 West. Rep. 53, 63 Mich. 181.

|

complishes that which words alone cannot ac complish.

Gifts causa mortis ought not to be encouraged. They are often sustained by fraud and perjury. It was an attempt to sustain such a gift by fraud and perjury that led to the enactment of the statute for the prevention of fraud and perjury. See Matthews v. Warner, 4 Ves. Jr. 187, 196, note; Leathers v. Greenacre, 53 Maine, 561, 569.

As said in Hatch v. Atkinson, 56 Maine, 326, it is far better that occasionally a gift of this kind should fail than that the rules of law be so relaxed as to encourage fraud and perjury.

We are aware that some text writers have assumed that, when the property is already in the possession of the donee, a delivery is not necessary. But the cases cited in support of the doctrine nearly all relate to gifts inter vivos, and not to gifts causa mortis. A gift inter vivos may be sustained without a distinct act of delivery at the time of the gift, if the property is then in the possession of the donee, and the gift is supported by long acquiescence of the donor, or other entirely satisfactory evidence.

This court so held in Wing v. Merchant, 57 Maine, 383, and the jury were so instructed in this case; and the defendant had the benefit of the instruction.

But the question we are now considering is not whether a gift inter vivos can be sustained without a distinct act of delivery, but whether such a relaxation of the law can be allowed in the case of a gift causa mortis. We think not. Reason and the weight of authority are opposed to such a relaxation. Hatch v. Atkinson, 56 Maine, 326; Lane v. Lane, 76 Maine, 521; Parcher v. Sav. Inst. 78 Maine, 470, 3 New Eng.

to a third person, with authority to deliver it to the donee, such third person, until the authority is executed by an actual delivery to and acceptance by the donee, is the agent of the donor, who, until such actual delivery is made, may revoke the authority and take back the gift. Dickeschied v. Exchange Bank, 28 W. Va. 341.

Whether a direction from the donor to a bailee to deliver it to donee consummates the gift, unless the order be executed,-quare. Vogel v. Gast, 2 West. Rep. 418, 20 Mo. App. 104.

Where a party claims title to personal property as a gift, either inter vivos or causa mortis, the burden of proof, in whatever form the issue may be presented, rests upon him to establish the validity of the gift, of which the delivery of possession is the strongest and most material. Dickeschied v. Exchange Bank, 28 W. Va. 341.

The mere possession of the subject of the alleged gift, unaccompanied by proof of its delivery by the donor to the donee, is insufficient to establish it as a gift either inter vivos or causa mortis. ld.

A widow seeking to establish a gift to her from her husband in his lifetime must adduce evidence beyond suspicion showing a clear irrevocable gift. Schick v. Grote, 5 Cent. Rep. 826, 42 N. J. Eq. 352.

In order to render a gift of money by a grandmother to the children and the father as their trustee effectual for any purpse, it is not only necessary to show an intention to give, but also an actual delivery of the thing given-there must be a parting with the possession and all control over the property by the donor and a vesting of the possession in the donee or a third person in trust for the donee. Minchin v. Merrill, 2 Edw. Ch. 337; Hooper v. Goodwin, 1 Swanst. 486; Gaskell v. Gaskell, 2 Younge &

See also 12 L. R. A. 506.

In support of the position that the jurisdictional limit as to amount in a general statute applies as well to suits brought by the Government as by individuals, they cite the following authorities: U. 8. v. Hill, 123 U. S. 681 [31 L. ed. 275]; Walker v. U. S. 71 U. S. 4 Wall. 163 [18 L. ed. 319]; Ross v. Prentiss, 44 U. S. 3 How. 771 [11 L. ed. 824]; Gruner v. U. S. 52 U. S. 11 How. 163 [13 L. ed. 647].

There can be no doubt that the authorities cited by defendants' counsel are controlling in settlement of the questions they treat; but they are not applicable to the case at bar.

In the first place it is far from clear that the jurisdiction expressly conferred by the Act of March 3, 1887, where the United States is plaintiff or petitioner is limited in any sense by the amount in controversy. If we turn to the Act of March 3, 1875, of which this Act is an amendment, we will find that the limitation as to amount precedes the clauses conferring jurisdiction over the special subjects therein defined in the following order:

It recites first that the circuit court shall have jurisdiction of all suits of a civil nature at common law or in equity "where the matter in dispute exceeds, exclusive of costs, the sum or value of $500;" then follow specifications of the subject matters, to wit: federal questions "or" Government suits "or" citizenship "or" land grants "or" suits of aliens.

It appears, then, that in the Act of 1875 the grammatical structure of the section required that the limitation as to amount should apply to each class of suits specified.

But the structure of the section as amended by the Act of March 3, 1887, is very different. This Act recites that the circuit court shall have jurisdiction of all suits of a civil nature at common law or in equity "where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the Constitution,” etc., "or" "in which the United States are plaintiffs or petitioners,' ," "or" "in which there shall be a controversy between citizens of different States in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid," "or" land grants, "or" suits of aliens where the matter in dispute exceeds, etc. By repeating the limitation clause as to amount after each class save one, and omitting it after the clause conferring jurisdiction over government suits, Congress evidently intended to remove the doubt which might have been evoked by the language of the Act of 1875, and to make it plain that the Government could sue in the circuit court without regard to the amount in controversy. The same reasoning would inevitably induce the conclusion that the limitation as to amount does not apply to land grant suits were it not for another provision in a different section of the Act in regard to land grant suits, which it is unnecessary to discuss here. See Speer, Removal of Causes, § 21.

Again, if we look to the Judiciary Act of 1789 as codified in section 629, Revised Statutes, we find that ample provision was made for suits by the Government. Thus it was provided that where the United States is plaintiff or petitioner, the circuit court shall have jurisdiction of all suits at common law without regard to amount, and of all suits in equity

where the matter in dispute, exclusive of interest and costs, exceeds the sum or value of $500. Subsections 2, 3, § 629, Rev. Stat.

And besides these provisions, there is a separate and independent clause granting jurisdiction, without regard to amount, of all suits at law or in equity arising under the Revenue Laws, excepting suits for penalties and forfeiture, and excepting admiralty causes, and of all causes of action arising under the Internal Revenue Laws or under the Postal Laws. Subsection 4, § 629, Rev. Stat.

As the law then existed, there can be no doubt that the Government could have maintained a suit, either at common law or in equity, arising under the Revenue, Internal Revenue or Postal Laws, without regard to amount, under the express provisions of subdivision 4, and wholly independent of the jurisdiction granted or limitation as to amount contained in subdivisions 2 and 3 of section 629, Revised Statutes.

Therefore, whether the provision in the Act of March 3, 1887, giving jurisdiction of all suits of a civil nature at common law or in equity in which the United States is plaintif or petitioner, enlarges the jurisdiction by removing the limitation as to amount in equity causes, to wit: $500; or whether the provision raised the limitation as to amount to $2,000, both in common law and in equity suits brought by the Government-in either case the provision embraced only the subject matter contained in subdivisions 2 and 3 of section 629, Revised Statutes, viz.: suits at law or in equity in which the United States is plaintiff or petitioner. It could not, therefore, be held to repeal by implication the jurisdiction over the special subject matter provided for by subdivision 4 of the same section, to wit: postal suits, etc. Hess v. Reynolds, 113 U. S. 73 [28 L. ed. 927]; Venable v. Richards, 105 U. S. 636 [26 L. ed. 1196].

Again; when we look to the provisions of the Constitution, the Judiciary Act of 1789, the subsequent amendatory statutes, the Acts organizing the court of claims and many other statutes bearing upon the question, we find a settled policy on the part of the United States to have its controversies determined in its own courts, a policy founded upon sound and substantial reasons, vital to its governmental powers. The right once attached becomes a prerogative of the Government, and an Act of Congress will not be construed to surrender such right "except by special and particular words." Jones v. U. §. 1 Ct. Cl. 383.

It was insisted in the argument for defendants that the district court is, by section 563, Revised Statutes, given jurisdiction of all suits at common law brought by the United States, and of ail causes of action arising under the Postal Laws, without regard to the amount in controversy; and that Congress may well be presumed to have intended by the Act of March 3, 1887, to relieve the circuit court of such cases. It is undoubtedly true, if it be conceded that the right of the Government to sue must be expressly conferred, and that the Act of March 5, 1887, raised the jurisdictional limit as to amount in all government suits in the circuit court to $2,000, that there would be a very large class of suits in equity over which neither the cir cuit nor the district courts would have juris

Could it have been the intention of Congress to repeal the pre-existing laws upon this subject by implication, and force the government to relinquish all rights or sue in the state courts in so large a class of cases, or in any case? This court can never concede such a proposition. Congress will not be presumed to have intended to deprive the Government of such a right unless the intention is expressed in plain and unequivocal words.

to government suits would devest the public of rights and violate a principle of public policy, and would make provisions contrary to the policy which the Government has indicated by many Acts of previous legislation-in such case the statute ought not to be construed to impair the settled prerogatives of the Government. U. S. v. Knight, supra.

It follows, therefore, if there is any doubt as to whether the limitation as to amount in the Act of March 3, 1887, was intended to apply to suits brought by the Government, it ought to be construed not to apply.

"Where an Act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such Act though not particularly named therein. But where a statute is general and thereby any prerogative, right, title or interest is devested or taken from the King, in such case he shall not be bound unless the statute is made, by express words, to extend to him." Bacon, Abridgment, title, Prerogative, E-5; U. S. v. Knight, 39 U. S. 14 Pet. 301 [10 L. ed. 465]; Fink v. O'Neil, 106 U. S. 272 [27 L. ed. 196]; Green v. U. S. 76 U. S. 9 Wall. 655 [19 L. ed. 806]; U. S. v. Herron, 87 U. S. 20 Wall. 251 [22 L. ed. 275]; Dollar Sav. Bank v. U. S. 86 U. S. 19 Wall. 228 [22 L. ed. 80].

The principle involved in these propositions

preserved, and for which an individual under similar circumstances could maintain an ordinary civil action, the United States may maintain its rights by such a suit brought in its own name at least in some court. U. S. v. Barker, 1 Paine, C. C. 156.

And this court is of the opinion that when the Government has definitely acquired the right to sue in any of its courts exercising general judicial power, this right will be held permanent in its character and be maintained, subject only to such express and distinct limitations as Congress may thereafter impose.

Such right is not affected by implication, save in those general statutes regulating procedure which do not devest the public of any right and do not violate any principle of public policy. The demurrer is overruled.

THE IMPERIAL and THE S. G. REED ; The Albina Ferry Co., Libelant.

(....Sawy..... Fed. Rep.....)

from her anchorage in the Wallamet River

to a dock in East Portland, under the direction and control of the pilot in charge of the ship, is not liable for injury caused by a collision of such vessel with another; in such case the tug and tow are but one vessel and that one is the tow.

* Head notes by DEADY, J.

the Wallamet River by the ferry boat of the

tow.

The tug and its tow are treated as one vessel, a steam vessel, within the rule of keeping out of the way of sail vessels, under the rules of navigation, the sail vessel to keep her course. Desty, Ship & Adm. § 379, citing: The J. H. Gautier, 5 Ben. 469; 11 Am. L. Reg. N. S. 769; 5 Am. L. T. 87; The Ivanhoe, 7 Ben. 213; The Nabob, 1 Brown, Adm. 115; The America, 2 Ben. 475.

So, as to the duty of keeping or changing course, sailing vessels in tow of steam tugs are to be considered as steam vessels. The Pennsylvania, 3 Ben. 215.

The Syracuse, 79 U. S. 12 Wall. 167 (20 L. ed. 382); The Frank Moffat, 2 Flipp, 291; The Doris Eckhoff, 32 Fed. Rep. 555.

The responsibility is determined by inquiring which vessel was the principal and which the servant. The Doris Eckhoff, supra; The Alabama, 1 Ben. 476; The Sampson, 3 Wall. Jr. 14.

That both may be held liable, see

The R. B. Forbes, 1 Sprague, 328, 1 Cliff, 331; The Coleman and Foster, 1 Brown, Adm, 456, 459; Sproul v. Hemmingway, 14 Pick. 1.

The tow is bound to prevent a collision if she can. The Morton, 1 Brown, Adm. 140; Heckscher v. McCrea, 24 Wend. 304; Taylor v. Read, 4 Paige, 581; Emerson v. Howland, 1 Mason, 45; Miller v. Mariner's Church, 7 Maine, 51.