#### WILLIAM E. ADAMS *vs.*JOHN HAYES.

A, living in North Carolina, sent to his son-in-law B, living in South Carolina, certain negro slaves. Afterwards A, being in South Carolina at the plantation of B, where the negroes then were in the possession of B, told B, ia the presence of other persons, “ that he (A) had no claim to the negroes or the other property that had heen sent to B’s wife,” and further said, “ that the negroes were the property of B, that B might dispose of them as he saw proper, and that he (A) had no claim to them.” The law of South Carolina, in relation to pa-rol gifts of slaves, is the same as the common law respecting parol gifts of other personal chattels:

*Held*by the court that this was not a gift of the negroes to B — that to constitute a valid parol gift of personal chattels an *actual delivery*is necessary, that is, some *act*is required by which the *possession*of the thing delivered shall be *transferred*from the donor to the donee. The circumstance that the negroes are in the actual possession of the do-nee, at the time the parol declaration of gilt is made, forms no exception to this general rule.

If a gift had been made in South Carolina, according to the laws of that State, the gift would have been good here.

For the purpose of shewing that a loan and not a gift to a married daughter was intended, it is not competent to prove that loans and not gifts were made to other daughters on their marriage.

The case of *Ficot*v Sanderson, I Dev. 309, cited and approved-

Appeal from the Superior Court of Lincoln county, at Spring Term, 1842, bis Honor Judge Pearson presiding.

The action was of Trover for five negro slaves, which the plaintiff claimed under a parol gift by the defendant in the State of South Carolina. The law of South Carolina on the subject of parol gifts of slaves was proved by the depositions of professional men in that State to be the same as the common law, in relation to parol gifts of other personal chattels. It was proved that the plaintiff, residing in South Carolina, married in North Carolina the daughter of thede-*362fendant, who resided in the latter State — that this marriage P^ace ’ri September, 1836 — that after the marriage the took plaintiff took two of the negroes claimed, Romnlns and Ju-*¡iitj*witii him from* the *house of*the defendant to his own residence in South- Carolina — that the defendant told the plaintiff he would send the negroes Selina and her two children (the other three negroes claimed) to his plantation in South Carolina, as soon as he eouldnnake it convenient. — that soon thereafter,-in- November, 1836,. the defendant employed one Baker to carry the three negroes and certain articles of household and kitchen furniture to the plaintiff's plantation in South Carolina — that while Baker was loading and the ne-gross getting into the wagon, the defendant told him this was property he was loaning to his daughter, Mrs. Adams, and directed him to deliver the negroes and-other articles at the plantation of the plaintiff, which he accordingly did. It was proved by the-deposifion of Joseph Adams, that, in the latter part of the year 1836, the negroes were in the possession of the plaintiff at his plantation in South Carolina— that, in the latter part of the year 1837, at the plantation of the plaintiff, he heard the defendant tell the plaintiff “that-lie (the defendant) had no claim to-the negroes now in controversy, or the other property that had been sent to his wife” — that the defendant said “the negroes were the property of the plaintiff — that the plaintiff might dispose of them as he saw proper, and-that-the defendant had no claim to them.” This witness stated that the negroes were then in the plaintiff’s possession; and present. The defendant offered to prove that, upon the marriage of his other children, some of whom married before and some after Mrs. Adams, the defendant had expressly made loans oí the property they had got, and not gifts. This evidence was objected to by the plaintiff and rejected by the court. It was also in evidence that, in the spring of 1S37, the plaintiff and his wife disagreed, so much so that she left his house* and returned to her father’s, who prevailed upon her to go back and try to live with her Husband, and observed at the time, “ that if they should conclude to make a final separation, her going back would give him a footing td get’ back'the property.” *363She went back, but she and her husband agreeing no better, some time in the fall of 1837, whether before, after, or at the time of the conversation deposed to by Joseph Adams, the evidence left uncertain, the defendant went to South Carolina and brought Mrs. Adams and her infant child home with him, where they still remain. It was also in evidence that some few weeks afterwards, the defendant procured two men to go to South Carolina and take-the negroes from the possession of the plaintiff in the night time and bring them to him — that the plaintiff demanded the negroes of the defendant, who refused to give them up, whereupon this action was brought. In the course of the trial certain depositions were offered by the plaintiff, to which the defendant’s counsel objected, because, the notice being to take them on the 10th and 11th of a certain month; the depositions, as he alleged, were not taken in pursuance of the notice, inasmuch as they were commenced on the 10th and certified on. the 11th. The court overruled the objection.

The court charged the ju-ry, that whether the negroes were in the first instance loaned or given by the defendant to the plaintiff, it was not material to inquire; for the transaction, taking place in North Carolina, did not pass the title, whether it was a parol gift or a mere loan — that part of the case was with the defendant, taking it either way — that the -position assumed by the -plaintiff's counsel, that, if ihe defendant made a parol gift in North Carolina, Ihe fact of the defendant's afterwards sending the three negroes Selina and her two children to his son-in-law, the plaintiff, in South Carolina, brought the case, so far as these negroes were.con-eerned, within the laws of South Carolina and .passed the title to the plaintiff, was entirely erroneous; for if the gift was made in North Carolina, it was subject to the laws of North Carolina, and .it made no sort of difference, whether, after that, the plaintiff took .the negroes himself to South Carolina, or the defendant had the kindness to send them to him there: but the court further told the jury, that after the negroes got into South Carolina, whether there had been a previous gift or loan in North Carolina or not, if, then, the defendant, being in South Carolina, made a parol gift of *364them there to the plaintiff, that new gift, if there was such a one made in South Carolina, would be governed by the laws of South Carolina, according to which negro property C0uld pass by parol gift, and the plaintiff would be entitled to recover. The court then left it to the jury to say whether the evidence satisfied them that the defendant had made a new gift in South Carolina; charging them that they must first satisfy themselves whether the conversation deposed to by Joseph Adams took place as stated by him; and, if so, whether by that conversation th.e defendant intended then and there to give the negroes to the plaintiff, or merely to admit that he had previously made a gift to him in North Carolina, and in deciding this question they must give to all the evidence offered in this case its proper consideration. If there was a new gift in South Carolina, the plaintiff was entitled to recover, but if the defendant merely admitted then that he had made a gift in North Carolina, then the plaintiff was not entitled to recover. The jury found a verdict for the plaintiff. The defendant moved for a new trial, Jst, because the court erred in permitting the depositions to be read: 2ndly, in excluding the *evidence of*the manner in which the defendant had put property into the possession of *his*other children upon their marriage: 3dly, in leaving to the jury the question whether there had been a gift in South Carolina, upon the ground that there was no evidence of such a gift. The motion was overruled, and judgment being rendered for the plaintiff, the defendant appealed.

*Boyden*for the plaintiff.

*Badger, W. J. Alexander*and D. *F. Cftldwell*for the defendant.

Gaston, J.

The two first exceptions, taken by the defendant in this cause, appear to us clearly untenable, and have, indeed, been virtually abandoned by his counsel. But the third exception deserves a particular examination.

The presiding Judge upon the trial directed the attention of the jury to the enquiry, whether the evidence *established*the fact of a parol gift of the slaves in dispute, made in the *365State of South Carolina; and, upon that enquiry, he especially instructed them to ascertain, whether in the conversation between the defendant and the plaintiff in South Carolina, as set forth in the deposition of Joseph Adams, the defendant declared an intent then and there to give these slaves to the plaintiff, or only admitted that he had previously so given them; and that, to fix the meaning of this conversation, they should also take into consideration all the other evidence given in the cause — and then added, that, if they ascertained that the defendant thus made a gift in South Carolina, the plaintiff was entitled to recover; but if they collected no more than an admission by him of a previous gift in North Carolina, the plaintiff was not entitled to recover. The specific objection .taken to this instruction is, for that there was no evidence before the jury, upon which they could find a gift then made.

The conversation referred to is thus stated: The parties were together at the plantation of the plaintiff in South Carolina, in the latter part of the year 1837, and the negroes in dispute were then present and in the possession of the plaintiff, when the defendant told the plaintiff, that he (the defendant) had no .claim to the negroes or the other property that had been sent to his (the plaintiff’s) wife. The defendant said'that the negroes were the property of the plaintiff; that the plaintiff might dispose of them as he saw proper-, and that the defendant had no claim to them.

It is to be regretted that the witness had not stated circumstantially all that occurred in this conversation. It cannot be doubted but that it was a mutual conversation, and what passed therein on the part of the plaintiff might well elucidate the words of the defendant, to which, or to the substance whereof, this witness has undertaken to depose. But be this as it may, we feel ourselves bound to say, that what was thus said was not in low evidence of a gift then made of the ne-groes.

The common law, on the subject of gifts of chattels, is, wc are informed, the law of South Carolina with respect to gifts of slaves, and by that law a gift of chattels may be made by parol. But it is the settled rule of the common law, that to *366a parol gift of chattels, delivery of the chattels is an indis-Ponsable re(luisite. 1° l^e elementary books the doctrine is thus expressed: “Grants or gilts of chattels personal,” says Blackstone2nd Com. 441 — “are the act of transferring the right and the possession of them, whereby one man renounces and another man immediately acquires all title and interest therein, which may be done either in writing, or by word of mouth *attested by sufficient evidence,*of which the delivery of possession is the strongest and *most*essential.” Chancelk>r Kent in his- lectures, 2nd Kent’s Com. 438, lays down the rule thus; “Delivery is essential, both at Law and in Equity, to the validity of a parol gift oí a chattel or a chose in action, and it is the same whether it be a gift *inter vivos*or *causa mortis.*Without an actual delivery the title does not pass.” In delivering the opinion of the Supreme Court of New York, in the case of *Noble*v *Smith,*2d Johns. 52, this eminent jurist, then the Chief Justice of the csuct, traces this .rule up to the time of Bracton, by whom it is laid down in precise terms. In the case of *Ward v*Turner, 2nd Yes. sr. 431, which has been i;.garded as a leading case in all donations *mortis causa,*it was most emphatically declared by Lord Hardwicke, that an actual delivery is indispensable to vest the property, if the subject of the gift be capable of delivery — and where it is not, there must be a delivery of something, which is altogether equivalent to an actual -delivery-of the thing itself. The ground ©f his Lordship’s decision is, that *bythe*Jaw of England the delivery-of .things, which lie in livery, is indispensable to a gift, and, in adopting from the civil law donations *mortis causa, the English 'law*admitted them only, when they conformed to this inflexible rule, and were accompanied by delivery. To shew this, he referred to Swinburne who is explicit on the point. Swinb. 17, 22, 23. The doctrine established in *Ward*v *Turner*has been recognized as undoubted law, and has been applied also to cases of gifts *inter vivos*in *Tate*v *Eibbert, 2*Ves. Jun. 111—in *Antrobusv Smith, 12*Ves. 39—and in *Bunn v Markham., 7*Taun. 224. In *Ivans*v *Smallpiece, 2*Barn. & Ald. 351, (a case of-gift *inter vivos,)*it was laid down by Abbot, Ch. Justice, *367that “by the law of England, in order to transfer property by gift, there must be cither a deed or instrument of gift, or *there must be*an actual delivery of the thing given to the donee,” and IIolroyd, Justice, in expressing the same opinion, uses this language: “ in order to *change the property*by a gift of this description, there must be a *change of possession”*

It may be thought unnecessary to adduce authorities in support of a doctiine, which, as a general rule, has not been controverted, but these may be of use assliewing the extent of the rule, and tending to throw light upon a supposed exception to the rule, which is set up by the counsel for the plaintiff. It is admitted that the general rule may well apply, where the donor has possession of the thing to be given, and, therefore, can transfer the thing and the possession ol it together; but it is insisted that, where the possession is already in the donee, and, therefore, a transfer of possession cannot be made, delivery is necessarily dispensed with, and the property may pass by unequivocal woids of direct gift. In support of this alleged exception, no authority is produced, and, so far as our researches extend, none, which we are bound to respect, can be found. Nor are we led to adopt it by the compendious argument which has been urged. Finding the rule settled, that delivery is indispensable to a gift, we inter that, where delivery may not be given; the transfer to be effectual must be made otherwise than by gift. If there cannot be a delivery, there cannot be a gift, In the law of real property, a feoffment is defined the gift of a fief or feud, and to its validity it is essential that the possession of the fief should be formally delivered by the feoffor to the feoffee. This act is called livery of seisin, and without it even a deed of feoffment will not pass a freehold. If there be a tenant in possession, it is competent for him, who has the estate or right in the land, to transfer it to the tenant, but not by a feoffment or a gift without livery. He must do it by another mode of conveyance, appropriate to that state of the possession. He may release his estate or right, and when, by virtue of such release, it becomes united with the seisin or possession of the tenant, then the release operates *368either *to*enlarge *the*estate of tbe tenant, or to *pass*or extinguish the estate or right of the releasor. The analogy between dispositions oí real and personal property is not complete; for there may be a gift of chattels by deed, and a delivery of the deed renders the transfer effectual. But when there is no deed, the analogy prevails generally. Thus a chattel may pass by gift, but to this gift a delivery or transfer of the possession is indispensable, If the chattel be in the possession of him, to whom a transfer of the right or interest of another is desired to be made, the latter cannot make it by a gift without delivery, but he may do it by a sale or other appropriate mode of transferring interests and rights which do not lie in livery. When rules of property are once settled, it is not necessary, before we yield them obedience, that we should perceive the reasons upon which they are established. It is understood that the distinction between feoffments and releases of real estate is founded mainly on feudal principles, and it is believed that the distinction between gifts of chattels, and sales or releases of interest in them, is derived from considerations of public policy. ■Where property is claimed under a transfer purely gratuitous, unautheutiented by any formal instrument, there ought to be unequivocal evidence of a deliberate and final purpose of gift in the supposed donor. Now words, indicating- a purpose of immediate bounty, may have been inadvertently uttered, or words, intended to express a purpose of future kindness, may be misunderstood or misrepresented, as declarations of immediate bounty. Some act, therefore, or some instrument, evincing deliberation and completeness of purpose, and manifesting an intent to be carried into immediate execution, is very properly required to prevent imposition. Without delivery, a parol gift is, in law, but a promise to give, which, being without consideration, is not obligatory. *Picot*v Sanderson, 1 Dev. 309. A *transfer*of the property is required — and “ an *intention to give*is not a *gift.” Hooper*v *Goodwin,*1 Swans. 485.

The case before us strikingly illustrates the wisdom of the rule. The negroes were present and in possession of the plaintiff, who held them, either as his own property or as *369the bailee of the defendant. Certain words used by the de fendant in a conversation with the plaintiff in relation to these negroes, admitted to be of equivocal import, and con-stitnting but part of that conversation', and extracted therefrom without the context, are left to the jury as evidence of a donation of the negroes, if upon the whole' testimony they believe these words import a present intention to give,- and do not refer to a former invalid attempt to give. Now it is very probable that the words had another and a very different meaning. They seem to import rather a renuncia* tion of title, or the declaration of a purpose in the defendant to renounce his title — and it may have been that they were used as an artifice, by which' the more easily to accomplish the father’s purpose of carrying his daughter back to her an* cient home. Is it not obvious how exceedingly unstable would be the title to property, if it were to pass or not to pass from man to man, according to the interpretation, which might be put upon loose terms, imperfectly remembered, of inaccurately represented, not fully set forth, arid,- at the best,susceptible of many different meanings'? Is it not wise to require some unequivocal act or authentic instrument — some' form or some ceremony, easy of observance, and unambiguous in its character, to manifest the intent of the parties and to give effect to a transaction of so much importance? We do not hold that a *manual*tradition of the negroes was necessary; but, to give these words the operation of a gift, we are bound *to*say an *actual delivery*is necessary. There is no prescribed form for such a delivery, more than there is for the delivery of a deed, but an act is required in each case, by which the *possession*of the thing delivered — whether it be a chattel or a deed — shall be *transferred*from the donor or grantor to the donee or grantee. An old case, *Flower’s case,*reported Noy. 67, of which there is a note in Viner, Title Gift, letter A, may serve to explain this position. “ A borrowed of B £100, and at the day brought it in a bag, and cast on the table before B, and B said to A, being his nephew, *1 will not have it, take it you, and carry it home again with you;*Per Curiam; *“*this is a good gift by parol, being cast upon the table, for then it was in the possession of B, *370and A might well wage his law. But'it had been otherwise if A had only offered it to B, for then it was a chose in action only, and could-not be given without a writing.” So, this case, if the plaintiff had surrendered the slaves to the defendant, so as to put them into his possession, or it was shewn that the slaves were then regarded as in the possession of the defendant, and thereupon the defendant had restored them to the plaintiff, accompanied by the words used, this might have been a good gift by parol, for this return of the slaves would have been a delivery. But the witness deposed to no act nor- circumstance whatever, shewing or tending to shew any change of possession. Such as the possession was *before*the conversation, it remained during the conversation, and continued ever afterwards, until the defendant took away the negroes, for which act he is *sued*as for a conversion of the plaintiff’s" property, alleged to have been made his property, by that conversation-.

We agree with his Honor, that, if a gift Had- been made in South Carolina, effectual by the laws of that State, to pass the title of the negroes, they became thereby the negroes of the plaintiff, and the laws of this State will respect that title, and enforce his rights acquired thereby. There is nothing in the transaction which would violate ourpolicy. In requiring gifts of slaves to be made in writing, our law looks only to gifts made in *this State,*and regulates *such transactions*as matters of internal policy. It h aves to the other States to regulate transactions *of*that character occurring among them, according to their notions of expediency. Nor is there any reason to suppose that, in an executed contract or an absolute gift, the parties had in contemplation any other law than the law of the country where the thing was done. They intended the act to be effectual. They certainly meant it to be effectual, where it took place; they looked to no other place especially, but presumed that the rights, acquired where the act occurred, would be protected in every country, where rights of that kind are recognized.

We think that his Honor erred in instructing the jury, that they should find for the plaintiff, if they collected or were satisfied from the testimony of Joseph Adams, as ex*371plained by all the other-testimony in the case, that, in the conversation deposed to by him, the defendant intended then and there to give the negroes to the plaintiff — for an intention to give, however distinctly declared, .is not, in law, a gift, if it be declared by parol and be unaccompanied by an .act of delivery.

Per Curiam. Judgment reversed, and a new-trial directed.