Young v. Young.

It is admitted by plaintiff in error, that John Young in his lifetime, did give to his two sons, Marcus and Newell Young, the slaves in controversy. But he insists that this gift was imperfect and void for want of delivery to the donees of the subject of the gift.

To constitute a valid gift, there must be a delivery. This point is decided in the case of Marshall v. Fulgham, 4 How. 220. The only point settled by that case. In the case of Carradine v. Collins, 7 S. & M. 432; it was also decided, that no gift was valid without a delivery of the article, or some act equivalent to a delivery. A gift of chattels is valid without delivery; "actual delivery is not necessary, it may be constructive or symbolical. Delivery is a question of fact for the jury to determine." The case of Grangias v. Arden, 10 Johns. 293, is referred to as a good example of constructive delivery.

It has been held, that the declarations of the father's wife, in his absence, at the time the daughter took possession, that she did not give, but only lent her the slave, did not change the gift into a loan, though the possession was obtained from the wife, without complaining of the qualifications of the gift. Martrick v. Linfield, 21 Pick. 325.

In the case from 1 Mis., just referred to, Brunson placed in the hands of J. A. Brunson several securities for money, with directions for him to collect them and pay himself for the trouble, retain one third, and divide the balance between Robert and Ashbell Brunson. Held, that it was a good gift to Robert and Ashbell.

In the case from 10 Johns. 296, which we have cited, the subject of the gift was a lottery ticket by a father to his infant daughter. The evidence of delivery of the subject of the gift, was, that the father purchased a lottery ticket, which he brought home and said was for his daughter; he wrote the daughter's name on the back of the ticket, and put it in his desk; the child was not present at the time. After the prize was drawn, the father's declarations were, that the prize money was not his but his daughter's. "As held by the court in the case of Carradine v. Collins, 7 S. & M. 432, here was no proof of an actual

Young v. Young.

delivery of the lottery ticket," but is a case of good constructive delivery.

The jury may infer a delivery of the property from facts and circumstances, and the preponderance of the evidence is greatly in favor of the delivery.

It has been repeatedly decided, that a new trial will not be granted, even where the verdict is against evidence, unless the preponderance of evidence be great. See Gibson v. Gibson, 9 Yerger, 329; Dickson v. Parker, 3 How. 219; Harris v. Halladay, 4 Ib. 338; Kellogg v. Budlony, 7 Ib. 340; Leflore v. Justice, 1 S. & M. 381; Ellzey v. Stone, 5 Ib. 21.

If any of the charges given were erroneous, or any improperly refused, justice has been done in the cause, and it is likely a different result would not ensue on another trial. Under such circumstances a new trial will not be granted. Hill v. Calvin, 4 How. 231; Perry v. Clark, 5 Ib. 495.

H. A. Barr, for appellant, in reply.

Delivery in case of a gift must be according to the nature of the thing. "It must be an actual delivery so far as the subject is capable of delivery." "It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject." "If the thing be not capable of actual delivery, there must be some act equivalent to it." "The donor must part not only with the possession, but with the dominion of the property." 2 Kent, 439.

It is believed that every respectable authority goes to the extent, that there must be an abandonment of the dominion of the property by the donor. Pennington v. Gittings, 2 Gill & Johns. R. 208; Ewing v. Ewing, 2 Leigh, R. 337; Sims v. Sims, 2 Ala. R. 117; Noble v. Smith, 2 Johns. R. 52. In Marshall v. Fulgham, 4 How. 221, the point is settled by this court.

In the case of Crangiac v. Arden, 10 Johns. R. 302, there were acts done which amounted to an abandonment of the dominion over the subject of the gift. The name of the daughter was written on the back of the ticket, and the prize money was placed in trade for her. If the money was put in

Young v. Young.

trade for her, it was not for himself. There was, therefore, an abandonment of dominion over it by the donor.

The court below refused to charge the jury, that a father, as natural guardian of his child, is not entitled to the charge and management of the property of such child, and that possession by the father in such case is not by construction the possession of the child; but in effect charged, that the father is the natural guardian, and that possession by the father is by construction the possession of the child. This was manifest error. The father is by nature the guardian of his child; but this guardianship extends only to the custody of the person of the child. As natural guardian, the father has no more to do with the property of the child than the man in the moon. He is an entire stranger to it. 2 Kent, 219; Hyde v. Stone, 7 Wend. R. 354. It never was held by any court upon the face of the earth, that the father, as natural guardian, had any thing to do with, or any connection whatever with, the property of the child. How, then, or upon what principle, can the possession of the father, who is only natural guardian, be by construction the possession of the child?

The effect and result of the doctrine contained in the charge of the court is this, that although delivery is essential to the validity of a gift, yet, when the gift is from a father to a child under age, delivery is not necessary. The second charge of defendant in error is calculated to mislead the jury. The other charge asked by defendant below, and refused by the court, is but an enunciation of the principle laid down in the case of Marshall v. Fulgham, 4 How. R. 221, and it was error to refuse it.

Mr. Justice FISHER delivered the opinion of the court.

This was an action in the circuit court of La Fayette county, by Henry S. Young, as guardian of Marcus D. Young, against George Young, as administrator of John Young, deceased, to recover a certain slave, and hire for a certain time. The plaintiff below obtained a verdict and judgment; whereupon the defendant made a motion for a new trial, which was

Calhoun et al. v. Grimes.

overruled, when a bill of exceptions was taken, embodying the evidence.

The proof is, that John Young, the intestate, and father of Marcus D. Young, in the year 1842, called his children together and gave to each of them certain slaves; those children who were of full age took the slaves thus given into possession. The slave now in controversy was at the same time given to the ward, who was then an infant and living with his father. It is urged, that there was no actual delivery of the slave, and the gift was therefore void. There is no direct proof on this subject; but there was sufficient to authorize the finding of the jury, that a delivery was in fact made. We must suppose that the father actually intended to make a complete and valid gift, from the fact that he had caused his children to assemble for that purpose; and an actual delivery, in the absence of evidence to the contrary, will be presumed to have been made to the minor. The possession of the father after the gift, was in law the possession of the donee who lived with him. This point is too well settled to require authority. Judgment affirmed.

[CHARLES CALHOUN et al. vs. BENJAMIN GRIMES, Adm'r, &c.

All pleas in abatement should be disposed of at the appearance term, according

to the act of 1840.

At the trial term, the court can demand an affidavit of merits before allowing the party to plead.

In error from the circuit court of Choctaw county; Hon. F.. M. Rogers, judge.

The defendants in the court below withdrew their plea in abatement at the trial term, and asked leave to plead to the merits of the case, without affidavit being made of merits, which the court refused to permit them to do. This is the

Hall et al. v. Cassidy.

only error assigned, and defendants below, after judgment had been rendered against them, prayed this writ of error.

Huie, for appellants.

Whitmore, for appellee.

Mr. Justice FISHER delivered the opinion of the court. This was an action of assumpsit in the circuit court of Choctaw county. The action was brought to the June Term, 1848, of said court, and tried at the December Term, 1849. At the trial term, Calhoun withdrew his plea in abatement, which was manifestly frivolous, and asked leave to plead to the merits, which the court refused without an affidavit of merits.

Under the statute of 1840, the plea in abatement should have been disposed of at the appearance term. At the trial term the court had the right to require an affidavit of merits, before allowing the party to plead, as his pleadings might delay the cause.

Judgment affirmed.

HALL & DUGLASS vs. A. A. CASSIDY, Administrator.

The statute requires four weeks publication of notice to non-residents, before the day on which a petition for distribution of an estate can be heard. The proper mode of computing time, when notice for a specific time is to be given before an act can be done, is to exclude the day on which the notice was given, and include the day fixed for the performance of the act.

IN error from the probate court of Madison county. The only point in this case was, whether the requisite legal notice had been given to the distributees before the day of dis