This case discloses a strong and imposing equity in the plaintiff below, and yet he was turned out of court on a mere technical form in the mode of declaring or setting out his cause of action. (His honour here stated the case, pleadings, and amendments offered.)
Some forms are conservative of justice and principle. Such must be pursued. There are others, however, which never answered any other purpose than to cripple legal proceedings, vex and harass suitors, and bring reproach upon the profession. This last class it was the intention of the legislature to brush away with unsparing hand. “A plaintiff shall not be nonsuited for any informality in his statement or declaration filed, but when, in' the opinion of the court, such informality will affect the merits of the cause in controversy, he shall be permitted to amend,” &c. It was probably the intention of the legislature to carry amendments to a greater length than they have been allowed by the courts; and the act of 16th of April, 1846, p. 353, has extended the right to amend to those cases where the courts had refused; but on the same terms as in the original act of 21st March, 1806. On this act the reported decisions are so numerous that it is somewhat difficult to ascertain the precise line where amendments shall be denied- and cease, and where form shall predominate. Like the light and shading of a picture, they run into each other. We think, however, that the leading rule to be extracted from them is, .that when the cause of action is substantially the same, the mode of setting it out may be amended. The nature or form of the action cannot be changed, nor the names of the parties, except in those *257cases which come within the dominion of the act of 1846. Thus, in the action of debt, (which this is,) the statement of the cause of action may be amended, so as to make it fit the facts, if the main lineaments of the first narr. are retained, so as indissolubly to connect the amended declaration in identity with the original cause of action.
This court is of opinion that the plaintiff had a good cause of action ; that the codicil and the will ought to be taken together to make out the gift or legacy to the plaintiff. The codicil refers to the †111, and directs it to be delivered to plaintiff, and to be paid by his executor when due. The amount intended to be given can only be ascertained by the bill or note. The bill is, in fact, the main feature in the gift, and the codicil, or supplementary testament, is inseparably connected with it. The amended declaration only illustrated more clearly the plaintiff’s right to recover in the action of debt on the bill or note and the supplementary testament.
To me it appears that the plaintiff had a right to maintain his action on the bill itself. The testator ordered his executor to deliver it to the plaintiff immediately after, or as soon as possible after his death, and to pay it, to wit, the note or hill, when it became due. For what purpose was it to be delivered ? Why certainly as an evidence of debt. I see nothing to prevent the deceased from charging his estate in this mode. He appears to have written the codicil and will himself, and by his shrewd common sense was prompted to the arrangement. A gift inter vivos must be delivered to make it valid. But actual delivery is not necessary; it is enough that the donee or alienee has possession, with the assent of the grantor or donor. And it has been ruled that whatever would authorize the donee to take possession without committing a trespass, may be regarded as a delivery; Jones v. Blake, 2 Hill’s Ch. Rep. 632. In the case at bar, the deceased having executed the will, directs his agent and executor, who was bound to do it, to deliver it to the plaintiff. And can a man dispose of his whole estate, give it away by his will, and not direct the valid delivery of a single bill, which he had prepared and executed with his own hand for the purpose of being so delivered ? It would seem to me that there ought not to have been any difficulty, and that the codicil or supplementary will and delivery by executor could all have been received in evidence in answer to defendant’s plea, — that the bond or bill had not been delivered. Courts of equity, both in England and the United States, have ruled that bonds left by decedants, without delivery, might be enforced, even where there was no testamentary directions. *258to deliver them; 1 Atkins, 625; 2 Ves. 440; 1 Johns. Ch. 336; 3 Merivale, 269. And the authorities cited by the counsel for the defendant in error would seem rather to strengthen than weaken these cases, because they were founded on notes not under seal, and were adjudged inoperative as donationes mortis causa, for reasons not affecting this case, and invalid as contracts for want of consideration; but the point of non-delivery was not made;' 2 Gill & Johnston, 208; 14 Pick. 198; 10 Conn. Rep. 480. But in the case at bar, the notes or single bills were under seal, which always imports a consideration. It is unnecessary, however, to pursue the case in this aspect, I have indicated the ground on which the court are of opinion that the plaintiff ought to recover, and in this suit. We think the amendment which the plaintiff asked to make in his narr. did not change the original, or introduce any new cause of action, but that it would have remained substantially the same; and that, therefore, it ought to have been allowed.
Judgment reversed, and a venire de novo awarded.