
    Administrator of James Baker v. Joshua Avant.
    A parol gift of personal estate is not good without delivery, 
      
    
    This was an action of trover, to recover damages for the conversion of four negroes.
    The plaintiff proved that the negroes belonged to James Baker, deceased, in his lifetime. He proved a demand, and a refusal by the defendant. He also proved the value of them, and closed his case. The defendant called a witness, who was his daughter, who proved that in January or February, 1813, Baker being about to go down the country, came to her father’s house a day or two before he went, and said he wished to dispose of his property in some way or other before he went away. He said, “ if he never returned the negroes should belong to her (witness’) father and mother, and their children.” The negroes were four in number, and he said he would give to Helen (one of the defendant’s daughters) a girl, and to James (son of the defendant) a boy. The others *he would give to her father and mother. The witness was then called upon to bear witness, as Baker said he would put it out of dispute. And after this disposition, he said, “ if I never return, I consider these negroes as yours forever.” But the witness understood if he did return, her father was to pay hire for them. The negroes, at this time, were at the plantation of another person, and the defendant afterwards brought them home. It also appeared in evidence, that there was a specific hiring by the defendant, for the then coming year, (1813.) Baker never returned to the neighborhood. The wituess was the only child of the defendant who did not get a specific donation. The defendant’s wife was Baker’s sister. He was single and unmarried, but he had a father, mother, two brothers, and six or seven sisters, besides the defendant’s wife. These negroes were almost all the property he had. This gift was never spoken of till the death of Baker, who, just before his death, spoke of dividing them among his relations generally. The defendant, after the death of Baker, called upon Baker’s father, and offered to give up the negroes to him, saying he was afraid of exciting the resentment of the family, and therefore would give them up to him, whom he considered as the sole heir. The defendant had claimed them under the alleged gift before this offer.
    The jury found for the defendant, and a new trial was now moved for, on the ground,—
    That a delivery is necessary to constitute a parol gift, and that there was, in this case, no evidence of a delivery.
    This case was tried before Mr. Justice Bat, at Marion, October Term, 1817.
    
      
      
         As to what is delivery, see Hatton v. Banks, Brashears v. Blassingame, and Murdock v. McDowal, and Reid v. Colcock, Charleston, Post, 223, 237, 592. R.
      See also 1 McC. 504; 2 Bail. 588; 1 Brev. 371.
    
   The opinion of the Court was delivered by

Cheves, J.

It is very clear, that it is necessary to the validity of a parol gift, that it be accompanied by delivery of possession; (2 Black. Com., 44;) and the Court has *no disposition to weaken the authority of this rule. The present case seems to furnish us with an admonition of its value. Here a single witness, the daughter of the defendant, establishes a gift to her father and mother, and their children, except the witness, (who, with a prophetic anticipation of the usefulness of her testimony, is denied a participation in the bounty of her uncle,) which is to exclude the donor’s father and mother, and eight or nine brothers and sisters, and their issue, without a suggestion, that the usual feelings of nature had been checked in their current towards any of them. It is, indeed, said by the same witness, that a brother-in-law, to whom he intended to give the whole of them, (another extraordinary caprice of feeling,) had offended him, and that for this reason he meant to give them all to the defendant and his children. The whole may be true, but the whole seems to be infinitely improbable; and as such testimony might easily be fabricated, the law seems wisely to have provided that the solemnity of delivery shall be necessary. In this case, there was no delivery. The negroes were not 'present. The subsequent possession of the negroes, though it had been under the gift, being the mere act of the defendant, could not supply the place of delivery. But the possession was obviously under the contract of hiring for the year 1813, and not under the gift, which was not to take effect immediately, but depended on two contingencies, viz.: the return of the donor to that neighborhood, and his death; either of which happening, it would never take effect.

jErvin, for the motion. Richardson, Attorney-General, contra,

On the ground, then, that there was no delivery, the alleged gift was void, and a new trial must be granted on that ground.

Grimke, Colcock, Nott, Gantt and Johnson, JJ., concurred.  