Opinion
(January Term, 1805.)
1. A surety to an appeal bond is an incompetent witness for the appellant, but his incompetency may be removed by the appellant's giving a new bond with other sureties.
2. A symbolical delivery of chattels is good when the things given are not present to be delivered. Hence, where one said to a child, "I give you all my corn and all my hogs, my horse, and my boy," and then took an ear or two of corn out of a wallet and said, "Here taken of the corn I have given you," and gave the child the ears of corn, it was held to be a good gift of corn, but not of the boy, horse, and hogs.
PLAINTIFF offered a witness who was surety in the appeal bond, and an objection being made to his competency on this account, plaintiff's counsel offered to give another surety in his place.
Withdrawing this surety from the appeal bond would discharge the bond; therefore, in case of withdrawing at all, another new bond must be given, to be signed by two new sureties. This the plaintiff could not do. So the witness was rejected.
Other evidence was then laid before the jury, and the gift to the plaintiff by Pritchard was proved thus: Pritchard came to the house of Lavender, having some ears of corn in a wallet, and after getting into the house said to the plaintiff, a child: "I give you all my corn and all my hogs, my horse [naming him] and my boy" [naming him]. He then took out of the wallet an ear or two of corn, and said: "Here, take of the corn I have given you" — and gave the child an ear or two.
The jury found a verdict for the plaintiff, with damages for all the property claimed by the plaintiff. A new trial was moved for, on the ground that a gift inter vivos could not be perfected but by a delivery of the very thing itself given, not by a symbol or representative of the thing given. Secondly, if a symbol would do, the thing used as a symbol should be delivered expressly in the name of the thing given; and here it was not said for what purpose the corn was given, nor whether it was intended as a representative of the whole or any part of the property. Defendant's counsel cited 2 Vezey, 442; 2 Bl. Co., 442; and they challenged the other side to produce a single case at the common law where it is said that a delivery of something, in lieu of the thing given, was a sufficient delivery to complete the gift.
who had directed the jury that a delivery of part of the thing given was a good delivery of the whole of that species of property, took several days to consider of the motion for a new trial, and came into court with divers books, which he read in support of his former opinion. Our law, he said, was taken from the civil law, which allowed of a possession of part to be given in the name of the whole. 1 Brown Civil and Admiralty Law, 256. He said it was also analogous to the common law respecting the seisin of lands or of rents, where one thing may be given in the name of seisin of the rent or land. He cited 1 Inst., 1596, 160, 315. It was true, he said, there are not many old books which treat of this subject, because in ancient times personal property was not considerable enough to engage the attention of law writers. He said the doctrine which he delivered to the jury was to be (338) found in modern books, particularly in Wood's Institutes, 242, where it is said: "Upon a gift, or bargain and sale of goods and chattels personal, the delivery of sixpence or a spoon is a good seisin of the whole." Here was a delivery of part of the corn, which the jury are at liberty to consider as a delivery of the whole corpus of which that thing was a part. But it cannot be considered as a delivery of all the things given, because the horse, one of the articles enumerated in the gift, was present, and might have been delivered, and yet was not; and as to the hogs and the negro boy, no words were expressed to show an intent that the ear of corn should be a symbol of these. There must, therefore, be a new trial, unless the plaintiff will release the damages for all but the corn.
They did so, and the verdict stood for the residue.
NOTE. — Upon the first point, see McCullock v. Tyson, 9 N.C. 336, and Garmon v. Barringer, 19 N.C. 502.
On the other point, see the note to Arrington v. Arrington, 2 N.C. 1, and the case of Adams v. Hayes, 24 N.C. 361.
Cited: Brittain v. Howell, 19 N.C. 108; Garmon v. Barringer, ib., 503.