
    Noble, against Smith and others.
    To make a valid gift, there must be an immediate possession of the thing1 deli, vered to the donee. If A Bays to B' I will give you the corn growing-in that field, belonging to A, this is not sufficient without a delivery, and if B after-wards, when the corn is ripe, enter the field and cut and carry away the com, he will be considered as a trespasser, Quere, whether corn growing is susceptible of delivery, in. any other way than by put. ting the donee in possession' of the land.
    
      'This was an action of trespass, for breaking and entering the close of the plaintiff, cutting down, taking and carrying away the wheat in the straw, which was there standing, and converting the same to his own use.
    The cause was tried at the Jtensselaer circuit in May, 1806, before Mr. Chief Justice Kent. The plaintiff proved that he was put into possession of the locus in quoin March, 1805, by the sheriff of Rensselaer county, by virtue of a writ of kahere facias possessionem, issued on a judgment in ejectment against one Hallett, and that he continued in possession to the time of the trespass. At the time the sheriff put the plaintiff in possession, he did not remove the goods out of the house of Hallett. It was. also proved that the defendants and their servants, in July, 1805, broke and entered the same close, and there cut down and carried away, though forbidden by the plaintiff’s overseer, near two hundred bushels of wheat in the straw. A witness for the defendants proved that 
      'Hallett had lived on the farm as a tenant to John Hill, the principal of the plaintiff, above two years before the plaintiff was put into possession. That two of the defendants were step-sons of Hallett, and lived in his family. That after Hallet was dispossessed he was sued, and taken on execution for rent due to Hill. The witness applied to the plaintiff to let Mrs. Hallett have some of the wheat then growing on the premises, for seed; and the plaintiff told the witness that “ he would give the -wheat growing to the defendants, the Smiths, for the support of themselves and Mrs. Hallett, and would procure a written surrender to be drawn up for Hallett to execute.” The Smiths afterwards requested the plaintiff to give them a writing for the wheat, which the plaintiff refused to do, saying, “that he would reserve it for them if he should' demise the premises to any other person. The Smiths were relations of Hill, who re-, quested them to repair the fence in the antumn, round the field in which the wheat was growing. Anoth er witness stated that the plaintiff, in October, 1805,. told him that he had given the wheat, to the Smiths, but that he^ had revoked the gift on account of some offence they had given him. Something was said of a condition annexed to the gift, but what it was did not clearly appear.
    The judge charged the jury that there was sufficient evidence of a valid gift of the wheat, and which was not revocable by the plaintiff. The plaintiff therefore submitted to a nonsuit.
    - A motion was now made to set aside the nonsuit, and for a new trial for the misdirection of the judge.'
    
      Henry, for the plaintiff.
    There was not sufficient evidence of a gift. There was only a promise of a gift; no consideration or inducement appears. It was a mere act of charity, and if perfectly gratuitous, the promise cannot "be enforced. The admission of the plaintiff must be^Pten together ,* if there werc_ a gift, it was a conditional one, and revocable. To make a perfect gift, it must be always accompanied with possession, and take effect immadiately. If possession be not delivered, it is a contract which is not valid, without a sufficient consideration. A gratuitous promise is revocable. There was no delivery here, neither actual nor symbolical. At the time of the supposed promise, the defendants or do-nees were not present, and their application afterwards to have it put into writing, shows that they did not consider it a perfect gift.
    Wood-worth, attorney general, for the defendants.
    The law in relation to gifts is not denied. It is enough, however, if such a possession be given as the nature of the thing will admit of. Delivery of possession does not mean an actual or manual delivery ; but such a delivery as is consistent with the nature of the thing. Nor was it accessary that possession should immediately follow the gift, if immediate possession were impracticable. The wheat could not be reaped before harvest time, and the delivery could not take effect before it was ripe; for to have .cut the corn before it was ripe would have been a trespass, There is no evidence that the gift was conditional; on the contrary, there is an express admission by the plaintiff, that there was an absolute gift, though the conduct of the defendant induced him to revoke it. The application to have the gift reduced to writingproves nothing, as it was a common opinion that a writing was necessary.
    
      Van Vechten, in reply.
    The whole evidence taken together, shows that there was not, in truth, any absolute gift. It was a mere gratuitous promise. To make a perfect gift, there should be an acceptance by the donee, and an immediate possession. There must also be a capacity in the donor to make the gift, and Nobl c was not in possession until March, 1805, If it be, made ipjmriing it will be valid without delivery, otherwise not. A breach of a promise to give, will not convert the promise into a gift. The thing must be susceptible of a delivery at the time, otherwise, it is incapable of being given, so as to transfer the property. There is no proof of any acceptance, or delivery, or possession, or ownership, by the donee. Of course, it cannot be considered as a legal and valid gift.
    
      
      
        Bffc. Com 441, 442. 2 Strange, 954, Jen , a Cent. 309,
    
    
      
      
        Dyer, 490.
    
    
      
       1 Ventris,22.
    
   Kent. Ch. J.

delivered the opinion of the court.

This case presents the following questions. 1. Can property in corn growing, be transferred by gift ? 2. Is there here the requisite evidence of such a gift ?

- After a consideration of this case, I am satisfied- that the opinion which I gave at the circuit, upon the trial of this cause, was incorrect.

Lord Coke is reported to have said, in Wortes v. Clifton, (1 Rol. Rep. 61.) that by the civil law, a gift of goods was not valid without delivery, but that it was otherwise by our law. This is a very inaccurate dictum, and the difference between the two systems is directly the reverse. By the civil law, a gift inter vivos, was valid and binding, without delivery; (Inst. lib. 2. tit. 7. § 2. Code lib. 8. tit. 54. l. 3. l. 35. § 5) but at common law, it Í3 very clear, from the general current of authorities'/that delivery is essential to give effect to a gift. (Bracton, de acq. rerum dom. lib. 2. fo. 15. b. 16. a. Noy. 67. Str. 955. Jenkins, 109. 2. Black. Comm. 441.) In the analogous case, also, of gifts, causa mortis, it was held by Lord Hardwicke, in the case of Ward v. Turner, (2 Vesey, 431.) where the subject underwent a very full discussion, that a delivery was necessary to make the gift valid $ and, accordingly, that a delivery of receipts for South sea annuities, was not a sufficient delivery to pass these annuities by that species of gift.

Srery, in both kinds of gift, is equally requisite, on s of public policy and convenience, and to prevent mistake and imposition.

If delivery be requisite, there was none in the present case. The land, at the time of the alleged gift, was in possession of one Hallett, and not of any of the defend* ants, to whom the gift is said to have been made; and before the wheat was ripe, the plaintiff recovered the possession of the land by due course of law. Here was not even an attempt at a symbolical delivery, and giving the testimony the strongest possible construction, in fa-vour of the defendants, it amounted to nothing more than saying, I give, without any act to enforce it. A mere symbolical delivery would not, I apprehend, have been sufficient. The cases in which the delivery of a symbol has been held sufficient to perfect the gift, were those in which it was considered as equivalent to actual delivery, as the delivery of a key of a trunk, of a room, or warehouse, which was the true and effectual way of obtaining the use and command of the subject. (2 Vesey, 442, 3. 4 Brown, 286. Toller's law of Exc. 181, 2.) I do not know, that corn, growing, is susceptible of delivery, in any other way, than by putting the donee into possession of the soil; but it is not necessary to give any opinion at present, to that extent; nor do the court mean to do so. It is sufficient to say, that, there was no evidence of delivery, in the present case, and that, to presume one, we must go the whole length of the example given in the Roman law, where the buyer is supposed to take possession of a large immoveable column by his eyes and his affections, ocülis el affectu. (Dig. 41, 2.1. 21.) The courts of equity seem to have adopted the true rule in their decisions, on the. donatio causa mortis, in which they hold, that the delivery must be actual and real, or by some act, clearly equivalent.

The opinion of the court therefore is, that the nonsuit be set aside, and a new trial awarded with costs, to abide the event of the suit,

New trial granted. 
      
       But gifts, ainounting- to the value of 200 solidi, were required to be publicly registered at the time. These gifts were also revocable, for ■ ingratitude, or where they deprived the next of kin of his share of the property of the donor, or, if the don- or had children after-wards.
     
      
       It was subsequently decided iri^fcTohns. Rep. 26. in the case of Pearson v. Pearson, that a gift is not-wnsummated until the delivery ef the thing promised, and until delivery a party may revoke his promise. Quere, whether corn growing is susceptible of delivery in any other way than by putting the donee in possession of the land ? ■
     