ART. V.-CAN THE DONOR REVOKE AN ACTUAL GIFT BEFORE ACCEPTANCE BY THE DONEE?—NATURE OF GIFTS.

THIS question is stated very generally, and, in different cases and under different circumstances, may receive different answers. The law of England on this general subject is varied and mixed, having been partly borrowed from the civil law, and being partly founded on common law principles. Those rules, occasionally militating against each other, have been the cause that at a late period Mr. Fonblanque in his Treatise on Equity, vol. 1. p. 193, states this question as not yet settled in his own country, and asks quid juris? upon it. I shall endeavor to give a full view of the subject, both at the civil and the common law, and to consider this question in its greatest possible application and extent. This will lead me into the doctrines of donations, gifts, nudum pactum, consideration, &c., because those doctrines are all connected with each other and with the general subject. It is only in this manner that the principles of the law can be extracted from particular adjudged cases, which singly taken, give us at best but a púrblind view of any part of our legal system; which, considered as such, should be viewed at once in all its correlative parts.

I shall begin with the civil law, as the most simple and most closely connected system. After taking a cursory view of it, we shall be able to understand better the analogous rules of the common law. For all systems of legislation are best understood by comparison with others, particularly when, as in this case, their doctrines have been partially intermixed. The doctrine of nudum pactum is the same at the civil, as at the common law, having been evidently introduced into the latter from the former code, as the technical denomination literally preserved, sufficiently indicates. But there is this difference, that bona fide donations or gifts are not at the civil law nuda pacta, for the animus donandi is itself a sufficient consideration for the act of giving, while at the common law it is otherwise, and the natural affection of a parent to his child is the only consideration, not valuable, which it recognizes in contracts. Even the ancient feudal gifts of land were founded on a valu

able consideration, that of military and other services, which were always annexed to them and followed the gift as a con

sequence,

Donations or gifts at civil law are of two kinds, causâ mortis and inter vivos. The principle difference between them, is, that the former are revocable, while the donor lives, (See 3. Bin. 371) the latter when perfected by the acceptance of the donee, are irrevocable.

Every donation is a contract. Donatio est contractus. ff de Donat. c. 10. This is evident from the nature of the thing, and must be so likewise at common law, for it fully answers Ventris' just, though quaint, etymological definition of the word contract. Actus contra actum, 2 Vent. 202.

This, however, is not the true etymology of the word contract; it comes from contractare cum alio, to treat or agree with some other person. But Ventris's etymology is very expressive of the meaning of the word.

At civil law a donation may be of every thing susceptible of being given. It may be of lands, chattels, or even of choses in action. It may be also of an annuity, or of a sum of money to be paid, or chattel to be delivered by the donor at a future day. A contract of this kind, provided the animus donandi appear on the face of it, is not nudum pactum, but may be enforced by process of law. The law, however, does not permit these contracts to rest on parol evidence, they must be at least in writing, and if they exceed the sum of 200 solidi, or about $60 of our money, they must not only be executed in the most solemn form known to the law, that is to say, before a Tabellion or notary, and registered in the office of the magister census, who answered at Rome to our recorder of deeds. Such is the ancient civil law, and analogous forms have been provided for such cases in the different countries where it prevails.

I should have observed before, that the rule holds of this as of all other contracts, that it is not binding unless both parties have signified their consent. The civil law does not, like ours, presume that every man will accept what is intended

for his benefit.

After taking this view of the civil law on the subject before us, it would seem at first sight that the common law differs

from it toto calo. But we shall presently see that the difference consists more in form than in substance, and that the same results follow in general from both systems, though under different forms.

1. At civil law you may give a house or lands as a gift without a valuable consideration; at the common law you cannot; but if the act is not done in fraud of creditors or of any third person, a conveyance for a merely nominal consideration, say one dollar or one shilling, will be held valid. So of a chose in action or of any other thing, susceptible of being transferred.

2. At civil law you may covenant animo donandi, to pay a sum of money to the object of your liberality; by the common law you cannot, but you may give him your bond, and the solemnity of the instrument implies a sufficient legal consideration, which the obligee is not bound to prove, and can only be controverted on the ground of fraud or mistake.

If we compare, now, these two systems of jurisprudence, on the same subject matter, we shall find, that although they differ in form, they do not differ in substance. The civil law attains its object by simple and direct means, the common law by the aid of innocent fictions. But under both laws a gratuitous gift of lands, or any thing else, may be made, provided the requisite forms are complied with. If you wish to give a sum of money, payable at a future day, or in instalments at fixed periods, the form of a bond will be sufficient to execute. your design. If lands, or chattels, or choses in action be the subject of your liberality, a nominal consideration in your deed will answer the end. In this, both systems agree, that donations of this kind must be made in a very solemn manner, and this is very right, for it would be extremely dangerous to leave similar transactions to be evidenced by the frail and treacherous memory of man.

There is a species of donations, in which the common law almost entirely agrees with the civil law, from which the doctrine has been borrowed. They are donations of chattels accompanied with delivery. These are either causâ mortis or inter vivos. In donations causâ mortis, the civil law is more strictly followed, they having been introduced into our system by the Ecclesiastical Courts and the Court of Chancery. In

them, as at civil law in all cases of donation, a symbolical delivery is valid, as for instance that of a bond, where the debt is meant to be given. (3 Bin. 371.) It is denied that the same may be done inter vivos (2 Johns. 56). As these transactions rest on parol evidence, it would be dangerous if it were otherwise, for no man could trust with safety his bonds and other evidences of property in the hands of a third person.

The donations, we are speaking of, are called gifts at the common law, and we are now to consider whether any thing short of actual delivery and acceptance by the donee will make them irrevocable. I am astonished that Mr. Fonblanque made this a question, as I conceive the law is fully settled, that until delivery and acceptance by the donee, gifts of chattels are in every case revocable, for until then, as Blackstone very properly says, there is no perfect gift. (2 Black. 440.) The case in 1 Dyer 49, a. is fully to the point. If a man delivers to his servant on new year's day a golden cup to give as a new year's gift to a stranger, clearly he may countermand this, notwithstanding the gift, for this was not a gift perfectly executed.' The whole current of subsequent authorities supports this doctrine, and I have not been able to find one to the contrary.

The case of Butler and Baker (3 Coke 26) does not at all contradict this principle. For Lord Coke speaks of a gift by deed; not by mere delivery of a chattel. The same law,' he says, holds of a gift of goods and chattels; if the deed is delivered to the use of the donee, the goods and chattels are in the donee presently.' I should have no objection to this doctrine, though I believe it is not law at this day, on account of the solemnity of the instrument, and would be very willing to apply to this case the common law principle, that every man is presumed to accept what is for his benefit, until the contrary appears. Lord Coke may have meant a gift by deed also, in what he is reported to have said in Wortes v. Clifton, 1 Rol. Rep. 61, that by the civil law a gift of goods was not valid without delivery, but that it was otherwise by our law.' Chief Justice Kent, in Noble v. Smith, (2 Johns. 55,) has well proved that he was mistaken at least, as to the civil law, and at any rate, this dictum, which may be incorrectly reported, is generally considered at present as no authority. And it is, at

least, very doubtful whether a gift of a chattel by deed, without delivery of the chattel and acceptance by the donee, would not be considered as nudum pactum notwithstanding the opinion of Lord Coke. I would be disposed to consider it such for the following reasons.

1. The use of the chattel transferred by the deed, could not vest in the cestuy que use by virtue of the statute of uses, 27 Henry 8, c. 10, for that statute applies only to lands and to freehold estates, and even a lease for 999 years is not affected by it. 2 Black. 332. Therefore this transfer of a chattel by deed would at most create a trust in the grantee; but trusts are the creatures of equity, and equity, originally derived from the civil law, would follow its principles in this instance, and allow a gift, not perfected by actual delivery, to be revoked.

2. In doing so, equity would act in strict accordance with the common law; for it is laid down in Lilly's Abridgment, page 299, that if a feoffment is made without consideration, the donee takes to the use of the feoffer. As the animus donandi is not considered at the common law as a good consideration, (except where supported by the ingredient of natural love and affection,) it follows clearly, that there being no legal consideration for the gift, the disposition or use of the chattel would remain in the grantor, until actual delivery perfected the contract, and made it executed, and consequently irrevocable. Blackstone, indeed, tells us, 2 Comm. 328, that before the statute of uses, if feoffment was made to A and his heirs for the use of B at the common law, the true tenant (the feoffer) had the legal use and possession of the land, and the law took no notice of the use, which would seem to contradict the doctrine laid down in Lilly; but Blackstone does not speak here of feoffinents made without any consideration, and therefore his principle and that in Lilly may well stand together.

The case of Atkins v. Berwick, reported in 10 Mod. 432, and I Stra. 165, is that which has given rise to Mr. Fonblanque's doubt on this particular question, in my opinion, without any foundation. I shall proceed to analyse this case, as stated in the two reports, and it will be seen that it bears no kind of relation to a gift, (the subject before us) and therefore that it is not at all applicable to the present question. In 10 Mod. 432, the case is thus reported;