— All the authorities concur in the conclusion, that it is essential to a parol gift of a chattel, that there should be an actual delivery of the thing. [Sewall by his next friend v. Glidden, 1 Ala. Rep. N. S. 52. and cases there cited. Sims v. The Adm’r. of Sims, 8 Porter Rep. 449. Brashear v. Blassingame, 1 Nott & McC. Rep. 223. Noble v. Smith, 2 Johns’ Rep. 52. Linnendale v. Doe & Terhune, 14 Johns’ Rep. 222. Wells v. Tucker, 3 Binney’s Rep. 370.] The only question in the case before us, is, do the facts set forth in the bill of exceptions, shew that the slaves in controversy or either of them, were ever delivered by Brittain Sims the supposed donor to his daughter the plaintiff.
C It is clear that what transpired at the house of the father, oh the day of the public sale, does not amount to a gift. No act *119was then done, which can be regarded as a delivery, or which seems to have been intended as such. The plaintiff, a small girl is called to the door of the house, and the woman Rachel into the yard, when the father declares that, “Rachel was the negro of the plaintiff,” and further “ in presence of you all, I give this negro to my daughter Mary.” This declaration is positive and direct, and if a gift could be perfected by the mere avowal of the wish, intention, and purpose of the owner of property, the fact shewn to the jury, would be entirely satisfactory. But the subject of the gift, the father, the daughter, and the witnesses, all separate, without the dominion of the slave having been parted with, for a single instant in favor of the intended donee.);
But it has been argued for the plaintiff, that if what occurred at her father’s house did not invest her with a right to the property sued for, that his previous and subsequent declarations would warrant the inference, that the gift had at some other time been consummated. To sustain this argument, we have been referred to the case of Grangiac v. Arden, 10 Johns’ Rep. 303. That was an action for money had and received to the use of the plaintiff, to recover a sum of money drawn as a prize in a lottery. It appears that the defendant brought home six lottery tickets, which he said were for himself and wife, and his four children, and he wrote the name of each on the tickets, and put them in his desk. The children were not present at the time. The defendant being afterwards congratulated on his good fortune in drawing a prize, said the ticket belonged to his daughter Eliza, (the plaintiff.) In a subsequent conversation in the family, the son of the defendant said, that Eliza ought to divide the prize with the others, to which the defendant answered, “No, áhe should not divide it. The ticket was her own, and the prize money belongs to her, and she shall have the whole of it, and I will put it in trade for her.” The plaintiff was about eight years old when the prize was drawn, and lived in the defendant’s family until she married about twelve years thereafter. Two or three years before the marriage of the plaintiff, her mother being ill, reminded the defendant of the plaintiff’s prize money, and requested him to take care of it for her, and the defendant replied, “ You know *120the ticket was Eliza’s; the money is hers; and I have kept it in trade for her to a good profit. I will never take a shilling of it, or of the profit; she shall have it all.” It was also proved, by a sister of the plaintiff, that she had frequently heard her father say in their presence, before and since the plaintiff attained her majority, that he had given the ticket to the plaintiff, had indorsed her name thereon, and that the prize money belonged to her.
A verdict was taken for the plaintiff subject to the opinion of the Court, on a case presenting the foregoing facts.
The Court said, that the lapse of time since the transaction took place, ought to be taken into consideration, and induce a more liberal conclusion from circumstances, than should be allowed to more recent transactions. “ The evidence,” say the Court, “ from which the jury have inferred a delivery, is the declarations and acknowledgments of the defendant. And these are numerous, and as full and ample as words could make them. These declarations did not relate to a gift intended to be made; and are not to be viewed in the light of executory promises, to be carried into effect at some future day. But they were confessions that a gift had already been made.” After recapitulating the declarations of the defendant as set out in the case stated, the Court say, “ All these declarations refer to, and recognize a gift, as having been made. They afforded reasonable ground for a jury to infer, that all the formality necessary to make it a valid gift had been complied with, and the right and title of the plaintiff to the money complete and vested ; and that the same was received and held by the plaintiff, for her use and benefit.” And a new trial was accordingly denied.
The case cited, it is believed, was a much stronger one in favor of the donee, than the case at bar. The name of the daughter was written upon the ticket before the prize was drawn; — afterwards the father acknowledged that the money was his daughter’s, and stated he would put it in trade for her. And about ten years after he had received the prize money, stated to his wife during her illness, that he had put the money in trade for their daughter to a good proffit, and that she should have it with all the proffit. Strong as these facts are, the *121Court did not pretend to say that they were proof positive, of a delivery; but merely that they authorized the inference, that it had been made.
The declarations of the father in the case before us, previous to the day of the public sale at his house, amounted only to this, that he intended, not that he had given the slave Rachel to the plaintiff. In the declaration made a short time before his death, it is said that, “ in speaking of the transaction, he stated that he had given the said slave to his daughter, Mary, the plaintiff.” The transaction of which he speaks, must have been the recission of the contract, by which he sold Rachel, and afterwards declared that she was the property of' his daughter. This appears from the order in which the facts are narrated in the bill of exceptions, as well as from the consideration, that there was no other transaction proved. As no delivery was shewn on the day of the public sale, and as the subsequent statement referred to what then occurred, it follows that no delivery can^be intended.
While we should¿wVpleased to give effect to every prudent disposition of property, founded on a valuable consideration, or prompted by natural love and affection, we are constrained to declare, that an ancient and well established rule of law, interposes a barrier to the plaintiff’s recovery. A rule, which (if we had the power to disregard,) a wise policy requires should be upheld.
As, the Court undertook to inform the jury, that such was the defectiveness of the proof, they should find for the defendant, the plaintiff is entitled to occupy a position in this Court, quite as favorable as if the case had been disposed of upon a demurrer, by the defendant, to the evidence. But after making all presumptions in, her favor, which could have been legitimately made by the jury, we cannot say that the Circuit Judge erred in his charge.
In concluding that the gift sought to be established, wants an essential constituent, viz: delivery, we have been influenced by the consideration, that the possession of the slave remained with the father. In Seawell, by his next friend, vs. Glidden, 1, Ala. Rep. N. S. 52, it appeared that the donee was of very tender years when the gift was made, and contin*122ued to reside with the donor, his father, up to the death of the latter, and had not, at the time of that event, attained his majority. The Court held that the gift, having been perfected, by delivery and acceptance, was irrevocable by the donor. That “ the donee, on account of his infancy, was not entitled to actual possession of the slaves, and could do no act to prejudice his rights ; and inasmuch as he could not act in respect to the property, it seems necessarily to follow, that he cannot be injured by an omission to act.” And further, that as the donee had no guardian appointed under the statute, who was authorised to take possession of the slaves, the possesion of the father was the possession of the donee, and not even a badge of fraud. With the law, as there laid down, I am entirely satisfied; but the case at bar, is not at all analogous, for here the gift, as we have seen, was never perfected.
We have only to add, that the judgment of the Circuit Court is affirmed.