His Honor, thinking that these facts formed no bar to the action, judgment was entered for the plaintiff, from which the defendant appealed. The order for the delivery of the bond is clearly not good as a payment or satisfaction of the debt. It resembles more the gift of the bond itself; but this it cannot be, for want of a delivery, which is essential to a gift. Without a delivery, the transaction is a mere contract or agreement to give, which, being without consideration, cannot be enforced. If the person on whom the order was drawn had delivered the bond, in pursuance of the order, before it was countermanded, the gift would have been complete. But the owner, or (310) his representative, might countermand it, which was done in the present case.
The only authority I have seen which in any measure supports a gift without delivery is taken from Brooke's Abridg., Trespass, pl., 303. There it is said, if A, in London, the owner of goods which are in York, give them to B, and before B has obtained the actual possession a stranger take them, B may maintain trespass for them. If this be law, it is on the ground that the action is brought against a stranger, without any revocation on the part of the donor.
The executor, by resuming the actual possession and bringing the present action, has clearly revoked the gift. Withers v. Lys, 3 Ser. Low., 9.
PER CURIAM. Judgment affirmed.
Approved: Adams v. Hayes,