findings in fact to the effect above detailed) found in point of law-"That owing to the pursuer's illness, and consequent inability to discharge his duties as the defender's shopman for a period of two months during the busiest time in the seed trade, the defender was entitled to engage another shopman in the pursuer's place, and to hold his agreement with the pursuer as at an end, and that he is not liable in damages to the pursuer: Therefore assoilzies the defender from the conclusions of the libel, &c.

"Note-The pursuer of this action sues for £75 in name of damages on the ground that he was wrongfully dismissed from the defender's service, and in support of his claim he maintains that he was engaged as a yearly servant, and having received no warning prior to the expiry of the first period of twelve months, tacit relocation must be held to have taken place. Had it been necessary for the decision of the case the SheriffSubstitute's opinion upon this point would not have been favourable to the pursuer, for although the pursuer was no doubt engaged at a salary of £55 per annum, no definite period was fixed for the duration of the engagement, and that being so, it appears to the Sheriff-Substitute, looking to the nature of the situation, that the contract subsisted merely during the pleasure of both parties, and was terminable by reasonable notice upon either side, or by payment of a money equivalent corresponding to and in lieu of such notice (see Robson v. Overend, 1879, 6 R. 213).

"But it is unnecessary to consider this matter if the Sheriff-Substitute is right in holding that in consequence of the pursuer's inability to discharge his duties the defender was liberated from his engagement, and entitled to treat the contract as at an end. The question as to what is sufficient in such a case to release either of the parties from their mutual obligations is of course one of circumstances. Professor Bell observes that sickness or inevitable accident, though not incurred in the master's service, will excuse non-performance for a short time; but if the inability should continue long, and a substitute should be required, the master will be discharged from his counter obligation to pay wages' (Prin., sec. 179).

"In treating of the same subject Lord Fraser says that the servant's sickness, besides relieving him from his obligation to serve, operates also as a release to the master, provided the disablement be such as to prevent the servant from fulfilling his part of the contract' (Fraser on Master and Servant, 3rd edit. 1882, p. 320). The learned author then cites Baron Bramwell's opinion in the case of Robinson v. Davison, 1871, L.R. 6 Ex. 269, and goes on to say 'So in America, serious illness on the part of the servant, although a sufficient justification to enable him to recover for the services actually rendered, nevertheless absolves the master from the contract, so that he is not obliged to receive the servant back into his employ. It releases both from their mutual obligations. The master is not bound to wait unreasonably for the restoration of his servant's health, and his necessities may well be regarded as the measure of what is reasonable' (Wood on Master and Servant, sec. 120, 233; also Poussard v. Spiers & Pond, 1876, 1 Q. B. Div. 410). Upon the same principle it has been held in America, in a case in which

the law upon the subject was very fully considered, that the servant's imprisonment, even although without fault on his part, may, like his sickness, liberate the master from his engagementLeopold v. Salkey, 1878, 31 Am. Rep. 93, cited in Fraser, 3rd edit. p. 322. In that case the plaintiff agreed in writing to serve the defendant for three years as superintendent and manager of his manufactory of clothing, and to devote his whole time, attention, and skill thereto, and the defendant agreed to pay him therefor 3000 dollars a-year. The plaintiff, without fault on

his part, was arrested and kept in jail for about a fortnight during the busiest season, and the defendant hired another person in his place. On being released the plaintiff tendered his services, which were refused. He had been paid in full for the time he actually worked. It was held that he could not maintain an action of damages for breach of the agreement, and Scholfied, J., observed- Where neither party is at fault, the absence of the servant from the master's employ without his consent (by whatever cause occasioned) for an unreasonable length of time, we are of opinion, authorises the master to treat the contract as abandoned, and what in such cases is an unreasonable length of time depends upon the nature and necessities of the business in which the servant is employed.'

"In the present instance the pursuer discharged his duties as the defender's shopman, and was paid his wages down to Saturday the 29th of November 1884. On the 30th of November he was taken ill of scarlet fever, and on the following day (1st December) was removed from his lodgings to the Royal Infirmary, whence he sent a post-card to the defender about a week afterwards, informing him that he would not be able to leave the hospital for six weeks.

"It is in evidence, and it is not matter of dispute, that the busiest time of the year in the seed trade is from the beginning of December until about the middle of March, and both the defender and his nephew Charles Downie state that it would have been impossible to have carried on the business of the shop in the pursuer's absence without engaging a man in his place. Accordingly, on the 9th of December the defender wrote to the pursuer's father a letter in which he says-[His Lordship here quoted the defender's letter ut supra).

"On the same day (9th December 1884) the defender's nephew Charles Downie wrote to pursuer informing him that a substitute had been engaged in his place, but that when he felt well enough to begin work again an endeavour would be made to find another situation for him-[His Lordship here quoted Charles Downie's letter ut supra].

The pursuer remained a patient in the Royal Infirmary from the 1st of December 1884 until the 19th of January 1885. after which he was in the Convalescent House till the 28th of January, so that he was incapacitated from discharging his duty for upwards of eight weeks during the busiest season of the year. In these circumstances it appears to the Sheriff-Substitute that the defender was quite justified in treating the contract between him and the pursuer as at an end, and engaging another shopman in the pursuer's place. It is true that the pursuer's inability to perform his duty arose from no fault

upon his part, and he could not be held liable in damages to the defender for non-performance; but on the other hand there was just as little fault on the part of the defender, who was compelled by the necessity of the case to employ another man, and there cannot be one law for the servant and another for his employer.

"On behalf of the pursuer reference was made to the case of White v. Baillie, 1794, M. 10, 147, where a farmer was found liable to a servant for a year's wages, although the servant had been disabled for work by sickness during eleven weeks. But Lord Fraser observes (Master and Servant, 3d edit. p. 142) that this case is not of high authority,' as it was apparently decided upon special grounds, and, according to the report, without laying down any general rule' upon the subject, while the Court was influenced by the circumstances that the employer had not found it necessary to hire a substitute during the servant's illness. The pursuer also referred to the obiter dictum of Lord Meadowbank in the case of Maclean v. Fyfe, February 4, 1813, F.C., that it was shameful in any master to say that he was entitled to compensation for a period of sickness during which his servant was incapacitated from labour.' The question here, however, is not whether the defender is entitled to claim compensation, or to deduct any part of the pursuer's wages on account of his illness, but whether he is to be held liable in damages for wrongous dismissal. In any case, however, Lord Meadowbank's dictum in the case cited was, as Lord Fraser points out ('Master and Servant,' 3d edit. p. 142), unnecessary to the decision of the case before him, and though highly creditable to his Lordship's humanity, cannot be taken, and possibly was not intended, as a statement of the law of Scotland upon this point' (i.e., the right of a servant to wages during sickness).

"On the whole matter, the Sheriff-Substitute is of opinion that the pursuer's claim of damages is unfounded; but he may add that even if he had arrived at a different conclusion he thinks that the sum sued for (£75) is quite extravagant. No evidence has been adduced to show that the pursuer has sustained or could sustain loss to anything like that amount, and no explanation has been given of what the claim consists."

The pursuer appealed to the Court of Session, and argued -The question as to whether or not a servant's illness justifies his master in dismissing him is necessarily one of circumstances. There was no absolute rule. Bell (Principles,section 179) lays downthat sickness "will excuse non-performance for a short time; but if the inability should continue long and a substitute be required the master will be discharged from his counter-obligation to pay wages." Of course there were cases such as Poussard v. Speirs & Pond, April 25, 1876, L. R. 1 Q. B. Div. 410, where time is so much of the essence of the contract that the servant's failure even for a few days will entitle the master to dismiss him. But this was not one of them. There was here disclosed a case of wrongous and oppressive dismissal-Ersk. Inst. iii. 3, 16; Fraser's Master and Servant, 322; Leopold v. Sankey, Sept. 1878, 31 American Rep. 93; White v Baillie, Nov. 29, 1794, M. 10,147; K. v. Baschen and Another, Jan. 22, 1878, 38 L.T. 38; Maclean v. Fyffe, Feb. 4, 1813, F.C.

The defender replied-Under the circumstances

LORD JUSTICE-CLERK-This case raises an important question in the relationship of master and servant. The defender is a seedsman, and In engaged the pursuer as his second shopman. November the pursuer became ill from scarlet fever, and he was prevented from coming back to his work till the end of January, and ever then he was not perfectly recovered. In the meantime, it being, as the defender says and has proved, the busy time of the year, he found it impossible to keep the place vacant, and engaged another man in room of the pursuer, giving him notice of the fact, and also offering to do his best to find another place for him when he was perfectly recovered. It was two months from the time he was taken ill before he was fit for work, and in the meantime, as a successor had been appointed to him, the defender declined to take him back, although, as I have said, he made him kind and sufficient offers which were foolishly rejected.

Questions were raised as to whether he had had sufficient notice, but I think on the facts this need not be considered. The main question then which arises is, whether the two months' absence from work was a breach of the contract? I am of opinion that it was, because continuance of service is the essence of the contract, and though perhaps it was hard on the pursuer, yet as for two months he had to be absent from service, his master was entitled to consider it at an end. It is quite true it was no fault of the pursuer's that he was unable to discharge his obligation under the contract, but still the counterpart of the defender's obligation was the pursuer's attendance at the shop and the services for which his employer bargained, and if these were not fulfilled then there was a breach of the contract. There is, I think, no doubt that a court of law will give redress against a tyrannical and extravagant use of such a principle, but still that is the principle which governs the matter. There the defender did all he could possibly be asked to do when he offered to take the pursuer back on his recovery. I have read the correspondence and I think it is an unfortunate one. I think the defender showed a kindly spirit in his offers, and they should have been accepted. They were not, however, accepted, and therefore I come to the conclusion that the contract was broken by the pursuer by the non-rendering of his services for a protracted period. Two cases were referred to, but they have little or no bearing on this case. The first was White v. Baillie [sup. cit.], in which a farmer was found liable to a farm servant for a year's wages although the latter was absent from work during eleven weeks. But the question there raised was quite different. Farm servants in old days were to a large extent fixtures on the soil. They were difficult to obtain, and generally remained where they began service. The question was whether

the master could deduct wages for the eleven weeks' absence. He had taken the servant back, and the Court held that he must stand by the bargain. Lord Fraser says it is hardly to be followed as an authority, but I do not know, and perhaps if the same question were to arise the same decision might be given. The second case of MacLean v. Fyffe is important for Lord Meadowbank's dictum, quoted by the SheriffSubstitute. It is not right for a master to act on every case of a servant's sickness, but where it is absolutely indispensable to have a successor absence is a breach of contract.

LORD CRAIGHILL-I agree with your Lordship's view of the facts and of the law of the case. The important question doubtless is, whether or not the pursuer's absence amounted to a breach of the contract to remain in the defender's service. It is another question altogether whether or not the pursuer was entitled to such notice of the termination of his contract as a yearly servant in ordinary circumstances is entitled to. If our view of the facts is correct then there is no need to consider it.

LORD KINNEAR concurred.

LORD YOUNG and LORD RUTHERFURD CLARK were absent.

The Court dismissed the appeal and affirmed the judgment of the Sheriff-Substitute.

Counsel for Pursuer A. J. Young-Orr. Agents-W. Adam & Winchester, S.S. C.

Counsel for Defender -- Dickson-Shennan. Agents-Nisbet & Mathison, S.S.C.

Saturday, June 13.

SECOND DIVISION.

[Lord M'Laren, Ordinary. LOGAN'S TRUSTEES V. REID. Agent and Client Gift by Client to Agent— Private Box at Theatre-Confirmation after Relationship Ceased.

Held (diss. Lord Justice-Clerk) that a gift of a private box at a theatre by a client to his law-agent while that relationship was subsisting, was reducible by the heirs of the donor as a gift between agent and client, notwithstanding that the gift had been enjoyed by the donee for five years after the relationship had ceased, without the donor making any challenge of it.

In 1874 William Reid, W.S., was employed by William Hugh Logan, Edinburgh, as his law-agent, and continued his agent till 1877, when the agency ceased. In 1874 Mr Logan acquired the Theatre Royal, Edinburgh, which he sold to the Edinburgh Theatre Royal Company (Limited), under a reservation to himself of two private boxes in the theatre for his sole and exclusive use. On the 4th February 1876 he assigned to Mr Reid, and his heirs, successors and assignees, the sole and exclusive right of admission to one of these private boxes. The deed was prepared by Mr Reid, no other agent being consulted in the matter, and

no value (apart from Mr Reid's past services) was given therefor. It bore to be granted "for certain good causes and considerations." While Mr Reid was Mr Logan's agent, other agents occasionally acted for him in particular matters. Mr Reid's successor as Logan's agent was Mr Officer, S.S. C., who acted till Mr Logan's death. Mr Logan was aware that he had power to revoke the gift, and from time to time expressed to various persons, Mr Officer amongst the number, his intention to do so. He never expressed to Mr Reid any intention of revoking the gift, and Mr Reid by himself and his friends used the box till Logan's death in December 1882, and thereafter until the then existing theatre was burned in June 1884. Logan attended the theatre and took part in its business as joint-lessee with Mr J. B. Howard up to within three weeks of his death, and he saw Mr Reid using the box. The gift was never challenged till November 1884, when Logan's trustees executed a deed of revocation recalling the gift. Thereafter they brought this action to reduce the assignation.

It was admitted that the box had a substantial value, but the parties differed as to the precise or approximate amount thereof.

The pursuers explained the grounds on which Logan himself took no steps to reduce the gift, notwithstanding his intention to do so, to be, (1) financial difficulties, (2) that his health was feeble, (3) that his mind was much occupied with a litigation in which he was engaged (and in which another agent acted), and with a dissolution of partnership with a co-lessee.

They pleaded-“(1) The said gift having been made by a client to his law-agent while that relationship subsisted between them, the same is null and void, and the pursuers are entitled to decree as concluded for. (2) The said William Hugh Logan was not precluded from recalling the said gift during his lifetime, in respect (1st) that it was null and void ab initio, and could be recalled by him at any time; and (2d) that there was not, in the circumstances, any acquiescence on his part, or any confirmation by him of the rights thereby conferred on the defender. (3) The said assignation being null and void and revocable, the pursuers are entitled to decree in terms of the summons.

The defender pleaded-"(1) The statements of the pursuer are irrelevant and insufficient in law to support the conclusions of the summons. (3) Separatim, The said assignation having been acquiesced in, and acknowledged and confirmed by Mr Logan during the period after the relation of agent had ceased between him and the defender, and remaining unrevoked at his death, the present pursuers have no right to revoke the same, and the defender should be assoilzied."

The Lord Ordinary (M'LAREN), after the facts already stated had been established by proof and admission in a joint - minute, pronounced this interlocutor-"Finds that the assignation libelled was a gift by the deceased William Hugh Logan to his agent, the defender, during the subsistence of the relation of agent and client, and that the same was not confirmed by the granter after the termination of such relation: Therefore reduces, decerns, and declares conform to the first conclusion of the summons.

"Note. This action is instituted by the testa

v.

mentary trustees of the deceased Mr Logan, sometime proprietor of the Theatre Royal, Edinburgh, against Mr Reid, Writer to the Signet, for the reduction of a gift by Mr Logan to Mr Reid of the perpetual right to the use of a private box in that theatre.

"Mr Logan on 23rd November 1875 sold the theatre to a limited company, under reservation of the exclusive right to two private boxes. On 4th February 1876 Mr Reid, without any valuable consideration, acquired one of these private boxes from Mr Logan. By the first article of the minute of admissions it is ascertained that the relation of agent and client existed at the time of the gift, and I therefore find that the assignation libelled is reducible as a gift by a client to his agent during the subsistence of that relation. In a recent case I gave reasons for the opinion that all such gifts are reducible, and that the objection is not to be overcome by evidence that the gift was unsolicited. The case was taken to the Inner House, and the judgment affirmed. therefore do not enter further on this topic.

I

"In the present case the defender contends that the case ought to be regarded as one in which the gift was confirmed after the relation of agent and client had ceased. It appears that the defender ceased to act as the agent for Mr Logan individually in August 1877, but continued to act for the company to which Mr Logan sold the theatre, and in which he retained a small interest.

"The defender in 1877 rendered some trifling services to Mr Logan as law-agent, but in this question I think these services should be left out of account. There is thus an interval of five years from the cessation of the individual agency to Mr Logan's death on 22d December 1882. This is an element so far favourable to the defender's contention. But in my opinion the mere lapse of time does not amount to confirmation so as to bar the right of challenge of the gift. I do not think that express confirmation by deed or writing is necessary to raise such a bar. There may be virtual confirmation by acts which are inconsistent with the supposition that the granter stood upon his right of challenge. In the present case, however, there are no such acts except that Mr Logan was in the habit of going to the theatre, where he saw the defender or his friends occupying the box in question. The defender thinks that Mr Logan was pleased to see him making use of the privilege, but appearances are some times deceptive, and according to the evidence of Mr Mair, Mr Logan all the time entertained the design of reducing his gift as soon as his affairs were in a prosperous condition. Ultimately his health was such as to indispose him for engaging in litigation, but he never expressed any different opinion as to the defender's right to the box from that which he had indicated to Mr Mair. In these circumstances I am of opinion that Mr Logan's representatives are entitled to exercise his right to rescind."

[The decision referred to by his Lordship in the foregoing note was that in Anderson v. Turner, July 16, 1884 (not reported), in which his Lordship stated the law as follows-"I think there are very strong reasons for maintaining and strictly applying the rule that disables a solicitor from accepting a gift from his client while the

relation of agent and client subsists. According to the settled current of authority in England such a gift is void under all circumstances, and the agent will not, as in the case of a purchase of the client's estate, be allowed to support the gift by evidence that the gift was obtained without fraud or improper solicitation. It is not very

clear on the authorities whether the rule has been accepted in Scotland in so absolute a sense. The authorities are, as I apprehend, not opposed to the acceptance of the rule as established in England, and on such a subject I should certainly not be disposed to assist in introducing a new distinction between the doctrines of the English and Scottish Courts. For this reason, and because the rule appears to me to be well founded, I am prepared to hold that the assignation and back-letter in question are null on the sole ground that these writings constitute a gift to an agent while the relation of agent and client was subsisting. I think it very much better for solicitors themselves that all such gifts should be cut down by the operation of a uniform rule than that each case should be considered on its merits. In the case of a purchase by a solicitor from a client it may very well be that the transaction is advantageous to both parties-the one party wants money, the other wants an investment-and what the Court inquires into is the fairness of the transaction. But a gift can never be advanvantageous to the donor (in the legal sense), and one cannot predicate fairness or unfairness regarding it. There is therefore no true analogy between the case of a gift and that of a purchase to which the defender naturally seeks to assimilate his case." In that action the Second Division on 16th July 1884 adhered to the interlocutor of the Lord Ordinary reducing the transaction there in question as a gift of the client to the agent while the relationship was subsisting.]

The defender reclaimed, and argued-The Lord Ordinary was wrong in holding that such a gift as the present was an absolute nullity. It was only revocable in the option of the donor. Here the donor knew that he had a power of revocation, but he never exercised it. After the relationship of agent and client had ceased he showed his "fixed, deliberate, and unbiassed determination"-Wright v. Vanderplank, March 1856, 8 De Jex, Macnaughton & Gordon's Rep. 133-that he meant to abide by the gift. He saw the donee constantly using the box, and never made the smallest intimation to the latter that he intended to revoke the gift. This lasted for five years from the cessation of the agency till the donor's death. In Mitchell and Another v. Humfray, March 22, 1881, L. R., 8 Q. B. Div. 587, it was held that though a gift to a person in a confidential relation to the donor, e.g., to a physician from his patient, may be voidable, yet if after the confidential relation has ceased to exist the donor elects to abide by the gift, and does so, it cannot be impeached after his death if it is not proved that the donor was aware that the gift was voidable at his election. In Long v. Taylor, June 8, 1821, 1 S. 57 (N.E.) 59, there was the element of fraud. That element also existed in Anstruther v. Wilkie, Jan. 31, 1856, 18 D. 405. See also York Buildings Company v. Taylor, 1 S. 57, aff. 2 Sh. Ap. 252. there was no fraud whatever.

Here

The pursuers replied-It was settled in the law

of Scotland, as in that of England, that all such gifts were absolutely null and void as being contrary to public policy-Snell's Equity, 480; Tomson v. Judge, June 1855, 3 Drewry's Rep. 306; Anstruther v. Wilkie, supra. It was true that lapse of time without challenge might be favourable to the idea of confirmation and to a plea in bar of reduction of the gift, but it might be explained -Walmersley v. Booth, June 29, 1739, 2 Aikin's Rep. 25; Morse v. Royal, March 1806, 12 Vesey's Rep. 355; Gresley v. Mousley, April 1859, 4 De Jex & Jones' Rep. 78 (L.J. Turner, 78); Champion v. Rigby, May 20, 1830, 1 Russell & Mylne, 539. Here the donor expressed his intention repeatedly to revoke the gift, and had he lived longer he would have done so.

At advising

LORD CRAIGHILL-The pursuers of this action are the testamentary trustees of the late William Hugh Logan, sometime proprietor of the Theatre Royal, Edinburgh, who died in September 1882. The defender is Mr William Reid, Writer to the Signet, Edinburgh.

What has given rise to this action is an assignation or conveyance to the defender by Mr Logan on 4th February 1876 of a private box in the Theatre Royal. When this conveyance was granted Mr Reid was the law-agent of Mr Logan. He had been so from June 1874, and he so continued till November 1877. At the latter date the connection of agent and client between them came to an end and never was renewed.

The box of the theatre so conveyed to Mr Reid has been used by him, and by friends of his upon his order, from the time when the right referred to was acquired till the institution of the present action, and there never was in that period any intimation made to Mr Reid that the assignation which had been granted was to be challenged. The present action, however, has been instituted to set it aside, on the ground that it was a gift or donation by a client to his law-agent when the relationship of agent and client existed between the parties to the transaction, and upon this ground the deed by which the gift or donation was effected has been reduced by the Lord Ordinary.

The

The first question in a case like the present is, Was the right given as a gift or donation? assignation challenged does not so describe the transaction. What it says is that the conveyance was given for certain good causes and considerations, the nature or number of these not being explained. All difficulty, however, on this head has been obviated by an admission on the part of the defender to the effect that what he got was given and received as a gift or donation, for which no consideration of any kind was ever rendered to Mr Logan. The value of the gift is uncertain, for the views of parties on that subject are not in harmony, but both, as the minute of admission shows, are agreed that "the box has a substantial value."

Things being as I have now related, I concur with the Lord Ordinary in holding that the conveyance was a nullity. By this I do not mean that it could not be set up by conduct on the part of the donor subsequent to the time when the relationship of client and agent between him and Mr Reid was closed. What I mean is that the deed by itself will not support the gift, and must be

All

held to be ineffectual, unless the defender shall show that it was validated by something which occurred subsequent to the time when Mr Reid ceased to be the agent of Mr Logan. Has this been shown? The Lord Ordinary has found the contrary. For his interlocutor bears that the assignation was not confirmed by the granter after the termination of such relations, and I agree in this also with the Lord Ordinary. that can be referred to by the defender to support his contention is really the mere lapse of time without challenge, which no doubt was very considerable, extending from November 1877 to December 1882. But lapse of time is not enough by itself in a case like the present. The question is not one as to limitation or presumption or personal bar, but is one as to confirmation, and proof of intention to confirm is required. For this there must be something of a deliberate and positive kind, and such as makes what is said to be confirmation substantially equivalent to an iteration of the gift conferred by the deed. The reason is obvious. A transaction of this kind is contrary to public policy, and consequently was one regarding which the Court is not entitled to be astute in finding excuses upon which the gift may be sustained. The deed in question, when granted, ought not to have been taken, and by itself it carried no right, and if the thing which was gifted was to become the property of the donee, that must result from something by which the assignation was validated after the agency came to an end. There

is nothing of this kind which has been established, and therefore the defence must fail.

The title of the pursuers on the assumption that there was no confirmation has not been disputed. On the contrary, the condition of the argument presented to the Court was, that if Mr Logan did not confirm the gift, his testamentary trustees were entitled to reduce it after his death, as he himself might previously have done.

For these reasons I think that the judgment of the Lord Ordinary ought to be affirmed.

LORD KINNEAR-I am of the same opinion. I am not sure that I should concur with the Lord Ordinary in describing this assignation as a nullity, because if that were so I do not see how that could be set up by mere confirmation. And it is obvious that third parties acquiring rights under the donee in ignorance of the defect in his title, would, if the transaction were absolutely null, be unable to maintain those rights against the donor and his representatives. And therefore I should prefer to say that a conveyance or contract obtained by undue influence, whether the undue influence is proved to have been actually exercised, or whether it is only presumed by law (as in such a case as this is), is in precisely the same position as a conveyance or contract obtained by actual fraud-that is to say, it is not void but voidable at the option of the donor or the person coming in his place, and is valid until rescinded. I do not know that that distinction is of much practical importance, however, in this case, because it appears to me that the real question in either view is precisely the same, viz., whether the acts and conduct of the donor afford sufficient evidence of a fixed and deliberate intention that the transaction shall not be impeached?