L. M. M'Ginney, by her next friend, vs. Stephen S. Wallace Administrator of Charles Hopkins, 1 Ril. 290

Mr. Justice Evans delivered the opinion of the court. In this case, I am of opinion the nonsuit should be set aside. I am entirely satisfied with the case of Pitts vs. Mangum, 2 Bailey, 588. Every parol gift must take effect immediately, or at least, the donor must part from the title, at the time of delivery. If he reserves to himself a dominion beyond the control of the donee, the title still remains in him. In such case, delivery does not consummate the gift, because of control reserved by the donor. This was the case in Mangum vs. Pitts.

There the donor, although he delivered the negroes, expressly reserved to himself the use of the property, during the joint lives of himself and wife. It was an attempt to create an estate in a chattel, by parol, to commence in future, which cannot be allowed. The case of Mangum vs. Pitts, was decided on the authority of the case of Inabnet, reported in Judge Brevard’s MSS. Reports, Sec., decided full 30 years ago.

In this case it was proved, that after the delivery, the donor said, “ daughter, you must let her (the negro) work for grandfather while he lives.” And although Hopkins, the donor, kept the negro, he always spoke of her, as the plaintiff’s negro ; and when the negro was sick, sent for the plaintiff’s mother to nurse her ; and she also paid the expenses of her confinement, when her children were born. Now, these are circumstances, which may create a doubt, whether the donor did not intend to part from all dominion over the negro, and to vest her immediately in the donee.

The inclination of my own mind, is, to the conclusion that he intended to reserve the use of the negro to himself for life ; but I do not think the matter so clear, as to take the caselrom the jury. Whenever the plaintiff’s case, presents a question of law, arising on clear and undisputed facts, the presiding judge, should settle the controversy by grant, ing a nonsuit; but the facts should be clear, to authorize this course. I do not think this a case, coming up to that rule ; and it should,, therefore, have been left to the jury. Mitchell, for motion. Punkin, contra, Filed 14th February, 1837.

The motion is granted. JOSIAH J. EVANS. We concur, RICHARD GANTT, A. P, BUTLER. JOHN B. O’NEALL,