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Opinion of the Court, per WRIGHT, J.

The defendants failing to produce any evidence, the plaintiff, by her counsel, moved the court to order and direct the jury to render a verdict in favor of the plaintiff for the amount of the note, and interest thereon; to which motion the defendants, by their counsel, objected. The court overruled the objection, and held and determined that the production of the note by the plaintiff, with proof of indorsement, and the amount of interest, entitled the plaintiff to recover, and directed the jury to find a verdict for the plaintiff for $277.27; to which direction and order the defendants' counsel excepted. The jury, under the direction of the court, found a verdict for that ainount; and the defendants' exceptions were directed to be heard in the first instance at General Term.

The General Term ordered judgment for the plaintiff on the verdict, with costs. Judgment was accordingly entered for the plaintiff, from which judgment this appeal is taken by the defendants.

Weeks, DeForest & Forster, for the plaintiff.

Elias J. Beach, for the defendants.

WRIGHT, J. There is no tenable exception in the case. The making of the note by Berry, and that the amount claimed was due upon it, were facts admitted by the pleadings; the defendants, in their answer, only putting in issue the plaintiff's ownership of it. On the trial, she produced the note, and proved the indorsement of her father, from whom she obtained it. This was enough. The possession of the note at the trial, indorsed in blank by the payee, was prima facie evidence of title, and certainly to enable the plaintiff to recover, she was not required to show affirmatively the way in which she became the owner. It is true, she alleged in her complaint that she acquired the title by gift; but this allegation was unnecessary, and did not cast on her the burden of proving it, or repel the presumption of ownership arising from her possession of the note. In this view of the case, as no evidence was offered to sustain any defense, and

Opinion of the Court, per WRIGHT, J.

the plaintiff had made out her case prima facie, the judge was right in directing a verdict in her favor.

But if, as is now contended, the principal matter tried at the circuit was, whether there had been a gift of the note to the plaintiff by her father, still there was no error in the disposition of the case. The proof was sufficient to establish, what the complaint unnecessarily alleged, a gift inter vivos of the note in question to the plaintiff. It has been often held that the promissory note of a third person is the subject of gift; and all that is necessary to uphold such gift is the delivery of the chose in action into the immediate possession of the donee. A gift inter vivos, when made perfect by delivery of the thing given, is an executed contract; and effectually and irrevocably vests the property in the donee. In short, all that is essential to constitute a valid transfer of property by parol gift, is an expression to that effect by the donor, accompanied by a delivery of the thing to the donee. Of course,

neither a donation inter vivos or mortis causa is good without delivery; but in the one case, the title passes immediately to the donee on delivery, and the donor has no more right over the property than any other person; in the other, the title does not pass immediately; it is a conditional gift to take effect only on the death of the donor, who in the meantime has the power of revocation, and may at any time resume possession and annul the gift. The facts conceded and proved in the case were these: The note originally belonged to Aaron H. Bedell, the father of the plaintiff. It was made payable to his order, was in his custody for four years, and he collected and indorsed the payments of interest thereon down to March, 1859. Bedell died some time in 1860, but the precise date does not appear. Before his death, and it may be admitted during his last illness, he indorsed the note in blank, and delivered it over to the plaintiff. I repeat, delivered it to the plaintiff, for the production by her of the note, indorsed in blank, was ample proof of its delivery. Why this indorsement and delivery of the note into the immediate possession of the plaintiff, unless a gift was intended ? It was precisely what was

Opinion of the Court, per WRIGHT, J.

required to be done to make a valid and effectual gift. The acts are explainable on no other theory. When, therefore, the plaintiff rested, she had shown prima facie a gift of the note from her father; and the defendants offering no proof, upon this theory of the case, their exception to the direction of the court to the jury to find a verdict for the amount of her claim was without force.

. It is stated that the defendants, as executors of Aaron H. Bedell, moved the court for judgment directing that the said moneys (meaning those paid into court by Berry, the maker of the note) belong and be paid over to them, on the ground of the insufficiency of the plaintiff's proof to establish a gift, causa mortis, of the note to her; which motion was denied, and an exception taken. The judgment asked for was, that the amount of the note which the plaintiff sought to recover be paid over to the defendants as assets of their testator; and the specific ground on which the motion was placed, was a failure of proof to establish a donatio mortis causa. Perhaps, the exception to the denial of the motion is sufficiently met and answered by the suggestion that neither in the pleadings, nor on the trial, did the plaintiff or her counsel claim or pretend to have acquired title to the note by a gift causa mortis, nor was any such issue presented or tried. The complaint averred title by a gift inter vivos, and not a gift in prospect of death; and it was an absolute present gift of the note, and not one essentially testamentary, that the proof was offered on the trial to establish. It is not necessary, however, to rely on so technical a ground. The motion was properly refused, if on the trial a recovery had been claimed on the ground of title to the note by gift causa mortis. No other or different proof is required to establish a gift of this description than one inter vivos. It is essential to the validity of both that there should be an expression of purpose to make the gift, and an actual delivery of the subject thereof to the donee. In the one case, the gift becomes complete by delivery of the thing given; in the other, by the death of the donor. In either, there is no gift without delivery. Gifts made in prospect of death are not favored or encouraged by TIFFANY. - VOL. VI.

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Opinion of the Court, per WRIGHT, J.

the courts; but when the proof establishes a valid gift of that nature, it is to be upheld. Nor where a party claims title to property by such a disposition, is he called upon, in order to sustain the claim, to show affirmatively, and with minuteness, the circumstances under which the alleged gift was made. He establishes a prima facie case when he shows that the disposition has been attended by all the requisites which the common law prescribes to give it validity. Cerr tainly, he is not required to prove affirmatively that the donor was of sound disposing mind and memory when he made the gift, and that the delivery of the subject was his free and voluntary act. These are matters of defense equally applicable to gifts inter vivos and causa mortis. In the

present case, coupling the allegations of the complaint and the statements of the plaintiff's counsel with the evidence (as the defendants' counsel insists should be done), the plaintiff showed that, in the last illness of her father, and three or four days before his decease, he indorsed the note in question, which was payable to his order, and delivered it to her as a gift; and from that time until the trial, it had continued in her possession. I know not what further was required, in the absence of conflicting evidence or anything to throw doubt on the transaction, to establish a gift of the note, whether made absolutely or in expectation of the donor's death. Manifestly, there was not such an insufficiency of proof to sustain the gift as to have justified the judgment applied for by the defendants, as executors of the donor.

The judgment of the Supreme Court should be affirmed.
All the judges concurring,
Judgment affirmed.

Statement of case.

RODERICK BEEBE and others, Appellants, v. ERASTUS S.

MEAD, Sheriff, &c., Respondent.

33 587 125 756

Where the General Term orders a new trial, both upon the law and the facts,

that opens the question for the consideration of this court, whether the General Term were right in holding that the court at circuit erred on questions of fact. The title of the consignor to paper shipped to his factors to be sold on commis

sion does not rest in the factors, unless they have made special advances upon the credit of such shipment; or unless, by an arrangement, they are to have a lien upon all shipments for any general balance of advances previously made.

APPEAL from judgment of Supreme Court of fourth district, reversing judgment and ordering new trial. The case was tried by a judge without a jury, and the record shows that the order of new trial was made upon the facts as well as the law of the case. The action was brought to recover the value of a quantity of paper alleged to have been wrongfully taken and converted by defendant. The defendant justified under an execution against the property of one Colin H. Skinner. The judge, in his decision, found no facts other than are embraced in a general finding, “ that plaintiffs were owners of the property, and entitled to the possession thereof, and that defendant wrongfully took the same;" and its value. The facts appearing on the trial were substantially these: Skinner was a paper manufacturer at Ogdensburgh, carrying on business through one Helliwell as his agent. The plaintiffs were in business in New York, selling paper on commission. In February, 1857, an arrangement was made between Helliwell and plaintiffs, by which the latter were to sell paper for Skinner on commission, and to advance three-fourths of the value on receipt of the paper, by notes at three months; their charges to be five per cent for commission, 24 per cent for guaranty, and 3 per cent insurance and expenses paid for freight and cartage. Under this arrangement, on the same day, they gave directions to have made and sent, “as commencement of the common account,"

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