
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1804.
    Davis and Wife v. Executors of Davis.
    To constitute a valid parol gift from a parent to a ohild, the formal ceremony of a delivery is not essentially necessary. It is sufficient if it' appear, that the donor intended an actual gift at the time, and evidenced his intention by some act, which may be fairly construed into a delivery. And where the donor acknowledged that he had given certain slaves to his daughter, in her presence, and when she had one of the slaves, then an infant, in her arms; and there was proof of repeated prior declarations by him of his intention to give the same slaves to the same daughter: held, that this was sufficient proof, of a gift of all the slaves mentioned, to be submitted to a jury.
    Motion to set aside a nonsuit, and grant a new trial. This was an action of trover, for certain negro slaves, tried before Trezbvant, J. in Marion district, last circuit. It appeared, from the report of the judge, that the defendants’ testator had Signified at different times, that he intended to give the negroes in question to his daughter, the plaintiff, Davis ; and that there was evidence given that one of the negroes, when a child, being in the arms of the testator’s said daughter, her mother observed, that her daughter ought to have those negroes, speaking of the negroes in question, to certain persons present, and went on further to mention, that her father had given them to his daughter. The father being present, answered, that it was already done, or that he had already given them to his daughter. There was some evidence that the testator intended, or' had reserved, a life estate in the negroes, to himself. But there was no proof of an actual gift, accompanied with delivery : and for this-deficiency of proof, the judge ordered a non-suit.
    Falconer, for the plaintiffs,
    insisted that the evidence was proper to be left to the jury, in support of the plaintiffs’ right of action, as evidence of the property in them ; and that the judge had mistaken the law on the subject: for although a parol gift, without some act of delivery, is not good, yet here the jury might fairly presume, that there was some act of delivery ; and the conversation relative to the gift, at the time when one of the uegroes was in the arms of the donee, might be construed into a sufficient act. of delivery. 2 Str, 950. Esp. Dig. 566.
    Wilds, contra,
    
    argued, that it would be indulging tqo great a latitude of construction, and presuming too much, to allow such evidence to have any weight, in proof of a title by gift, from a deceased parent or friend ; and that it would be wiser, and safer, to restrain the proof in such cases to some certain act of delivery, and not allow presumptions to have the same effect as positive proof of such act of delivery : and that at best, no clear inference could be drawn from the evidence given, whether the testator intended an absolute gift, or only a gift of the property after his death ; and if the latter, the gift was not complete, and could not be effectuated by delivery. And that it would be an idle waste of time, to suffer such insufficient evidence to go to the jury.
   By the court.

Parol gifts to a child are common ; and it has not been usual to evidence such gifts by any solemn act of delivery. The formal ceremony of a delivery is not essentially necessary. It is sufficient, if it appear, that the donor intended an actual gift at the time, and evidenced such intention by some act, which may fairly be construed into a delivery : as in the case cited from Strange, where the donee was put into possession, by being intrusted with the key, &c. In the principal case there was evidence given, which was proper for the jury to consider as evidence of an actual delivery. The donor acknowledged that he had given the negroes to his daughter, when questioned on the subject, and at a time when she had one of them in her arms. This was, in itself, evidence of a delivery, or surrender of his right to his daughter: and accompanied with other circumstances, might be deemed sufficient proof of a prior delivery of all the negroes in dispute.

Nonsuit set aside, and a new trial granted.

Present, Grimke, Waties, Johnson, Trezevant, and Breyard, Justices; Bay, J. absent.

Note. By the civil law, a gift of goods is not good without delivery; yet it is otherwise in our law. Per Coke, Ch. J. Roll. R. 61, 62. 12 Jac. B. R. in the case of Wrotes v. Clifton. See 14 Vin. Abr. 19.  