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(Reported 51 N. H. 571.) LADD, J. The agreed statement of facts upon which the former opinion in this case was rendered (50 N. H. 212), showed that after this plaintiff had paid the judgment recovered against him for the original taking of the posts, &c., this defendant entered upon the plaintiff's premises and carried them away again. The defendant now offers to prove that his taking was before that judgment was paid, though after it waş rendered ; and we are called on to decide that the plaintiff cannot recover the value of the property which he thus paid for in paying that judgment, because it was taken from him by the defendant before instead of after the payment.

The defendant's position, in a word, is this: he had changed his security for the conversion of his property from an unliquidated claim for damages for a tort into a judgment for its value. Without releasing or surrendering that judgment, he broke and entered the plaintiff's close, and took away the property for which he held the judgment; and having thus secured the property, he enforced payment for its value by collecting the judgment. He now claims that he is not liable for its value in this action, because the property did not pass to the defendant until the judgment was paid, that is, after his taking.

If there were no other way of meeting this position, it would doubtless furnish a strong argument in favor of the former doctrine, that it is the judgment and not the satisfaction which passes the property. Adams v. Broughton, 2 Stra. 1078; and see cases collected in Buckland v. Johnson, 15 C. B. 145. Such is not the law, however, in this State Hyde v. Noble, 13 N. H. 494 — and probably not now in England; Brinsmead v. Harrison, Law Rep. 6 C. P. 584; s. c. Law Rep. 7 C. P. 547; and the aid of no such doctrine need be invoked.

In the former opinion it was said that a satisfaction of the judgment by this plaintiff passed the title of the property to him to take effect by relation from the time of the conversion.

That remark was not strictly called for as the case then stood ; but we have no doubt it was correct, and it fully meets the case as now presented. 2 Par. Bills and Notes, 436; 1 Hilliard on Torts, 51 ; Buckland v. Johnson, sup.; Hepburn v. Sewell, 5 Har. & Johns. (Md.) 211. In the latter case the point was directly raised and distinctly decided by the court. The remarks of Dorsey, J., in delivering the judgment of the court, are so much in point that I quote a portion of

1 The case is sufficiently stated in the opinion.

them. He says, " It must be borne in mind that the plaintiff, in an action of trover, compels the defendant to become a purchaser against his will; and from what period does he elect to consider the defendant as a purchaser, or as answerable to him for the value of the thing converted? He selects the date of conversion as the epoch of the defendant's responsibility, and claims from him the value of the property at that period, with interest to the time of taking the verdict. The inchoate right of the defendant as a purchaser must therefore be considered as coeval with the period of conversion, and this right being consummated by the judgment and its discharge, must, on legal and equitable principles, relate back to its commencement."

This view disposes of the defendant's case ; for if, upon payment of the judgment, the property in the posts, &c., passed absolutely to the plaintiff, and his title thereupon took effect by relation from the date of the conversion, he is clearly entitled to recover their value in the present suit.

We do not undertake to say that there may not be cases where this doctrine would not apply. All we decide is, that it does apply in a case like the present.



Note. — The passing of personal property on death, either testate or intestate, is dealt with later under the title of Wills and Administration. The important subjects of Sales and Mortgages are treated in separate courses.


King's BENCH. 1819.

[Reported 3 B. & Ald. 551.] TROVER for two colts. Plea, not guilty. The defendant was the executrix and residuary legatee of the plaintiff's father, and the plaintiff claimed the colts, under a verbal gift made to him by the testator twelve months before his death. The colts, however, continued to remain in possession of the father until his death. It appeared, further, that about six months before the father's death, the son having been to a neighboring market for the purpose of purchasing hay for the colts, and finding the price of that article very high, mentioned the circumstance to his father; and that the latter agreed to furnish for the colts any bay they might want at a stipulated price, to be paid by the son. None, however, was furnished to them till within three or four days before the testator's death. Upon these facts, Abbott, C. J., was of opinion, that the possession of the colts never having been delivered to the plaintiff, the property therein had not vested in him by the gift; but that it continued in the testator at the time of his death, and consequently that it passed to his executrix under the will; and the plaintiff was therefore nonsuited.

1 See Fox v. Northern Liberties, 3 W. & S. 103. Cf. also Barb v. Fish, 8 Blackf. 481 ; Lovejoy v. Murray, 3 Wall. 1. “If one declares in replevin for cattle with an adhuc detinet, and defendant has judgment against him for damages, by payment thereof the property of the distress shall be vested in him." Per Holt, C. J., in More v. Watts, 12 Mod. 424, 428.

Gurney now moved to set aside this nonsuit. By the gift, the property of the colts passed to the son without any actual delivery. In Wortes v. Clifton, Roll. Rep. 61, it is laid down by Coke, C. J., that, by the civil law, a gift of goods is not good without delivery; but, in our law, it is otherwise ; and this is recognized in Shepherd's Touchstone, tit. Gift, 226. Here, too, from the time of the contract by the father to furnish hay for the colts at the son's expense, the father became a mere bailee, and his possession was the possession of the son ; and an action might now be maintained by the defendant, in her character of executrix, upon that contract, for the price of the hay actually provided.

ABBOTT, C. J. I am of opinion, that by the law of England, in order to transfer property by gift there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee. Here the gift is merely verbal, and differs from a donatio mortis causa only in this respect, that the latter is subject to a condition, that if the donor live the thing shall be restored to him. Now, it is a well-established rule of law, that a donatio mortis causa does not transfer the property without an actual delivery. The possession must be transferred, in point of fact; and the late case of Bunn v. Markham, 2 Marsh. 532, where all the former authorities were considered, is a very strong authority upon that subject. There Sir G. Clifton bad written upon the parcels containing the property the names of the parties for whom they were intended, and had requested his natural son to see the property delivered to the donees. It was therefore manifestly his intention that the property should pass to the donees; yet, as there was no actual delivery, the Court of Common Pleas held that it was not a valid gift. I cannot distinguish that case from the present, and therefore think that this property in the colts did not pass to the son by the verbal gift; and I cannot agree that the son can be charged with the hay which was provided for these colts three or four days before the father's death; for I cannot think that that tardy supply can be referred to the contract which was made so many months before.

HOLROYD, J. I am also of the same opinion. In order to change the property by a gift of this description, there must be a change of possession : here there has been no change of possession. If, indeed, it could be made out that the son was chargeable for the bay provided for the colts, then the possession of the father might be considered as the possession of the son. Here, however, no hay is delivered during a long interval from the time of the contract, until within a few days of the father's death; and I cannot think that the hay so delivered is to be considered as delivered in execution of that contract made so long before, and consequently the son is not chargeable for the price of it.

Best, J. concurred.

ABBOTT, C. J. The dictum of Lord Coke in the case cited must be understood to apply to a deed of gift ; for a party cannot avoid his own voluntary deed, although he may his own voluntary promise.

Rule refused.

1 A gift of anything without a consideration, is good ; but it is revocable before the delivery to the donee of the thing given. Donatio perficetur possessione accipientis. This is one of the rules of law." Jenk. Cent. 109.

"This reasoning I have gone upon is agreeable to Jenk. Cent. 109, case 9, relating to delivery to effectuate gifts. How Jenkins applied that rule of law he mentions there, I know not; but rather apprehend he applied it to a donation mortis causa ; for if to donation inter vivos, I doubt he went too far.” Per LORD HARDWICKE, C., in Ward v. Turner, 2 Ves. Sen. 431, 442.

“In M. 7 E. 4, fo. 20, pl. 21, it is however said, 'Noto, that it was held by Choke (Chief Justice of C. P.), and others of the justices, that if a man make a deed of gift of his goods to me, that is good and effectual without delivering the deed to me, until I disagree to the gift; and that should be (covient estre) in a court of record,' &c. Quære, whether the resolution of the judges may not have been confined to the first proposition, the second, and more disputable, proposition, printed in italics, being added by the reporter.

“With respect to gifts of chattels inter vivos, the rule appears to be this : Gifts by parol, i, made verbally, or in writing without deed, (as to which, see 2 Roll. Abr. 62. ; 14 Vin. Abr. 123), are incomplete, and are revocable by the donor, until acceptance, that is, until the donee has made soine statement, or done some act, testifying his acquiescence in the gift ; but gifts by deed are complete, and irrevocable by the donor, upon the execution of the deed, and vest the property in the donee until the latter disclaims, which he can do at any time before he has made any statemen:, or done any act, inconsistent with such disclaimer, (which disclaimer, notwithstanding the above case in M. 7 E. 4, may, by what appears to be the better opinion, be made in pais, and that, by parol.) After acceptance of the gift by parol, and until dis. claimer of the gift by deed, the estate is in the donee without any actual delivery of the chattel which forms the subject of the gift ; see Perkins, Grant, 57; Com. Dig. tit. Biens, (D 2.)

"By the Code Civil, No. 938, ‘A donation inter vivos, duly accepted, shall be per. fect by the sole consent of the parties ; and the property in the articles so given shall be transferred to the donee, without any other delivery being necessary.'

“ But where a donatio mortis causa is made, the property does not vest without delivery ; Smith v. Smith, 2 Stra. 955; Bunn v. Markham, 2 Marshall, 532. Reddel v. Dobree, 10 Simons, 244. In Irons v. Smallpiece, 2 B. & Ald. 551, it was ruled at Nisi Prius by Abbott, J., that a delivery was necessary to complete a gift inter vivos ; and upon a motion by Gurney to set aside the nonsuit, the court refused to grant a rule, under an impression that the point had been decided in Bunn v. Markham, the distinction between donationes inter vivos and donationes mortis causa, (which runs through the previous cases,) not being adverted to." Note by Sergeant Monning to London & Brighton Railway Co. v. Fairclough, 2 Man. & G. 691.

“I have always thought Lord Tenterden's opinion in Irons v. Smallpiece very remarkable ; he speaks of a 'deed or instrument of gift,' leaving it to be inferred that the assignment might be otherwise than by deed.” Per MAULE, J., in Lunn v. Thorn. ton, 1 C. B. 379, 381, 382.

“In Irons v. Smallpicce it was held that the verbal gift of a chattel, without actual delivery, does not pass the property to the donee, Abbott, C. J., saying : ‘By the law of England, in order to transfer property by gift, there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee.' That is not correct." Per PARKE, B., in Ward v. Audland, 16 M. & W. 862, 870, 871.

“It has, indeed, been held that a gift is not binding unless it be by deed, or the subject of the gift be actually delivered ; but if the point were res nova, it would perhaps be decided differently." Per PARKE, B. in Oulds v. Harrison, 10 Exch. 572, 575.

"Actual delivery of the chattel is not necessary in a gift inter vivos. In the case of a donatio mortis causa, there is a reason for requiring some formal act. It is sufficient to complete a gift inter vivos that the conduct of the parties should show that the ownership of the chattel has been changed. Although Irons v. Smallpiece and Shower v. Pilck have not been overruled, the subsequent cases, to speak familiarly, have hit them hard.” Per CROMPTON, J., in Winter v. Winter, 4 L. T. N. S. 639, 640.

"My brother Manning in a learned note to the case of The London and Brighton Railway Company v. Fairclough, comments upon that decision (Irons v. Smallpiece) suggesting that sufficient weight was not given to the fact of acceptance by the donec of the gift. He certainly cites authorities of weight upon the subject.” Per WILLIAMS, J., in Martin v. Reid, 31 L. J. N. S. C. P. 126, 127.

"I do not think that we are called upon, at present, to say whether we should overrule the case of Irons v. Small piece, or whether a gift not made by deed, and unac.

companied by transfer is invalid in law. Whenever that question shall come before TR me, I feel bound to say I shall require a much higher authority than the note of an

editor, however learned or eminent, to induce me to overrule a decision of Lord Tenterden and his brethren in the Court of Queen's Bench.” Per Kelly, C. B. in Douglas v. Douglas, 22 L. T. N. S. 127, 129.

“ With respect to the two pictures by Canaletto and Sir Joshua Reynolds, it is admitted that they were Danby property, and the only question which arises as to them is whether during her lifetime Mrs. Harcourt disposed of these pictures by way of gift to her sister Mrs. Holwell. It is argued that she could not have disposed of them without some evidence of a gift, and that the evidence adduced by the defendants is of no avail because there has been no actual delivery, and there is no evidence of a deed.

“Now, if this case with respect to the two pictures – depended upon the rule of law laid down in some of the older books, I could not certainly accede to the proposi. tion generally that the actual delivery of a chattel is necessary to create a good gift inter vivos. I should begin by saying that a very great many cases, not unnaturally, have turned upon the question what is a good donatio mortis causa. One of those cases is the case of Ward v. Turner, where Lord Hardwicke entered into the question very fully, and certainly, as was to be expected, his mind was not so much impressed by the common law authorities as by the authorities which had grown up through the civilians of this country by the application of what is known as the civil law. That has clearly no application to the present case. The civil law never was any part of the conimon law of England, although the common law yielded to it in that portion of the law of this country which was administered in the ecclesiastical courts. The civil law has also been reco ized in other respects, and especially in cases connected with the mar: riage laws of this country, some of them decisions of the House of Lords. The question then is, What is the common law? I have been consulting the older authorities, and although, no doubt, it is often said that actual delivery is necessary, yet there are other cases where, although there has been no deed, the contrary has been laid down.

“The modern law on the subject is founded on Lord Tenterden's judgment in Irons v. Smallpiece. I can only say that that case has been before the courts on the common law side of Westminster Hall for a great many years, and I cannot myself acquiesce in the view of the law there laid down. I am not bound by that decision, because

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