not decide the question. The arguments on each side were equally ingenious and inconclusive. Lord Mansfield recommended a compromise, as he said there was no legal principle on which he could decide it. The same question arose again in the prerogative court, in 1793, in Wright v. Sarmuda. The husband, wife and children, all perished together, in a vessel, which foundered at sea; and Sir William Wynne, after a long and learned discussion, held it to be the most rational presumption that all died together, and that none could transmit rights to another. So, again in Taylor v. Diplock, in 1815,b in a like case, Sir John Nicholl assumed, that the parties (who were husband and wife) perished at the same moment; and he could not decide on any survivorship in the case, and consequently granted administration to the representatives of the husband. The English law has hitherto waived the question, and, perhaps, prudently, abandoned, as delusive, all those ingenious and refined distinctions which have been raised on this vexed subject by the civilians. The latter draw

their conclusions from a tremulous presumption *436 resting on the dubious point, which *of the parties,

at the time, under the difference of age or sex, or of vigour and maturity of body, and quickness and presence of mind, was the most competent to baffle and retard the approaches of death.d

a 2 Phillimore, 266. n. Afterwards, in Calvin v. Procurator General, 1 Hagg. Eccl. Rep. 350, Sir John Nicholl held the presumption of law in such a case to be, that the husband survived. b 2 Phillimore, 261.

So, also, in the case of Murray, in the English prerogative court, 1 Curteis, 596, the husband, wife and child perished together by shipwreck, and administration was granted on the husband's effects, as of a widower. And in Satterthwaite v. Powell, Ibid. 705, where husband and wife were drowned at the same time, the property passed 10 the next of kin of the party in whom it was vested, and neither party could claim as survivor. The wife's effects passed to her next of kin, to whom administration was granted. See also, the case of Coys v. Leach, 8 Metcalf, 371.

a This curious question was much discussed in the civil law, and the

presumption as to which was the longest liver, vibrated between parent and child, according to circumstances. (Dig. lib. 34. tit. 5. ch. 10. sec. I and 4, and 23, 24, de Commorientibus.) It was also very ingeniously and elaborately handled in Causes Celebres, tom. iii. p. 412–432; and a num. ber of cases cited. The decisions had not been steady or consistent. M. Talon, the eloquent avocat general, took a distinguished lead in the discussions. The ancient French jurisprudence had nothing fixed on the subject, and continued floating and uncertain, with a very shifting presumption in favour of one or another person, according to age and sex, and manner of the death, until the law was reduced to certainty by the Code Napoleon. (Toullier, Droit Civil Francais, tom. iv. No. 76.) By the Code Napoleon, No. 720, 721, 722, and by the Civil Code of Louisiana, No. 930—933, which has adopted the same provision, when two of the next of kin perish together, without it being possible to be known which died first, the presumption of survivorship is determined by circumstances. If the parties were both under fifteen years of age, the eldest shall be presumed to have survived. If above sixty, the youngest shall be presumed to have survived. If they were between the age of fifteen and sixty, and of different sexes, the male shall be presumed to have been the survivor, provided the ages were within a year of each other. If of the same sex, then the youngest of the two is presumed to have survived.

The cases on this difficult subject in the jurisprudence of the civil law, of the continental nations of Europe, and of England are collected and stated in Burge's Com. on Colonial and Foreign Laws, vol. iv. p. 11–29. The case of Pell v. Ball, on the same subject, occurred in the court of chancery in South Carolina, and was decided in January, 1840. (1 Cheve's Eq. Rep. 99.) The husband and wife both perished with many others in the dreadful destruction of the steamer Pulaski by explosion of a boiler in the night of June 14th, 1838, on her passage from Charleston to New. York. The wise (Mrs. Ball) was seen alive on the wreck for a short time after the explosion, but the husband was not seen after the explosion, Chancellor Johnston decided upon that fact in favour of the survivorship of the wise. There was a ground of probability founded upon positive proof of that fact, superior to any thing founded on arbitrary presumptions, and the decision was no doubt logical and correct.



Title to personal property arising from transfer by act of the party may be acquired by gift, and by contract.

There has been much discussion among the writers on the civil law, whether a gift was not properly a contract, inasmuch as it is not perfect without delivery and acceptance, which imply a convention between the parties. In the opinion of Toullier,a every gift is a contract, for it is founded on agreement; while, on the other hand, Puffendorf had excluded it from the class of contracts, out of deference to the Roman lawyers, who restrained the definition of a contract to engagements resulting from negotiation. Barbeyrac, in his notes to Puffendorf, b insists, that, upon principles of natural law, a gift inter vivos, and which ordinarily is expressed by the simple term gift, is a true contract; for the donor irrevocably divests himself of a right to a thing, and transfers it gratuitously to another, who accepts it; and which acceptance, he rationally contends, to be necessary to the validity of the transfer. The English law does not consider a gift, strictly speaking, in the light of a contract, because

it is voluntary, and without consideration; where*438 as a contract is defined *to be an agreement upon

sufficient consideration to do or not to do, a par

Droit Civil Francais, tom. v. Des Donations Entre Vif's, sec. 4, 5, and n. 1.

Droit Des Gens, liv. v. ch. 3. sec. 10. n. 6.

ticular thing. And yet every gift which is made perfect by delivery, and every grant, are executed contracts; for they are founded on the mutual consent of the parties, in reference to a right or interest passing between them.

There are two kinds of gifts; 1. Gifts simply so called, or gifts inter vivos, as they were distinguished in the civil law; 2. Gifts causa mortis, or those made in apprehension of death. The rules by which they are governed are different, and quite distinct, and they were taken from the Roman law.

1. Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. Delivery is essential, both at law and in equity, to the validity of a parol gift of a chattel or chose in action ; and it is the same whether it be a gift inter vivos, or causa mortis.b Without actual delivery, the title does not pass. A mere intention, or naked promise to give, without some act to pass the property, is not a gift. There exists the locus pænitentiæ, so long as the gift is incomplete, and left imperfect in the mode of making it; and a court of equity will not interfere and give effect to a gift lest inchoate and imperfect. The necessity of delivery has been maintained in every period of the English law. Dona. tio perficitur possessione accipientis, was one of its ancient maxims.d The subject of the gift must be certain,

* 2 Blacks. Comm. 442.

Irons v. Smallpiece, 2 Barnu. f Ald. 551. Bunn v. Markham, 7 Taunt. Rep. 227. Bryson v. Brownrigg, 9 Vesey, 1. Antrobus v. Smith, 12 Ibid. 39. Hooper v. Goodwin, 1 Swanst. Rep. 485. Sims v. Sims, 2 Alab. Rep. N. S. 117. Noble v. Smith, 2 Johnson, 52. Adams v. Hayes, 2 Iredell, N. C. Rep. 366. But though the two cases first mentioned do not advert to any distinction between gifts inter vivos, and gifts causa mortis, there are cases which do make it, and consider a gift inter vivos, by parol, accompanied by acceptance, good to pass the property, without actual delivery of the chattel. Cor. Dig. tit. Biens, D. 2. 2 Manning & Granger, 691, note c.

• Antrobus v. Smith, 12 Vesey, 39. Pennington v. Gittings, 2 Gill g Johns. 208.

1 Jenk. Cent. 109, case 9. Bracton, de acquirendo rerum Dominio, lib. and there must be the mutual consent and concurrent will of both parties. It is nevertheless, hinted or assumed, in ancient and modern cases, a that a gift of a chattel,

by deed or writing, might do without delivery; for *439 an assignment in writing would be tantamount *to

delivery. But in Cotteen v. Missing, b a letter to executors, expressing a consent that a specific sum of money be given to a donee, was not a sufficient act in writing; and it was held not to be a gift of so much money in their hands, because the consent was not executed and carried into effect, and a further act was wanting in that case to pass the money. The vice-chancellor held, that money paid into the hands of B., for the benefit of a third person, was countermandable, so long as it remained in the hands of B. A parol promise to pay money as a gift is not binding, and the party may revoke his promise ;d and a parol gift of a note from a father to a son, was held not to be recoverable from the executors of the father.e

Delivery, in this, as in every other case, must be according to the nature of a thing. It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The

2, 15, 16. The delivery must be, if not actual, yet, under the circumstances, constructive or symbolical. Carradine v. Collins, 7 Smedes $ Marshall, R. 428. In South Carolina it is declared by statute in 1830, that no parol gift of any chattel shall be valid against subsequent creditors, purchasers, or mortgagees, except where the donee is separate and apart from the donor, and actual possession delivered at the time and continued in the donee and his representatives.

Flower's case, Noy's Rep. 67. Irong v. Smallpiece, 2 Barnw. of Ald. 551. Carne v. Marley, 2 Yerger's Tenn. Rep. 582.

01 Maddock's Ch. Rep. 176. 61 Dyer, 49, a. S. P. d Pearson v. Pearson, 7 Johns. Rep. 26. • Fink v. Cox, 18 Johns. Rep. 145. Pitts v. Mangum, 2 Bailey's S. C. Rep. 588. S. P.

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