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NOBLE v. SMITH.
SUPREME COURT OF New York. 1806.

[Reported 2 Johns. 52.] This was an action of trespass for breaking and entering the close of the plaintiff, cutting down, taking and carrying away the wheat in the straw, which was there standing, and converting the same to his own use.

The cause was tried at the Rensselaer circuit in May, 1806, before Mr. Chief Justice Kent. The plaintiff proved that he was put into possession of the locus in quo in March, 1805, by the sheriff of Rensselaer county, by virtue of a writ of habere facias possessionem, issued on a judgment in ejectment against one Hallett, and that he continued in possession to the time of the trespass. At the time the sheriff put the plaintiff in possession, he did not remove the goods out of the house of Hallett. It was also proved that the defendants and their servants in July, 1805, broke and entered the same close, and there cut down and carried away, though forbidden by the plaintiff's overseer, near two hundred bushels of wheat in the straw. A witness for

John Hill, the principal of the plaintiff, above two years before the plaintiff was put into possession. That two of the defendants were step-sons of Hallett and lived in his family. That after Hallett was

Baron Parke, afterwards Lord Wensleydale, in the case of Ward v. Audland, 16 M. & W.862, 871, not merely dissented from that proposition, but distinctly expressed his opinion that it was not law. That was so clearly also the opinion of so eminent a judge as Mr. Justice Maule in another case (Lunn v. Thornton, 1 C. B. 379) that I think I may take it now that the true view of the law is this. The question to be determined is not whether there has been an actual handing over of property manually, but whether, looking at all the surrounding circumstances of the case, and looking particularly at the nature and character of the chattel which is proposed to be given, there has or has not been a clear intention expressed on the part of the donor to give, and a clear intention on the part of the recipient to receive and act upon such gift. Whenever such a case should arise again, I am confident that that would be the basis of the decision of a court of common law, and, of course, the same result would follow in a court of equity." Per POLLOCK, B. In Re Harcourt, 31 W. R. 578, 579.

"It is contended for the trustee that change of possession from the donor to the donee must be shewn, and that no property passes so long as the subject of the gift remains in the possession of the donor: Irons v. Smallpiece, 2 B. & A. 551, and Shower v. Pilck, 4 Ex. 478. On the other hand, it is said that the principle laid down in those two cases goes too far, and has been disapproved of by Parke, B., in Ward y. Audland, 16 M. & W. 871, by Crompton, J., in Winter v. Winter, 4 L. T. N. S. 639, and by Pollock, B., in In Re Harcourt, 31 W. R. 578. I am of opinion that it is going too far to say that retention of possession by the donor is conclusive proof that there is no inmediate present gift; although, undoubtedly, unless explained or its effect destroyed by other circumstances, it is strong evidence against the existence of such an inten. tion." Per CAVE, J., In Re Ridgway, 15 Q. B. D. 447, 449.

dispossessed he was sued and taken on execution for rent due to Hill. The witness applied to the plaintiff to let Mrs. Hallett have some of the wheat then growing on the premises, for seed ; and the plaintiff told the witness that “ he would give the wheat growing to the defendants, the Smiths, for the support of themselves and Mrs. Hallett, and would procure a written surrender to be drawn up for Hallett to execute." The Smiths afterwards requested the plaintiff to give them a writing for the wheat, which the plaintiff refused to do, saying “ that he would reserve it for them if he should demise the premises to any other person.” The Smiths were relations of Hill, who requested them to repair the fence in the autumn, round the field in which the wheat was growing. Another witness stated that the plaintiff, in October, 1805, told him that he had given the wheat to the Smiths, but that he had revoked the gift on account of some offence they had given him. Something was said of a condition annexed to the gift, but what it was did not clearly appear.

The judge charged the jury that there was sufficient evidence of a valid gift of the wheat, and which was not revocable by the plaintiff. The plaintiff, therefore, submitted to a nonsuit.

A motion was now made to set aside the nonsuit, and for a new trial for the misdirection of the judge.

Henry, for the plaintiff.
Woodworth, Attorney-General, for the defendants.
Van Vechten, in reply.
KENT, Ch. J., delivered the opinion of the court.

This case presents the following questions : 1. Can property in corn growing be transferred by gift? 2. Is there here the requisite eridence of such a gift?

After a consideration of this case I am satisfied that the opinion which I gave at the circuit upon the trial of this cause was incorrect.

Lord Coke is reported to have said in Wortes y. Clifton, 1 Rol. Rep. 61, that by the civil law a gift of goods was not valid without delivery, but that it was otherwise by our law. This is a very inaccurate dictum, and the difference between the two systems, is directly the reverse. By the civil law, a gift inter vivos, was valid and binding without delivery ; (Inst. lib. 2, tit. 7, § 2. Code lib. 8, tit. 54, 1. 3, 1. 35, $ 5) but at common law it is very clear, from the general current of authorities, that delivery is essential to give effect to a gift. Bracton, de acq. rerum dom. lib. 2, fo. 15, b. 16, a. Noy, 67, Str. 955, Jenkins, 109, 2 Black. Comm. 441. In the analogous case, also, of gifts, causa mortis, it was held by Lord Hardwicke in the case of Ward v. Turner, 2 Vesey, 431, where the subject underwent a very full discussion, that a delivery was necessary to make the gift valid ; and, accordingly, that a delivery of receipts for South Sea annuities, was not a sufficient delivery to pass these annuities by that species of gift.

Delivery in both kinds of gift is equally requisite, on grounds of public policy and convenience, and to prevent mistake and imposition.

If delivery be requisite, there was none in the present case. The land, at the time of the alleged gift, was in possession of one Hallett, and not of any of the defendants, to whom the gift is said to have been made; and before the wheat was ripe the plaintiff recovered the possession of the land by due course of law. Here was not even an attempt at a symbolical delivery, and giving the testimony the strongest possible construction in favor of the defendants, it amounted to nothing more than saying, I give, without any act to enforce it. A mere symbolical delivery would not, I apprehend, have been sufficient. The cases in which the delivery of a symbol bas been held sufficient to perfect the gift, were those in which it was considered as equivalent to actual delivery, as the delivery of a key of a trunk, of a room or warehouse, which was the true and effectual way of obtaining the use and command of the subject. 2 Vesey, 442–3 ; 4 Brown, 286 ; Toller's Law of Exc., 181–2. I do not know that corn, growing, is susceptible of delivery in any other way than by putting the donee into possession of the soil; but it is not necessary to give any opinion at present to that extent; nor do the court mean to do so. It is sufficient to say that there was no evidence of delivery in the present case, and, that to presume one we must go the whole length of the example given in the Roman law where the buyer is supposed to take possession of a large immovable column by his eyes and his affections, oculis et affectu. Dig. 41, 2. 1. 21. The courts of equity seem to have adopted the true rule in their decisions on the donatio causa mortis, in which they hold that the delivery must be actual and real, or by some act clearly equivalent.

The opinion of the court therefore is, that the nonsuit be set aside and a new trial awarded with costs, to abide the event of the suit.

New trial granted.

SECTION III.

ANNUITIES.

Note. — As a general rule, choses in action are not transferable at common law, though often made so by statute. Most of the law concerning the transfer of Legal Obligations and Privileges is best considered with other topics or in other courses; 6. G., Covenants running with the land (dealt with hereafter in connection with Easements and the transfer of Real Estate), Wills and Administration, Bills and Notes, Patents and Copyrights, Stock in Corporations, etc.

GERRARD v. BODEN.
COMMON PLEAS. 1621.

[Reported Hetl. 80.] An annuity was brought by Gerrard against the parson of B. And the plaintiff counts, That the said parson granted an annuity of 401. pro bono consilio suo imposter. impenso, for term of life of the said parson. And for 301. of arrearages this action was brought. Finch, thought the count not to be good. And first it is to be considered, if that annuity might be assigned and granted over or not. And as I think, it cannot. For an annuity is not but as a sum of mony, to be paid to the grantee by the grantor. And not at all to the realty, if the land be not charged by express words in the same deed. And to prove it, if a man grant an annuity to me and my heirs, without naming of my heirs, if the annuity be denied, it is gone; because my person is only charged with the annuity, and not the land. So if a man grants to you the stewardship of his mannor of D., and to your heirs, you cannot grant that over. And so of a bayliwick. But peradventure it may be said, that an annuity may be granted over in this case, because in the habendum it is said to the assignees of the grantee. But that is nothing to the purpose, as I think. For I take a difference when a thing comes in the habendum of a deed which declares the premises of the deed, for there it shall be taken effectual, but otherwise not. As if lands be given to a man and his heirs habendum sibi & hæred. de corpore suo procreat; that is a good tayl. But if a thing comes in the hubend. which is repugnant to the premises of the deed, and to the matter of the thing which is given by the deed, then the hubend. is void for that parcel. As in the case at bar, it is meerly contrary to the nature of the annuity to be assigned over to another. And there is no remedy given for it but an action; and it is common learning that a thing in action cannot be assigned over unless it be by the grant of the King. Also by their declaration they have acknowledged it to be no more than a chose in action. Then a rent-seck for which he had not any other remeds but an action after seisin. For he said that he was seised in his demesn as of franktenement of the rent aforesaid. Then it ought to be a rent-seck; for of no other rent can a man be seised in his demesn, because they lye in prend. as of advowsons common for years, and of estovers. And I will not agree that difference put by Littleton in his book to this purpose. For of such things which lye in manual occupation or receipt, a man sball not say that he was seised in his demesn as of a rent, because it lyes in the prend. And in the 21 E. 4 the case is doubtful. And Crawley of the same opinion. Hitcham of the contrary. And at another day, Hutton [J.] said that the parties were agreed. Hitcham. We desire to have your opinion notwithstanding, for our learning. Hutton said : We are agreed that the annuity may be granted over, and it is not so bieten much in the personalty as hath been argued by Finch. And in some books it is said that a release of personal actions is not a plea in a writ of annuity.

SECTION IV.

TRANSFER OF EQUITABLE RIGHTS.

NOTE. — Equitable Rights are in general freely assignable. The exceptions are con. sidered in this section, so far as those exceptions are based on grounds of public policy. How far the transfer of an equitable right can be restrained by the person creating it, will be considered hereafter.

A. Public Officers.

BARWICK v. READE.
COMMON PLEAS. 1791.

[Reported 1 H. Bl. 627.] The defendant, who was a lieutenant of marines, assigned his full par to the plaintiff, in trust, first of all to pay and satisfy himself (the plaintiff) an annuity of £20 per annum, and then to pay over the surplus to the defendant, and also gave a bond and warrant of attorney as a further security. In the last term a rule was granted to show cause why the deed of assignment, bond, and warrant should not be given up to be cancelled on several grounds, the most material of which was, that the full pay of a military officer could not be legally assigned. When the motion was made, the court intimated a very clear opinion that such an assignment was illegal, it being contrary to the policy of the law that a stipend given to one man for future services, should be transferred to another who could not perform them. However the rule was enlarged till this term, when on the motion of Kerby, Serjt. it was made absolute, no cause being shown, but the court seeming to retain their former opinion.

FLARTY v. ODLUM.
King's BENCH. 1790.
(Reported 3 T. R. 681.]

On a rule to show cause why the defendant, an insolvent debtor, should not be discharged out of custody, the only question was whether or not his half-pay as a lieutenant in a reduced regiment of foot should be included in his schedule delivered in under the Lords' Act.

Marryat, who opposed the discharge, stated that several cases had been mentioned at Serjeant's Inn where this motion was first made.

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