#### L. M. M'Ginney, by her next friend, *vs.*Stephen S. Wallace Administrator of Charles Hopkins.

Tried before his Honor Judge Richardson, Georgetown, April Term, 1836.

*Report.*— This was an action of trover to recover a negro, Pat, and her two children. The question made, was, whether Charles-Hopkins had given Pat to his grand daughter, (in law,) L. M.-MGinney, the plaintiff,

Susannah J. M‘Ginney, gave the following evidence : &c. &c. Mr. Hopkins took his negro Pat, by the hand, and put her hand into the hand of Laura M. M'Ginney, and said to the witness-and others-present,. “ this is no longer my property,, but this child’s,”’ (plaintiff’s ;) then addressing the child, he added “ daughter, (she was the grand child of Mrs. Hopkins,) but you must let her workfor grandfather, (himself) while he lives.'’ Hopkins kept Pat, during his life ; but always spoke of her as plaintiff’s negro. And did several acts on that principle, when Pat was sick.

Sarah M'Ginney swore to the same facts, which were fully proven.

The defendant’s counsel moved for a nonsuit, on the ground, that there was no delivery of Pat to the donee ; but a plain reservation of a life estate to himself, which precluded all idea of a delivery, or control of the donee over Pat, and which, left po more than a promise to give Pat, after his own death.

Upon the evidence, I could place but one construction. Hopkins wished’ that Pat should pass to the donee, after his death ; but reserved to himself, all control over her during his life, and exercised it fully. He, therefore, transferred no delivery, or exclusive dominion of Pat to the donee; but kept it in himself, and left no room for a constructive delivery afterwards by the reservation of his life estate.

Under this view, I had no doubt, the plaintiff must fail in her action ; because all verbal gifts require to be perfected by delivery, or a transfer of the donor’s control over the thing given. A colorable or seeming delivery, with a mere prospect, or engagement, that suclr transfer shall take place afterwards, leaves the whole legal.property still in the donor.

Upon the authority of the court, to order a nonsuit “ *in*invitum,” I should have had great doubt, in such a case ; but I could not re. fuse the motion, with due respect to the case of Pitts vs. Mangum, 2d Bailey, p. 588, and therefore, granted it. But for that decision, my own view of the law, would have been, that where the evidence affirms the plaintiff’s case, generally, *“ex aequo et bono”*although, it introduces a qualification in the fact of the delivery, which may,, *per leges*destroj the right to recover, which was the case before us ; the qualification, or reservation, by Hopkins, being but a part of the general fact of giving, the whole evidence should be left to the jury, under the exposition of the law, by the court. And I deem the *291principle adopted iuPits vs. Mangum, worthy of reconsideration by the Court of Appeals.

That case was a plain one ; but would not, any case of a verbal gift, accompanied by an imperfect qualified, or uncertain delivery, come w ithin the principle adopted, if the whole evidence came from the plaintiff’s witnesses.

The plaintff appeals on the grounds subjoined.

J. S. RICHARDSON.

*Grounds of Appeal.*

1. Because his honor erred in deciding that an unconditional parol gift vested no title.

2. Because his honor erred in deciding that a subsequent request to donee by the donor, to permit him to have the use of the negro during his life, was a reservation of a life estate in the negro.

3. Because hts honor erred in deciding that the conduct of the donor subsequent to the gift, was not evidence to show that such gift had been unconditional and absolute.

4. Because his honor’s decision, was in other respects, contrary to law and evidence.

MITCHELL, *Plaintiff’s Attorney.*

Mr. Justice Evans

delivered the opinion of the court.

In this case, I am of opinion the nonsuit should be set aside. I am entirely satisfied with the case of Pitts vs. Mangum, 2 Bailey, 588. Every parol gift must take effect immediately, or at least, the donor must part from the title, at the time of delivery. If he reserves to himself a dominion beyond the control of the donee, the title still remains in him. In such case, delivery does not consummate the gift, because of control reserved by the donor. This was the case in Mangum vs. Pitts. There the donor, although he delivered the negroes, expressly reserved to himself the use of the property, during the joint lives of himself and wife. It was an attempt to create an estate in a chattel, by parol, to commence in future, which cannot be allowed. The case of Mangum vs. Pitts, was decided on the authority of the case of Inabnet, reported in Judge Brevard’s MSS. Reports, *Sec.,*decided full 30 years ago. In this case it was proved, that after the delivery, the donor said, “ daughter, you must let her (the negro) work for grandfather while he lives.” And although Hopkins, the donor, kept the negro, he always spoke of her, as the plaintiff’s negro ; and when the negro was sick, sent for the plaintiff’s mother to nurse her ; and she also paid the expenses of her confinement, when her children were born. Now, these are circumstances, which may create a doubt, whether the donor did not intend to part from all dominion over the negro, *292and to vest her immediately in the donee. The inclination of my own mind, is, to the conclusion that he intended to reserve the use of the negro to himself for life ; but I do not think the matter so clear, as to take the caselrom the jury. Whenever the plaintiff’s case, presents a question of law, arising on clear and undisputed facts, the presiding judge, should settle the controversy by grant, ing a nonsuit; but the facts should be clear, to authorize this course. I do not think this a case, coming up to that rule ; and it should,, therefore, have been left to the jury.

Mitchell, for motion.

Punkin, contra,

Filed 14th February, 1837.

The motion is granted.

JOSIAH J. EVANS.

We concur,

RICHARD GANTT,

A. P, BUTLER.

JOHN B. O’NEALL,