
    Davis et ux. v. The Executors of Davis.
    This was a motion to set aside a nonsuit. It was a case of trover for certain negro slaves, tried before Mr. Justice Teezevant, in Marion district, April, 1804.
    It appeared from the report of the presiding Judge, that the defendant’s 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 it was already done, he had already given them to his daughter. There was some evidence that the testator intended, or had reserved a life estate of the negroes to himself. But there was no proof *of an actual delivery accompanying the gift, and for this deficiency of proof, the Judge ordered a nonsuit.
    
      Falconer, for the plaintiffs,
    insisted the evidence was proper to' be left to the jury in support of the plaintiff’s right of action, as evidence of 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, aud the conversation relative to the gift, at a time when one of the negroes was in the arms of the donee, might be construed into a sufficient act of delivery. 2 Str. 955 ; Esp. Dig. 566.
    
      Wilds, contra,
    argued that it would be indulgiug too great a latitude of construction, and presuming too much, to allow such evidence to have 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 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.
   Per curiam.

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 a key, &e. In the principal case, there was evidence given, which was proper for the jury to oonsider as evidence of an actual delivery. The donor acknowledged 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 a sufficient proof of a prior delivery of all the negroes in dispute. let the nonsuitj;be set aside, and a new trial granted,

Present — Justices Geisike, Waties, Johnson, Beevaed and Teezevant.

The last case was taken from a MS. collection, belonging to Abraham Blanding, Esq., and appears to have been transcribed from Judge Beevaed’s notes.

Note. — See the case of Davis and wife v. Davis’ Executors, reported at length in 1 Brevard’s Reports, 371, recently published by W. Riley, Charleston.

Also 2 IT. & McC. 95, and notes. 
      
      
        Grangiac v. Arden, 10 Johnson’s Reports, 293. R.
     