ART. V.-GIFTS PERFECT AND IMPERFECT.

THE administration of justice in civil matters is usually effected by a statement of facts to counsel, and by the acceptance of their opinion as a final decision. No wise man will encounter the delay and many troubles of litigation, if it is possible to agree upon facts and to obtain a decisive opinion upon the question at issue. There are, however, many questions which cannot be determined except by a court of justice. Some of them rest upon principles, which have not been satisfactorily ascertained; in others, the principles, although ascertained, cannot be safely applied to the circum

stances.

It always appears to us that these subjects deserve peculiar attention and remark. In giving rise to a large amount of litigation, they are attended with an evil of no ordinary magnitude, which may perhaps be averted by a strict investigation into the circumstances of the case, or by a fair consideration of legal rules and principles. It often happens, too, that when rules and principles have been clearly laid down, they are little understood by the world in general, and that mistakes ensue which no power less than that of a court of justice is able to correct.

These remarks are particularly applicable to the subject which we have placed at the head of this paper. What constitutes a complete disposition of the property of one man in favour of another; whether such a disposition is beyond the possibility of recall; whether it will be cancelled and set aside by subsequent acts done for that or for any other purpose; these and kindred questions are constantly brought before our Courts, and appear to have caused an unusual number of errors, both amongst clients and legal practitioners. Moreover, when they are brought into Court, there appears to have prevailed the utmost delusion upon the mode in which Courts will grant or refuse assistance, and give effect to, or leave in a state of nullity, particular transactions.

The odd notions, which are prevalent, often come to light in the Courts of revising barristers. One man claims a vote for premises, which he alleges that his father gave to him, but he never had any writings; he has occupied them about

twelve years, and he believes that his father has no right to turn him out. Another man's vote is disputed, because his land was given to him by his father, although he produces his writings, and proves a beneficial enjoyment in his own person without payment of rent during a long series of years. A declaration of trust is sometimes produced, complete in all its parts, but is opposed as an imperfect transfer of property, because no consideration has been paid for it. But the doubts upon the subject are most frequently discussed, when the estate of a deceased person is to be administered, and questions arise whether particular pieces of property have or have not been given away by the deceased during his life. These questions have generally referred to choses in action, bonds, lottery-tickets, policies of insurance, government tallies, mortgages, government stock and annuities. Rather an amusing instance1 of this kind of doubt arose as to the property of no less a person than the late Lord Stowell. He was in the habit of making frequent investments of stock, and he used to make them not in his own name, but in that of his son. His son died before him, and upon a full discussion before the present Master of the Rolls, it was decided that the stock belonged to the son, and not to the father. What was the particular object of the father in using his son's name rather than his own in the purchase, was not very clearly shown. Such purchases are, however, frequently made with a view to avoid legacy-duty. If this was the object of his lordship, the event, had his son died intestate, would have been, that the stock, which came from the father, would have returned to him, minus the legacy duty. At first it was supposed that the son did die intestate. Afterwards, however, his will was discovered, by which all the property was bequeathed to the sister.

In dealing with questions upon gifts perfect and imperfect, our present endeavour will be to ascertain the rules and principles, which have been established by statutes and decisions, and to show the mode in which those rules and principles have been applied to particular subjects.

As to personal goods, the law is, that they pass by de

1 Sidmouth v. Sidmouth, 2 Beav. 448.

livery,' or by deed. If one man wishes to give to another a piece of coin, or a box, or a coat, he has only to put it into his hand, and the gift is complete. Delivery, however, is not indispensable. Goods are often in such a state and of such a nature that delivery is impossible. For instance, goods at sea. In Brown v. Heathcote,3 Lord Hardwicke says, "It has been insisted by the plaintiff's counsel, that this assignment is no legal bill of sale, or legal assignment of these goods. And it must be admitted, as to the homeward bound cargo, it is no legal assignment. But it has been carried still farther by the plaintiff's counsel, for they have likewise insisted the assignment does not amount to a bill of sale of the outward bound cargo, for want of a delivery of the goods themselves. I am of opinion that a delivery in this particular instance was not absolutely necessary to make it a complete contract; as in the case of a horse sold in a market overt, if the buyer pays the money for him, he may maintain an action against the seller, without showing a delivery of the horse." Lord Hardwicke excepts the homeward bound cargo. Of this exception the principle is more fully explained in the other case to which he referred, Mair v. Glennie. That principle appears to be, that the homeward bound cargo might have been taken into possession on the arrival of it at home, but that no such act was ever done. In Mair v. Glennie the persons claiming the goods had an opportunity of taking them into possession, but they refused to do so. And for this reason it was held, that the property had not passed. We may here observe that these were cases not of gift, but of assignments for value. Still the rules adopted in these cases are applicable to our present subject. They show how property of this kind may be transferred from one person to another. If made voluntarily, they will be good against the donor, but subject to such rights in other persons as will be presently mentioned. In inquiring how personal property passes by gift, the question is, how the gift may be complete against the donor. The rights of other persons involve considerations totally distinct.

It is easy to find other instances in which an actual delivery

Twyne's case, 3 Co. 81 a, n. (c). 3 Brown v. Heathcote, 1 Atk. 162. VOL. XXVIII. NO. LVII.

2

Shepherd's Touchstone, p. 224. 4 Mair v.

Glennie, 4 M. & S. 245.

H

of goods is unnecessary. In Manton v. Moore,1 Lord Kenyon thus states the question, whether certain goods were in the possession of a canal company or of their engineer. "It has been properly admitted that if such a possession of the goods, as the nature of the case would permit, was taken by the canal company at the time when the bill of sale was executed, there is an end of the question. Then it becomes. necessary to consider, what was the situation of these parties. The canal company, who were carrying on great works, had employed an engineer, and had advanced money to him, with which he had procured the goods in question, and deposited them on the banks of their canal, fit for the purpose of being there used; these materials were of great bulk; and this engineer, so being in arrear to the company, executed to them a bill of sale of these goods, then lying on the banks of their canal, which were their property. In cases of this kind, the question, whether the act be or be not fraudulent, depends on another question, whether the goods be or be not delivered with the instrument that professes to convey them. A conveyance of goods without deed is fraudulent, unless possession of the goods be given: if it be by deed, it is fraudulent, and an act of bankruptcy. But in this case no other possession could have been given. When the bill of sale was executed, the goods remained on the premises of the canal company, to whom the conveyance was made. It has been admitted in many cases, that there need not be a transmutation from hand to hand; where goods are in a warehouse, the delivery of the key of the warehouse has been held sufficient; and yet such a conveyance may be as secret as the present."

These cases leave undetermined how far delivery of goods is indispensable to the change of the right of property. We think that some more recent decisions have set this question at rest. In the first place, a delivery is unnecessary, if nondelivery is consistent with the terms of the deed by which an assignment purports to be made; as where the assignment is by way of pledge or mortgage. In the next place the change of possession is in no case necessary. "Possession is to be much regarded, but that is with a view to ascertain the good or bad faith of the transaction." 2 "The mere circumstance of

1 Manton v. Moore, 7 T. R. 67.

2 Latimer v. Batson, 4 B. & C. 654.

possession of chattels, however familiar it may be to say that it proves fraud, amounts to no more than that it is primâ facie evidence of property in the man possessing, until a title not fraudulent is shown, under which that possession has followed. Every case from Twyne's case downwards supports that." 1 The rule which we deduce from the leading authorities is, that the assignment by deed and without delivery is a valid assignment. It may however be impugned by evidence of fraud, in which non-possession is a material circumstance. Of course the rule is applicable with peculiar force to gifts. Want of consideration begets suspicion; coupled with want of possession, it will leave to the voluntary donee a very difficult struggle in resisting any further evidence of fraud, which may happen to arise out of the circumstances of the case.

Let us next take the cases of choses in action. In respect of our present subject they differ from personal goods in this important particular, that the donor does not intend to confine his gift to the instrument which he has in his hands, but that he intends to give the money to which that instrument contains evidence of title; the money due from the obligor upon the bond, as well as the bond itself; the insurance money, as well as the policy. The question therefore is not, what amounts to a gift of the paper or parchment constituting the title, but what is a gift of the sum, which, by virtue of that title, may be recovered.

If a person gives to another a paper which is in the nature of an order for money, it is not a complete gift of the money, for the power of ordering ceases with life. If then the donee dies before the order is presented, that power having passed from him to his executors, there ceases to be any authority upon which the persons to whom it is directed can be compelled, or can even venture, to make the payment. Lord Thurlow, in speaking of a gift of a cheque, makes the follow

Arundel v. Phipps, 10 Ves. 145.

2 See Steward v. Lambe, 1 Brod. & Bing. 512; Watkins v. Birch, 4 Taun. 824; Kidd v. Rawlinson, 2 Bos. & Pul. 59; Bull, N. P. 258; How v. Baker, 9 East, 239; Edwards v. Harben, 2 T. R. 594; Steel v. Brown, 1 Taun. 381; and see particularly Shep. Touch. 224; Martindale v. Booth, 3 B. & Ad. 498. It is right to observe that many doubts are entertained, whether the transfer of chattels by deed, but without delivery, is consistent with the principles of the common law.