The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-01


ter wholly within her control, and subject
her volition.
But It is urged, in behalf Of th
defendant, that there was evilenc
from which the jury might have found
that note for the debt wa
given by tho defendant, to the testaing
and that it was delivered up by her ID hin
in one of the conversations mentioned b.
the witnesses and, therefore that the dis
charge was sufficient under the rdle stlted
But this is not justified by the evidence i
is plain that the note prepared and oferet
by the defendant, was never in her hands
and was never accepted by her, an evibnc,
of the debt. On the contrary, she refused
to receive it and told him to destroy y. i
there was any just ground for saying thai
this was a constructive delivery to, ard 40
ceptance. by her Of the note, and that hel
direction to him to destroy it was eqniwlen,
to a delivery of to him, and announced tC
q satisfaction of the debt, that CONCLUSION Ii
negatived by the declaration, that she
needed the money she would call on hin fol
it; which shows that she did not iltend
absolutely to forgive the debt
The modification was manifestly Fron
eous. LIST, in submitting it to the jury, lndeI
the circumstances shown lby the evdeIce to
decide the question whether there vas a
delivery. That was mixed questbn OF
law and fact and the Court shouldhave
directed the jury what was requisite b law
to constitute delivery, and then to hav told
them that they should find that therewas a
delivery or not, according as they hould
believe the facts to be when governed ly the
principles declared by the Court. mt the
legal questions, whether the facts shwn in
evidence amounted in law to a delivery or
not, and what act was equivalent inlaw to
delivery were left to the jury. The
Court should have directed the jury that,
if they believed the facts stated in he in
strnction, they did not constitute delivery,
because the testating had never rfeiyed
the promissory note for the debt with the
defendant rendered her, and could not, there
fore, deliver it uN and her declaration to
him to destroy it, was not equivalentto an
acceptance by her and delivery to hin; for
she, ut the same time reserved her right to
the debt, if she thought fit to demand it
afterward. This would not have jeen an
instruction to the jury on the weight of evil
dence, as the learned judge appear to have
considered; but q statement of a Dgal rule,
for the determination of the QUESTION pre-
sented, proper to have been decided by the
Court, and which the jury were incompetent
to decide.
We think, therefore, that therewas error
both in the refusal of the instruction as ask
ed, and in the modification made tt it.
The second instruction is ii thee words,
"If the jury believe, from the evidence, that
defendant in 1860 owed plaintiffs estating
5000, due by parol or open account, md that
said testating never did make gift of
said debt to the defendant, SO th.t she no
longer had any control or dominion over it,
but reserved to herself the right, if she chose
to do 80, to call on the defendantfor pay
ment of said debt, that such translation did
not constitute legal valid gift of said debt
testating could have recovered sid debt,
and that the right 30 recover the SINE, also
devolved upon her executor, the ralntiff"
This instruction was refused, put was
modified by adding between ths words
transaction" and did" these words, eff
unaccompanied by what was equivalent to
delivery" From what we have sad above,
the modification made by the Court was
erroneous, and the instruction sholld have
been granted as asked
The third instruction is as follows: "That
to make valid legal gift of debt due by
parol or open account, the creditor must in
writing, release or discharge said debt or do
some act by which the debt is placed beyond
his legal control or dominion; that verbal
declaration by the creditor to the debtor, to
the effect that "if she needed the money she
would call ON him for it, but that she never
expected to do it; that she had given the de-
PENDANT The debt unless she needed it and,
called for it"-that such statements and
declarations do not establish valid execu-
ted gift in law, or put it out of the power of
such creditor or her personal representative,
after her death to recover such debt"
The Court refused to grant this as asked,
out modified it by striking out the words
lin writing release or discharge said debt"
IF in the first part of it; and by adding at
he end of it these words--"if she called for
t during her lite"
This falls under the same principle above
tated, and the instruction as asked should
rave been given. Both the striking out and
he addition were erroneous. If the debt
vas not released in a manner necessary in
aw to discharge the defendant, it remained
n force to the testating during her life, and
vent to her executor after her death; and
hat was the necessary legal result of her
lot having released the debt in manner
hat would bar her right. ;q.-sa.
The fourth instruction is in these words
That Declarations tby opsditnr that she
ad given or would give debt due her to
er debtor, does not establish legal or valid
lift, if there is no release or aVritten discharge
f the debt by the creditor, and the creditor
ives up no evidence of the debt which she
eld, and makes no delivery of anything
7hatever to the debtor, in execution of such
LEGGED gift"
This was modified by striking out the word
,Uritten," in the instruction; which we think
yas erroneous. The instruction was proper
nder the facts of the case, and should have
cen given as asked.
The third assignment of error is, that the
curt gave the instructions asked by the de-
,ndant
The first instruction stated in substance,
nat if the jury believed from the evidence
lat the amount sued for was at one time |
videnced by note, which was the property |
the testating, and which was given by |
or to the defendant, they should find for |
lie defendant-that to make valid gift, |
lere must be delivery of possession of the |
ling given, either actual, constructive or
vmbolical to the donee, or the absolute
lrting of all ownership and dominion over
by the donor-whether there has been
lch delivery or such parting with dOmin-
n and ownership, is question for the de-
of the jury on the evidence.
This instruction is erroneous in leaving to
10 jury several questions of law, which
ere proper and necessary, under the cir
of this case, to be determined by
10 Court. l. 1t was improper to leave it to
70 jury to say whether the note was
70 property of the testating, without
recting them that it was necessary to
AXE it her property, that she should
I've accepted or received it as such; for
ey We're left to determine whether tho
ere preparation and tender of the note for
e debt, did not make it her property.
bat beinga question of law essential to the
Oper determination of the matter present.
by the instruction, the Court should not
I'VE left it to be determined by the Jury
thout stating to them the rules of law APP
icable to the facts as shown. GARRETT VS..
80 Miss 3S9. Greenwade vs. Mills,
Miss. 464 Fairly VS.. Fairly, 80 id. 280. {
d. The question what was requisite to .
Institute avalid gift of the debt, either ac-
al, constructive or symbOlical," or a de-
Iery of possession or parting with owner
ip of the debt, is in terms submitted to the I
of the jury. It is manifest /
at that was que'tion of law, and that the
,urt should have slated to the Jury, the
les by which, underline facts shown in ey-
ence, it was to be decided by them. In eff {
ct, the instruction subuits the whole law Z
the case to be determine by the Jury.
The second instruction is ,bnoxions TO the I
me objection. 1t left the Question of de-.
cry, or what was equivaleft to delivery.
be determined by the jury. But it was : :
10 improper, because there waAno evidence 1
itch in law tended to show, tina the testa- I