#### Lavender vs. Pritchard’s administrator.

'THE plaintiff offered a witness, who was surety in the appeal bond ; and an objection being made to his competency on this account, the plaintiff’s counsel offered to give another surety in his place;

Taylor, Judge;

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 wás thén laid before the. jury-, and the gift to the plaintiff by Tritchard was ptoved thus ¡ — Pritchard came to the house of Lavender, having some ears of corn in a wallet, and afteh 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 ot 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 vivas, 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 of any part of the property. The defendant’s counsel cited 2 Vezey, 442. 2 Bl. Com. 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. Judge Taylor, 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 ne\v 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 stizen of lands or of rents where one thing may be given in the name of seizen 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 oí law writers. He said the doctrine which he delivered to the jury was to be found *338in modern boobs, particularly in Wood’s Institutes, 242, where it is said, “ Upon a gift, or bargain and sale of goods and chat" “ tels personal, the delivery of six pence or a spoon, is a good u seizen 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 Negro boy, no words were expressed to shew 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.