— I concur with the Chief Justice, in affirming the judgment of the Circut Court; but my judgment is influenced by reasons, differing in some respects, with those advanced by him.
■ It is admitted by all, that delivery is essential to the validity of a gift by parol of a personal chattel, yet there is much contrariety of decision, as to the facts which make out a case of delivery. I hold it necessary to constitute a delivery, when the term is used in connexion with a gift by parol, that the chattel given, should be divested of the dominion of its former owner. It is clear, I think, in this case, that the dominion of the father was never divested, but always continued as it was before the supposed gift/ ' •
I admit a delivery may be proved by the admissions of those who are interested ; therefore, the declaration of the father, that he had given the slave to his daughter, would be evidence from which, a delivery might be inferred in the absence of other proof. Here, however, the facts show that the dominion of the father remained and was exercised at all times, until his death. The inference arising from his declaration is completely destroyed; and there was nothing but this in the case, to *123have warranted the jury in finding for the plaintiff. As the entire evidence is presumed to come from that side, the defendant properly asked, and the Court gave the instructions, that admitting the whole of the evidence to be true, it did not make out a gift. )
ORMOND, J.— It is not my habit to dissent from the opinion of the majority of the Court, if I merely entertain doubts of its correctness; but in this case, I feel satisfied the decision is rested on a principle which cannot be sustained.
The evidence in the Court below was, in substance, that at a public sale at his own house, the father of the plaintiff, having sold a negro girl, induced the purchaser to rescind the sale to enable him to give the slave to his daughter. The sale being rescinded, he called the negro into the yard before him, and the plaintiff to the door of the house, and then called on the persons present to take notice that he gave the slave to his daughter Mary, who was then about six years old. His daughter lived with him until his death. The father employed the slave so given, as he did his other slaves, down to the time of his death, but had frequently, before the public sale, spoken of, declared his intention to give the slave to his daughter Mary; and a short time before his death, speaking of this transaction, said he had given the slave to the plaintiff. The Court charged the jury, that these facts and circumstances did not in law amount to a gift.
There can be no doubt, that to constitute a pure gift of personal property, delivery of the thing is an essential ingredient of the act; and if a delivery cannot be concluded out of the facts here detailed, the gift was not consummated.
It will not be denied, that the fact of delivery is, like every other fact, susceptible of being proved by inference from other facts'and circumstances. Thus, if the child to whom this property was thus given, had resided elsewhere than at the house of the donor, and the slave was afterwards found residing with "her, the influence would have been irresistible, that there was a delivery in fact. On the other hand, if the negro had remained with her former master, no such inference could fairly be made from the facts supposed. But in this case, the child *124living with her father the donor, the property was where it should be, to be in her possession, as much as a child could have possession of property, if it had been given to her by a stranger.
It rarely happens, I apprehend, that in any case of the gift of a slave, the senseless mummery is gone through of placing the hand of the slave in the hand of the donee. The gift is usually manifested by word, and the delivery inferred from the subsequent possession by the donee. The utmost then which can be said on this part of the case, adverse to the plaintiff, is that the fact of delivery was doubtful. Conceding this to be correct, for argument sake, is there no other fact which, thrown into the scale, will make it preponderate in favor of the donee ? I think there is. The father a short time before his death, said he had given this slave to the plaintiff. What is there in this case to prevent this admission from having the weight it is entitled to ? The father certainly knew what he had done, and was speaking against his own interest; and unless some reason can be discovered, which has not presented itself to my mind, which will disarm it of its influence, it is conclusive to shew that the gift was perfect.
This admission is also important in another point of view. The majority of the Court consider, that the fact of the father continuing to exercise control and dominion over the property, after the supposed gift, is conclusive to shew that there was no delivery. It is true that a gift, as it transfers to the do-nee the possession, puts an end to the right of the donor, to control it afterwards; when therefore, after airy supposed gift, if the donor is found exercising dominion over the subject of the gift, it does not prove that no gift was in fact made; because such control may be exercised by the permission of the donee, or it may be a usurpation of his rights. For I take for granted, that a gift, accompanied by delivery, is as absolute and unconditional a transfer of property, as a bona fule sale would be. But as such a state of things would not be the usual consequence of'a gift, it would doubtless,cast on the do-nee, the necessity of explaining the apparent incongruity. This an adult might do, by showing that the subsequent possession was by his permission, or was an invasion of his rights — • *125and in this case is effected by the proof, that the donor was ah infant incapable of attending to her own interests, or of apprehending the consequence of such acts; and, if possible, still more conclusively, by the admission of the donor, that the slave did not belong to him.
From the manner in which the charge was given, it must be considered as in the nature of a demurrer to the evidence, otherwise it cannot be supported; and I think, from the solemnity and publicity of the act — from the fact that the donee was an infant residing with her father, the donor — and especially from the donor’s subsequent admission, the jury were not only authorized, but were bound to infer a valid gift of the property. I might add, that if the facts, detailed in this case, do not constitute a gift, it is difficult to say in what manner a father could give property to his child.
I consider that this question was in effect determined, when t.his case was previously before this Court. [8 Porter, 449.] The Court below had charged the jury “ that a delivery and change, of possession was necessary to the validity of a gift, and that if there had been no such change of possession, the gift was absolutely void.” This Court reversed the judgment, on the ground, that the jury were probably misled by the stress which the Court laid on the necessity of a change of the possession. “ The gift,” this Court then said, “ was complete at the instant of delivery; and if any argument had been urged against the fact of delivery, because the slave remained with the donor, her former master, the Court should have left it to the jury to determine, whether that fact was not explained by its being also the home of the donee.” Now, unless the jury could have inferred, that the child living with her father was in possession of the slave, the judgment of the Court should have been affirmed.
The facts of the case are not varied, and, from the nature of the charge, we have to pass on them; and, as we then held that the control of the father might be explained by the fact that it was also the home of the donee, such is the law of the case now.
I consider the case of Grandiac v. Arden, 10 Johns’ Rep, 298. cited in the opinion of the Court, an authority in favor of *126the view I am taking. In that case as in this, there was no proof of a delivery in fact of the subject of the gift, which was a lottery ticket. ■ The proof oh that head was, that a father, who had purchased some lottery tickets, wrote the names of his children upon them; they were not present at the time. One of the tickets drew a prize, and on being congratulated on his good fortune, he said the money belonged to his daughter, to whom he had given the ticket. Subsequent declarations to the same effect were also proved to have been made by him. The Court held that the acknowledgements of the defendant afforded a reasonable ground from which the jury might infer, that all the formalities necessary to make a perfect gift, were complied with.
I think it is impossible to distinguish this case from the one at bar; the principle involved in both, is precisely the same, as the facts are almost identical. It is therefore my opinion that the Court erred in its charge to the jury.