very of the thing to the donee: when there is no such deed or instrument the property is not changed without a change of possession. Irons v. Smallpiece, 2 Barn. & Ald. 551; Shower v. Pilck, 4 W. H. & G. 477; Noble v. Smith &c. 2 Johns. 55; Cook v. Husted, 12 Id. 189; Withers v. Weaver, 10 Barr 391; Ewing v. Ewing, 2 Leigh 337.

A donor holding an attorney's receipt for a bond--which was in suit and was filed among the papers in the suit-told her son that he might have the bond, and gave him the attorney's receipt for it. In an action by the donee against the donor's executor for money received on account of the bond, the court of appeals of Virginia (not without doubt on the part of some of the judges) held that by virtue of the delivery of the receipt, there was a valid gift of the bond, and gave judgment for the donee. Elam v. Keen, 4 Leigh 333. There is some difficulty in maintaining that in such a case possession does "really and bona fide remain with the donee." 1 R. C. 1819, p. 372, 3, ch. 10, $ 102. It was competent to the donor to withdraw the bond from the papers of the suit, and to give it to the donee or give it to another. Suppose that after delivering to her son the attorney's receipt, the donor had gone to the clerk's office and had obtained the bond, and given it to another, with whom, thenceforth, possession "did really and bona fide remain," which would have had the better right to the bond-the son to whom the attorney's receipt had before been delivered, or the donee to whom the bond was actually given, and with whom possession thereof did "really and bona fide remain ?"

In Virginia, for more than a century, there have been statutes prescribing what is necessary to make a valid gift of slaves. The construction in Taylor v. Wallace, 4 Call 92, of the act of 1758, in 7 Hen. Stat. 119, Id. 237, was followed by the act of 1787, in 12 Hen. Stat. 505, which was passed on in Turner v. Turner's ex'or, 4 Call 234, 1 Wash. 139. Decisions have since been made under the act of 1758, in Jordan &c. v. Murray, 3 Call 85; Speers v. Willison, 4 Crauch 398, and Cross v. Cross's adm'r &c. 9 Leigh 245; and under the acts of 1787 and 1819, (1 R. C. 1819, p. 432, § 51,) in Mortimer v. Brumfield, 3 Munf. 122; Durham &c. v. Dunkly, 6 Rand. 135; Talbert &c. v. Jenny &c. Id. 159; Hunter v. Jones, Id. 541; Shirley v. Long, Id. 735; Hansbrough's ex'ors v. Thom, 3 Leigh 147; Brown v. Handley, 7 Id. 119; Patterson v. Franklin, Id. 590; Collins v. Loftus & Co. 10 Id. 5; Anderson v. Thompson, 11 Id. 439; Slaughter's adm'r v. Tutt, 12 Id. 147; Barker v. Barker's admir, 2 Grat. 344; Anglen v. Bottom, 3 Id. 1.

In accordance with the acts in 1 R. C. 1819, page 372, ch. 101, § 2, and page 432, § 51, the revisors of the Code of Virginia reported as part of § 1 of ch. 116 of the Code, that "no gift of a slave or of any goods or chattels shall be valid, unless by deed or will, or unless actual possession of such slave, goods or chattels be bona fide delivered to the donee." With the view, no doubt, of avoiding in future some of the questions that occurred in some of the cases above cited, the joint committee on revision amended that part of the section; and it was passed in the following terms:

No gift of a slave or of any goods or chattels shall be valid, unless by deed or will, or unless actual possession shall have come to and remained with the donee, or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be a sufficient possession within the meaning of this section. Code, p. 500, ch. 117, § 1.

2. When the claim is by virtue of a donatio causa mortis.

The donatio causa mortis comes from the civil and Roman law. 2 Ves. sen. 439. It is where a man lies in extremity or is surprised with sickness and not having an opportunity of making his will, lest he should die before he could make it, he, with his own hands, gives to friends about him. Prec. in Ch. 269; 3 P. Wms. 357; Blunt v. Burrow, 1 Ves. jr. 546, 4 Brown's C. R. 72; Tate v. Hilbert, 4 Brown's C. R. 290. It is a gift in præsenti to take effect in futuro, after the donor's death, and like a will is revocable during his life. Jones v. Selby, Prec. in Ch. 300. It must be in contemplation of the conceived approach of death. 1 Bligh N. S. 530. And the gift must be conditional, that is to take effect in the event of death. Waller v. Hodge, 2 Swanst. 103. It leaves the whole title in the donor unless and until that event occurs. 1 Bligh N. S. 230. If it appear that the donor really intended to make an immediate and irrevocable gift, the transaction cannot be sustained as a donatio causa mortis. Tate v. Hilbert, 2 Ves. jr. 111, 4 Brown's C. R. 286; Edwards v. Jones, 7 Sim. 325, 10 Cond. Eng. Ch. Rep. 79, 1 Mylne & Cr. 226, 13 Cond. Eng. Ch. Rep. 371.

Lord Hardwicke in a case wherein the donatio causa mortis is much considered, laid down that it cannot have effect if it be so general as a will-if it prove the decedent's intent to make a nuncupative will of all his personal estate, exclusive of particular things, saying, "I give you all the plate and goods in this house, or if I die all are yours," and delivering nothing. Ward v. Turner, 2 Ves. sen. 438. The distinction

between a donatio causa mortis and a nuncupative will is that the first is claimed against the executor and the other from the executor. 1 Sim. & Stu. 239.

As to the first the civil law is received in England only in a case of delivery, or what that law calls traditio. Swinb. part 1, § 6, 7; Drury v. Smith, 1 P. Wms. 404; Lawson v. Lawson, Id. 441, 2 Ves. jr. 120, 21, 4 Brown's C. R. 286; Miller v. Miller &c. 3 Id. 357, 8. Delivery is as necessary to establish a donatio causa mortis as any other gift. Smith v. Smith, 2 Str. 955. The general course of decision does not sustain Spratley v. Wilson, 1 Holt 10, 3 Eng. Com. Law Rep. 7. The decedent must part with the possession of the thing given. Barker v. Barker's adm'r, 2 Grat. 344; Miller & wife v. Jeffress &c. 4 Id. 472. And he must part with the dominion over it. Hawkins v. Blewitt, 2 Esp. 663. If he meant to retain, during his sickness and until the event of death, complete dominion over it, then there is no valid donatio causa mortis. Reddel v. Dobree, 10 Sim. 244, 16 Cond. Eng. Ch. Rep. 244. Not only must the donee have possession, but there must be a perfect continued possession in him from the time the gift is made till the donor's death. Bunn v. Markham, 2 Marsh. 540, 7 Taunt. 224, 1 Holt 352; 2 Eng. Com. Law Rep. 81, 3 Id. 127.

There is no doubt with respect to a bond that there may be a delivery of it, which will be a valid donatio causa mortis. Snellgrove v. Baily, 2 Ves. sen. 442, 3 Atk. 214; Gardner &c. v. Parker &c. 3 Madd. C. R. 184; Wells v. Tucker, 3 Binn. 366; Gardner v. Gardner &c. 22 Wend. 526; Lee's ex'or v. Boak, 11 Grat. 182. But there was formerly doubt as to the effect of the gift if the bond was secured by a mortgage on land. Richards v. Symes, 2 Atk. 319, 3 Barnard. 90, 2 Eq. Cas. Abr. 617; Hassell v. Tynte, 1 Amb. 318. Sir John Leach decided against the validity of the gift in such a case; considering that the mortgagor might resist the payment of the bond without a reconveyance of the estate; and that the donor would not be compelled to complete his gift by such reconveyance. Duffield v. Elwes, 1 Sim. & Stu. 239, 1 Cond. Eng. Ch. Rep. 120. But his decree was reversed in the house of lords; and the donee was declared entitled to the securities: the bond passing by a delivery thereof, the mortgage-which is a security for the bond-passed as an incident; if the land be in the representatives of the mortgagee, they hold it in trust for the donee. Duffield v. Elwes &c. 1 Bligh N. S. 497, 1 Dow & Clarke 1. In England a distinction has been taken between the delivery of a bond and a note payable to order. Miller v. Mil

ler, 3 P. Wms. 358. Lord Hardwicke recognized this distinction in the case wherein he held that a gift of South sea annuities would not be effectuated by the delivery of receipts therefor; that the thing could not be given by the delivery of such a symbol. Ward v. Turner, 2 Ves. sen. 442, 1 Dick. 170. Lord Loughborough held that money in a banker's hands did not pass by the delivery of a draft on the banker. Tate v. Hilbert, 2 Ves. jr. 111, 4 Brown's C. R. 286. His opinion was also against the validity of a gift of a promissory note. S. C.; 1 Madd. C. R. 182, 3. The court of appeals of Maryland, recognizing these cases, has held there was not a valid gift of bank stock by the delivery of a certificate therefor with an endorsement thereon of the endorser's name; the transfer on the books of the bank not having been effected in the donor's lifetime. Pennington v. Gittings, 2 Gill & J. 208. That court has also held that a promissory note payable to order cannot be the subject of a donatio causa mortis. Bradley & wife v. Hunt adm'r of Jack, 5 Gill & J. 54. In Massachusetts it is held that the donor's own promissory note. payable to the donee cannot be the subject of such a donation. Bowers v. Hurd, 10 Mass. 436; Parish v. Stone, 14 Pick. 204. These decisions in Maryland and Massachusetts, in the case of the note, are in accordance with what is still regarded as the English rule. Holliday v. Atkinson, 8 Dow & Ry. 163, 5 Barn. & Cress. 501, 11 Eng. Com. Law Rep. 286. A different rule is established in New York. The courts of that state hold that a gift of a note as well as of a bond is a symbolical delivery of the debt, and all the delivery of which the subject is capable. Wright v. Wright &c. 1 Cow. 598; Coutant v. Schuyler &c. 1 Paige 316.

In view of the rights of an assignee (of a bond, note or writing not negotiable) under the Virginia statutes cited ante, p. 261, 2, the court of appeals of this state holds that a note or other writing is as proper a subject of a valid donation as a bond; it also considers that a donation of a debt to the debtor himself is entitled to at least as much favour as a donation of the debt to a third person. Lee's ex'or v. Boak, 11 Grat. 182.

3. Where the claim is by a legatee or distributee.

It is not enough to shew the will of a decedent giving to the plaintiff the property sued for. There must be proof that the decedent was the owner of the property so bequeathed, and that his personal representative has assented to the legacy. Sims ads. Brock, 1 Spears 49; Hairston v. Hall, 3 Call 218;

Royall v. Eppes, 2 Munf. 478. After such assent, the decedent's property in the thing bequeathed-notwithstanding he was out of possession at the time of his death-vests in the legatee, and he may have an action at law for the recovery of the legacy against the executor, or a stranger, as the case may be. Smith & wife v. Townes's adm'r, 4 Munf. 193. The assent of the personal representative to the first taker's possession and enjoyment of the legacy is an assent to the remainder-man. Lynch v. Thomas, 3 Leigh 682; Acheson v. McCombs, 3 Iredell C. R. 554; Frazer's adm'r v. Bevill &c. 11 Grat. 16.

There may be an action by a distributee of an intestate. By consent of the guardian of the only child of an intestate, his widow and administratrix with the moneys of the estate, purchased slaves. After her second marriage, she and her husband brought forward these slaves as part of the estate, and they and the guardian attended the allotment and division of these and other slaves made by commissioners under an order of court; and the division was returned and recorded. Of the slaves so purchased, one allotted to the widow for life was sold by the husband absolutely, and recovered from his vendee in an action brought after the wife's death, by the Hunter v. Jones, 6 Rand. 541.

child.

CHAPTER XLIV.

ACTION FOR GOODS CLAIMED UNDER Owner's sale or consign

MENT.

1. How property may vest in vendee by parol contract.

At common law though delivery is essential to the parol gift of a chattel, a sale is good without it. 2 Bl. Com. 448. The North Carolina acts of 1784 and 1792, c. 225, § 7, and c. 263, respecting sales of slaves are intended for the benefit of creditors and purchasers alone. Knight v. Thomas, 1 Hay. 289. As between the parties, a bill of sale need not be attested or registered. Cutlar v. Spillar, 2 Hay. 61. There need be no writing at all. Rhodes v. Holmes, 2 Hawks. 193. The sale of a slave is good by parol. Bateman v. Bateman, 2 Murph. 97; Cotton v. Powell, 2 Law Repos. 431. The vendee paying the price according to the contract of sale, the