
    *Fargus M’Dowell ads. James Murdock, Administrator of Mary E. Gilbert.
    There is no difference in the delivery required, in cases of donatio causa mortis, and other cases of parol gifts;  in all such cases, the only question is, whether the donor has parted with his dominion over the property or not. 
    
    If the possession of property pass from the donor to the donee, in his presence, and with his consent, whether it be delivered by his hand or only by his direction, is immaterial.
    In trover, the measure of damages is the value of the property, and such damages as must necessarily flow from the conversion; and the jury cannot give vindictive damages, 
    
    Where the jury, in an action of trover, find a verdict in the alternative, viz.: a certain sum in damages, to be released upon delivering up the specific property, either party may treat the condition as a nullity; and where an arbitrary verdict has been given to coerce the defendant into an alternative annexed by the jury, a new trial will be granted, 
    
    This was an action of trover, for two negroes, owned by Mrs. Gilbert, plaintiff’s intestate, in her lifetime.
    Defendant claimed them as a donatio causa mortis. It appeared in evidence, that the deceased lived and died at the house of defendant.
    Samuel Nesmith, the first witness, swore that he was in the room when Mrs. Gilbert was lying sick, a few hours before her death. Mrs. M’Dowell, defendant’s wife, was also in the room. Deceased said to her, “ where is cousin ?” meaning defendant. Mrs. M’Dowell informed her that he was not present. She then asked where her negroes were 1 Mrs. M’Dowell informed her they were present in the room, and asked her what she wanted with them. She said, “ I want you to take them, and treat them well.” She repeated this over again, with an injunction, particularly to treat Jenny (one of the negroes) well.
    Mrs. Parker, the next witness, was also present. She corroborated the testimony of Mr. Nesmith. Mrs. Gilbert appeared to have the full exercise of her reason, and was sensible of her approaching dissolution.
    *These witnesses were of opinion that deceased intended it as a gift rpjjgj.g wag a grea¿ intimacy and friendship between Mrs. Gilbert and defendant ; and she had previously expressed her intention to give her property to him. He had the property in his possession always after her death.
    For the defendant, Mr. M’Knight was sworn. He was present with the above mentioned witnesses. He was not of opinion Mrs. Gilbert intended to give the negroes to defendant; but that he should take them, and take good care of them for the persons legally entitled.
    
    There was other testimony tending to explain the nature of the gift, and the intention of the donor, which it is not necessary to relate, as the ease turned on another point.
    The cause was tried at Georgetown, Spring Term, 1818, before Mr. Justice Gkimke.
    The presiding Judge, among other things, directed the jury, that there was not such a delivery in this case, ás would constitute a donatio causa mortis. That in other cases of parol gifts, such evidence would be sufficient; but in cases of this sort, an actual manual delivery was necessary.
    The Court also further directed the jury, that in actions of trover, they had a right to find a verdict in the alternative; to wit, to give a certain sum in damages, to be released upon delivering up the specific property ; and that in such cases they need not regard the actual value of the property in estimating the damages but might give such a sum as would compel the defendant to deliver it up.
    The jury found for the plaintiff, a verdict of $1200, to be released upon his delivering up the negroes.
    This was a motion for a new trial, on the following grounds :
    1. That the presiding Judge mistook the law in charging the jury, that in order to effectuate a donatio causa mortis, the law required an actual, manual delivery, without regard to the nature of the property given.
    2. That he also mistook the law in charging them *that they might give an alternate verdict ', and might give such damages as would compel the defendant to deliver up the specific property to the plaintiff, to he released upon such delivery.
    3. That the verdict was contrary to law and evidence, and the damages excessive.
    
      
      
         Roberts on Wills, 12. Noble v. Smith, et al., 2 John. Rep. 55.
      
    
    
      
      
        Baker v. Avant, 218. Hatton v Banks, 221. Brashears v. Blassingame, 223. Executors Davis v. Davis, ante. Adm’rs. Hooper v. Hooper, 1 Tennessee Rep. 187.
    
    
      
      
        Knight v. Bourne, Cro. Eliz. 116. Olivant v. Berino, 1 Wils. 23.
    
    
      
      
        Johnson ads. Packer, ante, 1. Alston v. Vereen, Charleston, January Term, 1818. (2 Rice’s Dig. 347.) MS. R.
    
   The opinion of the Court was delivered by

Nora, J.

Whether the circumstances of the gift and delivery of the property, in this case, were such as constituted a good gift, in contemplation of the death of the donor, is a question on which I shall give no opinion. That was a question in which the law and facts were so intimately connected and blended, as to be equally within the province of the jury as the Court. And if the ease had been submitted to them, with a fair and correct exposition of the law, it is probable this Court would not have disturbed the verdict. But the grounds on which I have founded my opinion are the two first taken in the brief, and which involve the correctness of the opinion expressed to the jury by the presiding judge.

After examining all the cases brought to the view of the Court, I have not been able to discover any foundation for the distinction made between a donatio causa mortis, and any other parol gift. The cases of Hedges v. Hedges, Precedents in Chancery, 269; Ward v. Turner, 2 Ves. 431; Miller v. Miller, 3 P. Wms., 356; and the case from 2 Ves., jr., 120, ( Tate v. Hilbert,) prove only what is not denied, that actual delivery is necessary. It is equally so in all other cases of parol gifts. In the case of Hedges v. Hedges, the Court are reported to have said, a donatio causa mortis is where a man, lying in extremity, gives, with his own hand, his goods to his friends about Mm ; but by looking through that case, it will be seen that no importance is to be attached to the particular manner of expression. It amounts to nothing more than that actual delivery is necessary.

*The consummation of every parol gift is delivery. There must be an actual transmutation of possession and property. And the real question in all such cases is whether the donor has parted with his dominion over it.

The same evidence, when there is nothing to weaken the force of it, will produce the same conviction on the minds of a jury, whether the donor be in full health or lying on a death-bed. If the possession pass from the donor to the donee, in his presence, and with his consent, whether it be delivered by his hand, or only by his direction, is perfectly immaterial. In Toller’s Law of Executors, 234, a number of cases are collected, where a symbolical delivery was held sufficient. See, also, Bailey & Bogert v. Ogden, 3 John. Rep., 420; Wilkes v. Ferris, 5 John. Rep., 335.

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

However, it is not my intention to show what would be a good delivery of the property in such a case. It is sufficient that the law was incorrectly stated to the jury, and that they may have been governed by it. To support such a verdict would, perhaps, give effect to one which the jury might not have found, if they had been correctly informed.

2. I think the defendant’s claim for a new trial is not less strong on the second ground. It has lately been determined by this Court, in several cases, that a jury cannot give vindictive damages in an action of trover. The value of the property, with such damages as must necessarily be supposed to flow from the conversion, is the only true measure. Such, for instance, as the work and labor of negroes; interest on the value of dead property, &c. But in this case they may have done more than even give vindictive damages. They were led to believe that they might give damages, without regard to the real value of the property, or the injury which the plaintiff had sustained, for the purpose of coercing the defendant into terms, which they had no right to impose. If the jury had given only the real value of the property, annexing the alternative, it would have been harmless; for it would have done the defendant no injury, and it*would not have been compulsory on either party. But to permit a jury to give an arbitrary verdict, by way of penalty, to compel the defendant into a measure inconsistent with the nature of the action, is not supportable on any principle of law. And no case can be more illustrative of the incorrectness of such a practice, than the one now under consideration. The defendant has a good ground for a new trial; but he must lose the benefit of it, or subject himself to the penalty which the jury have thought proper to inflict. Indulging such a practice would be creating a sanctuary for an erroneous opinion of the Court, which the judges, on their own account, should feel disposed to demolish.

' I do not know that the damages in this case are too high; but as the jury acted under a mistaken view of the law, they may have given damages higher than they otherwise would have done.

On the last ground, I shall make no observations in addition to the remarks incidentally made in considering the two first.

A new trial must be granted.

Colcock and Cheves, JJ., concurred. Gantt, J., dissented. 
      
       Ante. 222.
     
      
       Ante. 3.
     
      
       2 McM. 371; Rice, 314. As to vindictive damages, see 11 Rich. 283, and 2 N. & McC. 543.
     