8 Port. 449 | Ala. | 1839
— It is desirable, that in all cases presented to this court for revision, the points intended to be raised, should be distinctly presented on the record, so as to. leave no room for doubt or misconstruction. In this case, although the point is not presented so clearly
The charge of the court must be considered in connection with the evidence, and thus consclered, there can be no doubt that the jury were misled by it.
It is certain that delivery of possession is an essential ingredient in a gift of personal property. But when the court charged i! Unit a delivery and change of ¡possession was absolutely necessary to the validity of a gift, and that if there had been no such change of possession, the gift was absolutely void the jury were authorised to infer, and no doubt did infer, that the gift was invalid, even if the delivery was proved, because the negro after-wards remained with her former master. The gift 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 circumstance was not explained, by its being also the home of the donee. This, we think, the jury were precluded from doing, by the emphasis which the court seem to have given to the fact of possession in addition to delivery, as being necessary to constitute a valid gift.
The cases of Goodwin vs. Morgan, (1 Stewart’s Rep. 278,) and Frisbey and wife vs. McCarty (1 Stew. & Por. 56,) do not militate, in the slightest degree, against the principles here laid clown. The term “ change of possession,” is a mere paraphrase of the word delivery ; for every delivery, with intent to give, operates a change of possession, and transfers dominion over the subject of the gift to the donee. What facts or circumstances would in
The judgment must be reversed, and the. cause remanded for a new trial, not inconsistent with this- opinion.
