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As the fourth of July is approaching it is well to be forearmed. In Robinson v. Greenville, 42 Ohio St. 695, it was held that a city is not liable for an injury to a person passing in a street, by reason of the negligent discharge of a cannon by disorderly persons. The court said: "Undoubtedly there is difficulty sometimes in determing the class in which a particular case must fall; and it is also true that there is considerable conflict in the authorities, as to the extent of such liability. We will make no attempt to settle this conflict, but have referred to the above cases for the purpose of illustrating the distinction already stated between cases falling within the police power of the corporation and those in which it represents the property rights of the citizen. Reference to most of the cases on the subject, decided previous to 1877, will be found Hill v. Boston, 122 Mass. 344; S. C., 23 Am. Rep. 332; and see Springfield v. Spence, 39 Ohio St. 665; Bathurst v. Macpherson, 4 App. Cas. 256; Barnes v. District of Columbia, 91 U. S. 540. That firing cannon in a public street of a municipal corporation, except in case of imperative and urgent necessity, is an intolerable nuisance, and that all persons engaged in such unlawful act are personally liable for all damages caused thereby, are propositions concerning which there is no room for difference of opinion. But a very different question is presented when it is to fasten for such juries on a municipal corporation. We cannot say that the firing complained of in the petition was licensed or expressly authorized. While the common law rule, that pleadings must be construed most strongly against the pleader, has been abrogated, we are not required, under the present system, to construe every equivocal word or phrase most strongly in favor of the pleader. On the contrary, the meaning of the pleader must be fairly ascertained, without regard to technical rules from the whole instrument. Crooks v. Finney, 39 Ohio St. 57. Of course, if legal or technical words are used, we are to understand them in their recognized sense, unless the context shows another sense was intended. The words of the petition, fairly construed, charge no more than that the authorities of the village permitted, that is, took no measures to prevent, such firing; and so the case clearly falls within the first class to which we have referred, and hence the corporation is not liable. Norristown v. Fitzpatrick, 94 Penn. St. 121; S: C., 39 Am. Rep. 771; and Boyland v. New York, 1 Sand. 27, are both remarkably like this case in their facts, and in each it was held that the corporation was not liable. And see Campbell's Adm'x, v. City Council of Montgomery, 53 Ala. 527; City of Lafayette v. Timberlake, 88 Ind. 330. To be sure, it is urged here that the village is liable by force of the Revised Statutes, § 2640, which provides: "The council shall have the care, supervision, and control of all public highways, streets, avenues, alleys, side walks, public grounds and bridges within the corporation, and shall cause the same to be kept
open and in repair and free from nuisance.' In our opinion however the word nuisance, in this connection, does not include an assemblage of persons engaged in such unlawful act, but refers to something which is in a seuse fixed or permanent as a defect in the street. But if we could hold otherwise, the result would be the same, for if nuisance embraces a mob, then the city is not liable for such nuisance, on the principle already stated." See Tindley v. Salem, 137 Mass. 171.
A piggery is an indictable nuisance. Commonwealth v. Perry, Massachusetts Supreme Court, March, 1885. The defendant asked the judge to instruct the jury that evidence of the natural odors which come from the bodies of domestic animals, however annoying to certain persons, would not sustain an indictment for a nuisance; and that the keeping of swine to the number of 500 near dwelling houses and streets of a town was not per se a nuisance. The judge refused so to instruct, and instructed the jury that the natural odor of one animal might not be a nuisance, but the natural odor of 500 might be; that it was for the jury to say whether it was so in this case; that 500 swine kept in the vicinity of roads and dwelling houses might become a nuisance, where one would not; that people residing in the neighborhood of this piggery had a right to have the air free and uncontaminated by odors, smells and stenches offensive to the senses; that it was not necessary for the government to show that the contamination of the atmosphere was to such an extent as to cause an actual injury to health, but it would be sufficient for it to show that the smells and stenches were so offensive as to render the residences and habitations in the vicininty uncomfortable; and that the keeping of swine to the number of 500 near dwelling houses and streets of a town would become a nuisance, if smells and stenches actually emitted from such keeping were such as to render the dwelling houses uncomfortable for residents, or to render the passing in the streets uncomfortable. The court, on appeal, affirmed the conviction, observing: "A piggery in which swine are kept in such numbers that their natural odors fill the air thereabouts and make the occupation of the neighboring houses and passage over the adjacent highways disagreeable or worse is a nuisance. Commonwealth v. Kidder, 107 Mass. 188. indictment was sufficient, and the instructions
asked were erroneous.
A curious question of right in a party wall was decided by the Pennsylvania Supreme Court, in McCall's Appeal, March 30, 1885, 16 Week. Notes Cases, 95. A. erected a solid party wall the whole length of his building to the height of sixteen feet above the ground. He continued the wall as a solid wall to the height of seventy feet except in three places, forty feet apart, where he receded from the party wall nine feet, and then built on foundations
on his own ground, thus forming recesses for light and air. Held, that he had a right to do this, and should not be restrained. The court said: "At present, the appellant has sustained no injury by reason of these recesses being left open. He may fill them up for the support of any building he may erect on the party wall."
the partnership business; and in an action to recover the latter alone the party sued may set off a debt due him from them having no relation to the transactions of the firm. Collyer Part., § 764; Holbrook v. Lackey, 13 Met. 132, 134; Nehrboss v. Bliss, 88 N. Y. 604. The relation of the surviving plaintiffs to the action is in no sense that of representatives or assignees of the firm as distinguished from the firm itself. The cause of action is theirs, deemed originally theirs, and continues to be such. They in law are principals and owners in respect to the matters of the partnership by virtue of their relation as partners and because they are survivors. Their rights in that right of action in question was in the firm. The respect are not derivative or representative. The death of the member neither vests any rights in the survivors, nor does it divest them of any rights of property or action then existing. In the prosecuderived powers, and asserting no new or additional tion of this action they are exercising no new or rights. Adams v. Hacket, 27 N. H. 289; 59 Am. Dec. 376, 377.
In Shale v. Minges, 35 Hun, 622, it was held that an action brought by the members of a firm for slander of its financial condition and credit does not abate by the death of one of the plaintiffs pending suit. The court said: "On the part of the defendant it is contended that the death of one of the plaintiffs produced a dissolution of the partnership, that the firm then ceased to exist; and therefore the practical effect is the same as that produced by the death of a sole plaintiff. The question is novel and must be disposed of on principle deemed applicable to the nature of a partnership and the relation of the surviving members to it. If it may be said that a firm as such has an existence in the legal sense distinct from its members, that the right of action depends upon the continuance of such entity, and that by the death of one of its members that entity disappears, then a reasou can be seen for the result given at the circuit. In such case there would remain no plaintiff to prosecute the action and it would necessarily abate. But on the death of one of several members of a partnership no personal representative takes his place in respect to the partnership property. He by the event is taken out of the firm, and a dissolution is the consequence, but practically the dissolution has relation only to subsequent business transactions to a qualified extent. While the agency in the surviving members is so qualified that they cannot create any new obligations or liabilities, their relation to the situation in which the death of the member left the property and business enables them respectively to manage and control its affairs as fully and completely as before. * * * The joint relation of the surviv-being, as he quickly informed me, about to appear ors is not broken into a tenancy in common by such in a new role, that of defendant at the Mansion death, nor are their relation and equities impaired House police court, in a charge of defrauding a railby it. The property of the firm does not, nor do way company. His face fell somewhat when he any rights of action in respect to its matters pass to learned that Mr. W. was at Westminster and not any representative of the partnership. It and all likely to return till the afternoon, but as the sumthe then existing rights of the firm continue in the mons was for eleven o'clock, and that hour was survivors, and are theirs at law the same as they had already past, there was no time for deliberation, and been prior to the death of the one member; the after a minute's pause, he asked me to accompany property and rights of all united. And to that ex- him and as he expressed it, "cheek the thing through tent, and for all practical purposes limited as before somehow." Accordingly off we went together armmentioned, it may be said that the place prior to in-arm stopping on our way to adorn ourselves with that event filled by the three is after such death oc- flowers, in approved city style. The facts of C.'s cupied by the two survivors. Adams v. Hackett, 27 offense were very simple. On arriving at his office N. H. 289; 59 Am. Dec. 376; Nehrboss v. Bliss, 88 a week or so before, he had found a telegram N. Y. 600, 604. The title and rights of the surviv- there, summoning him out of town for some days. ors are original and complete in them. The law He sent a commissionaire to his wife at his suburbam recognizes no distinction between a debt due the home, with a note to explain his absence, and, survivors in their own right and as surviving part-thinking no harm, gave the man the return half of They may join in the same action a claim his railway ticket. Now the commissionaires, who, due them independent of it, with one arising out of be it explained, are a corps of old soldiers uni
MY FIRST CASE.
A SKETCH AT THE MANSION HOUSE. URIED in the twilight of an underground den
regretfully ruminating over the fate which had transferred me, a lad of seventeen, from the pleasant leisure of a country town, with abundant cricket and no drudgery, to my present quarters, where circumstances were exactly reversed, when the sudden appearance of the lively Captain C. woke me up. This gentleman, ever jovial and impecunious, was a fine specimen of the "promoter" class and the pen of Dickens alone could have done justice to that natty, blithe exterior and that frank insouciant address which had so long enabled their adroit possessor to live upon his wits and the British public. On this occasion he was even livelier than usual,
formed, organized in semi-military style, and much used in London as quick and thoroughly reliable messengers, are not in the habit of indulging in first-class carriages, and the circumstance of this messenger riding in such style attracted the ticket collector's attention, who took down his employer's name and address. The gallant captain, on his return to town, found a letter awaiting him from the solicitors of the railway company. stating that by giving away his ticket, he had broken the by-law printed thereon and laid himself open to a penalty. C. wrote a sensible letter in reply, explaining that it was an inadvertence on his part which should not occur again, and he felt justly indignant, when with no further ceremony, he was served with the present summons. Unfortunately he had kept no copy of his letter. Arrived at court, we were by no means pleased to see the venerable but strict Sir Robert Carden on the bench, in the place of the genial had given to that fund." In this case there was howStone, who at that time occupied the civic chair. Sir Robert, too, was evidently in a tantrum and was just galloping, spurs and all, down the throat of an unfortunate and nervous lawyer who seemed unable either to contradict him with firmness or to yield with grace. My courage was fast ebbing out at my shoes, when a keen looking man, with a single eyeglass, whom I instantly recognized as the famous George Lewis, the hero of the criminal courts, courteously made room for me, beside him in the lawyer's pen. To him I made bold to explain my predicament and in a few words he put me right. "Don't plead guilty, let them prove their case and call for the letter. If you get hold of that, you're all right. No one will ask you if you are admitted."
A portion of the fund was withdrawn by the depositor. The court said: "She may not have been aware that she had no right to draw from the trust fund, but that fact would not take away the character which she
ever no controversy about the fund that had been drawn out, the action having been brought by the depositor's administratrix to determine the question of the beneficiary's title to the fund that still remained on deposit. The opinion of the court on this point was only obiter, as in Martin v. Funk.
In a few minutes our case was called. The company's lawyer, after a short speech, which had the good effect of annoying Sir Robert, who seemed to be in a great hurry, put the commissionaire and the collector in the box. My mind was relieved when he handed me the letter, saying in an aside, that "he didn't want the full fine-only an example ' When my turn came, I simply read the letter and asked the alderman if he did not think it rather hard that a gentleman should be brought into a police court for a mere inadvertence such as any one might commit, especially after such a fair and reasonable letter. The old man eyed C. for a moment, and then went for the company in a manner perfectly refreshing. Their lawyer tried to expostulate and made matters worse "" — Outrageous piece of oppression "—" abominable pettifogging "- such were some of the judicial utterances, and he closed by saying that the defendant left the court with the sincere regret of the bench that he should ever have been brought there. Mr. Lewis turned to me with a pleasant smile and a pleasant wish that my first case might be the commencement of many successes, a wish that unfortunately has not been fulfilled.
For the rest of that day I imagined myself a second Cicero, and the climax of my pleasure was reached, when in the evening W. came back from
Westminster, roaring with laughter, and showed
DELIVERY NOT ALWAYS ESSENTIAL TO A
In Minor v. Rogers the beneficiary was not aware of the trust until after the depositor's death, and it appeared that he had drawn out the amount of the deposit. The court sustained a judgment against the depositor's administrator for the full amount of the deposit. This decision is a clear and express authority in favor of the irrevocability of such a trust, and thus the law may be regarded as settled.
While as between the depositor and the cestui que trust the title passes at once on the making of the deposit, yet for at least one purpose, the depositor, when he makes himself trustee, is still regarded as the owner of the fund. He may draw it from the bank, and the bank is protected in paying him, though it expressly appears that he is a mere trustee as to the money, unless the beneficiary under the trust has claimed the fund and directed the bank not to pay it to the trustee. Boone v. Citizens' Bank, 84 N. Y. 83. This case went even further, and decided that payment by the bank to the administrator of the depositor and trustee was a valid payment of the cestui que trust. The court said: "It may not be doubted that if the intestate in her life-time had demanded the money of the bank and had presented her pass-book, no claim by the beneficiary having been interposed, the bank would have been bound to pay; and this for the reason that such was their express contract. What the trust was they neither knew nor were bound to inquire. That was a matter wholly between the trustee and cestui que trust -at least until the latter gave notice to the bank of a hostile claim. They had received the money of the trustee, agreeing to return it to her as trustee on demand. When she called for it they were bound to pay, and having done so were discharged from liability.'
* * * "But Susan Boone (the trustee) died before withdrawing the money. If now her right to demand and receive the deposit devolved upon her administrator, no change came over the right and duty of the bank as it respected a payment to him All the right of the deceased to demand and receive the money would pass to him, and such payment by the bank to him would be so effectual a discharge as if paid to the intestate in her life-time. We are of opinion that upon the death of Susan Boone her rights as trustee devolved upon her administrator" (citing au
thorities). ** * "When therefore he appeared at the bank and produced his letters of administration and the pass-book, which by the contract was evidence of his right to withdraw the deposit, and demand its payment, the bank had no alternative. It had no right to inquire into the character of the trust, and owed no duty to the beneficiary until the latter by notice or forbidding payment or demanding it for himself, created on the part of the bank such right and duty."
The decision of the court below was against the validity of the payment, the court in effect deciding that the creation of the trust operated as an immediate transfer of the title to the deposit to the cestui que trust. On this point the Court of Appeals say: "Nor does it alter the situation to call this an executed trust and insist upon the right of the beneficiary to have the pass-book and the fund. If he has such a right it reaches the bank through the trustee, and the bank can only pay the beneficiary at the peril of establishing the latter's right as against the trustee to the possession of the fund."
This does not appear to be a very satisfactory answer to the argument of the court below that the title was in the beneficiary. The principle on which all the courts have proceeded is that the creation of a trust is as effectual to pass the title to property or money as a valid gift consummated by delivery. As between the trustee and the cestui que trust the itle at once passes.
The bank can justify payment to the trustee only on the ground of ignorance of the nature of the trust. It cannot claim that the trustee has any right to the fund. He has no active duty to perform. The trust is a merely passive trust. The beneficiary has the right to sue for and recover the money. It is his in every sense of the word. The bank cannot with very good grace set up ignorance of the nature of the trust to exonerate it from liability to the beneficiary. It knows that a trust has in fact been created. The nature of that trust can be ascertained; or it can notify the beneficiary of the deposit, and if he claims the money it can protect itself against a double payment by an interpleader. It is thus apparent that no great hardship would be imposed on the bank by requiring it to protect the rights of the cestui que trust. The rule established by the Court of Appeals is in conflict with prin ciple, as it permits the bank to exonerate itself from liability to A. by paying his money to B., and moreover this rule utterly ignores the rights of the beneficiary to the deposit, and permits the bank to disregard his rights to money under its control when it might fully protect him without injury or loss to itself.
A question of some interest was decided in Willis v. Smyth. The original deposit was in trust for Sarah J. Urner. She subsequently married. After that another deposit of $2,000 was made to the same account. It was urged that as to this $2,000 there was no valid trust for the reason that there was then no such person as Sarah J. Uruer in being. The court said: "We think this position not well founded. It is manifest that the deposit was made for the benefit of the intestate's daughter originally and continued so after her marriage. Her marriage could not change the nature of the deposit or the intention of the intestate to make it for her daughter's benefit."
In Mabie v. Bailey the statute of limitatious was set up as a defense. The depositor and trustee drew out the deposit in 1867. The action against his executor to recover the amount of the deposit was commenced in 1881. The court said: "We think the defense of the statute of limitations was not made out, supposing the statute applies in such a case. The withdrawal of the deposit in 1867 was not so far as the case discloses in
hostility to the trust. The testator held the legal title to the fund as trustee, and it was competent for him to withdraw it to make another investment or for any purpose not inconsistent with the trust. There is no evidence that he ever repudiated the trust, and no presumption that he did so can be indulged to let in the defense of the statute of limitations. The right of action upon the facts presented did not accrue until the testator's death, which presumptively upon the evidence was the period when the trust terminated."
The rule declared in Young v. Young, 80 N. Y. 422, that no trust could be created where the donor intended to make a gift and not to establish a trust, was held in that case to apply even to cases where the donor and intended donee sustained to each other the relation of parent and child. In that case the donor was the father of the two sons to whom he clearly intended to give the bouds which they claimed. His acts were held not to constitute a good gift, and the court refused to sustain the transaction as a declaration of trust, because a trust was not intended. The court said: "It has in some cases been attempted to establish an exception in favor of a wife and children on the ground that the moral obligation of the donor to provide for them constituted what was called a meritorious consideration for the gift; but Judge Story (Eq. Jur., vol. 2, § 987, and vol. 1, § 433) says that the doctrine seems now be overruled, and that the general principle is established that in no case whatever will courts of equity interfere in favor of mere volunteers, whether it be upon a voluntary contract or a covenant or a settlement, however meritorious may be the consideration, and although the beneficiaries stand in the relation of a wife or child. Holloway v. Headington, 8 Sim. 325; Jefferys v. Jefferys, 1 Craig & Phillips, 138, 141.”
Another exception to the rule that delivery is essential to the validity of a gift is the well-established doctrine that where securities or contracts are taken or the deposit of money is made by a husband in the joint names of himself and wife, or in his wife's name alone, the transaction constitutes a gift revocable during the life of the husband, but irrevocable after his death, although there has been no delivery of the security, contract or instrument to the wife, and although no consideration is paid by her. Scott v. Simes, 10 Bosw. 314; Roman Catholic Orphan Asylum v. Strain, 2 Bradf. 34; Borst v. Spelman, 4 N. Y. 284; Sanford v. Sanford, 45 id. 723; Draper v. Jackson, 16 Mass. 480; Gaters v. Madeley, 6 Mees. & W. 423; Christ Hospital v. Budgin, 2 Vern. 683; Dummer v. Pitcher, 5 Sim. 35.
In Sanford v. Sanford the court said: "Taking this note in the name of himself and wife shows that the husband intended thereby to give it to her in case she survives him, and a delivery to her was unnecessary to perfect the gift."
In Roman Catholic Orphan Asylum v. Strain the hus. band deposited a sum of money and took a certificate of deposit in favor of himself and wife. The surrogate held that on his death she became the absolute owner of the money.
In Dummer v. Pitcher the husband transferred two sums of bank annuities into the names of himself and wife, and died in her life-time. The court held that on his death she became absolute owner.
In Christ's Hospital v. Budgin the husband loaned money on bond and mortgage, and took the securities in the joint names of himself and wife. The court decided that the absolute title vested in her on his death.
In Scott v. Simes the husband took a promissory note for money due him in the name of his wife, but
never delivered it to her, and he collected the interest from time to time. The court held that upon his death the note became her property. On the subject of delivery the court said: " 'No actual delivery to the defendant was necessary to constitute it an executed gift. The taking the security in her name constituted the gift, and its retention in his custody was a delivery to her." * * * "An executory contract by its
mere form survives to the wife when made in her name or the joint names of herself and husband."
In Borst v. Spelman the court thus expresses the same doctrine: "Where an obligation or contract is taken to the husband and wife, or to the wife alone with the assent of the husband, the action survives to the wife, who is entitled to the proceeds as against the heirs and personal representatives of the husband. This is the rule at law as well as in equity."
The gift however is not in one sense complete. The husband may at any time revoke it. Scott v. Simes, Sanford v. Sanford, Borst v. Spelman, Roman Catholic Orphan Asylum v. Strain.
In Sanford v. Sanford the court said: "Taking this note in the name of himself and wife shows that the husband intended thereby to give it to her in case she survived him, and a delivery to her was unneccssary to perfect the gift. Assuming this to be, yet during the life of the husband, the note is subject to his control and disposition. The wife has no legal interest in it until his decease.'
In Scott v. Simes the court recognized this rule, holding that as the husband had not done any act signify ing a different intention, "or by which he revoked the gift," the property upon his death became the property of the wife. It has been held that the receipt of interest or dividends on the security is not sufficient evidence to warrant a court in deciding that there has been a revocation. Scott v. Simes. In this case a note was taken by the husband in the name of his wife. He collected the interest on it from time to time, and appropriated the interest to his own use. The court held that this did not constitute a revocation of the gift. Monell, J., said: "The receipt of the accruing interest by the husband was not an appropriation of the principal." And Robertson, J., in deciding that there had been revocation, said: "The receipt of the mere interest is not sufficient for the purpose." See also on this point Burr v. Sherwood, 3 Bradf. 85; Nash v. Nash, 2 Mad. C. C. 133.
The question of the validity of a gift has arisen in a number of analogous cases in the New York Court of Appeals under circumstan ces so peculiar that this article would be incomplete without a brief review of them.
that thereupon defendant did give plaintiff one dollar for the purpose of satisfying the whole debt; that plaintiff accepted the same, and balanced his books as follows:
$ 1 00 820 91
Wm. Barton cr. by cash on account. Gift to balance account and delivered to defendant a receipt, of which the following is a copy: "Received from Wm. Burton one dollar in full to balance all book accounts up to date of whatever name and nature." The court held that a valid gift of the account had been made, and sustained the defense, Grover, J., saying: "Had the plaintiff written upon a copy of the account that the same was cancelled by a gift thereof to the defendant, and signed and delivered the same to the defendant with intent to make a gift thereof to him, and the latter had accepted it as a gift from him, can there be a doubt that the gift would have been effectual? It was all the delivery the subject was capable of. But in this case the plaintiff balanced his books by gift to the defendant. Had he stopped here, making no delivery of any thing to the defendant, the act would not have been of any effect; nothing would have been delivered to him; aud the books continuing in the possession of the plaintiff, the gift would not have been executed. But when to complete his purpose of giving the debt, he executed and delivered to the defendant a receipt in full for the account, to effect the intention of the parties, the law will construe the instrument, if necessary, as an assignment of the account and of the right of action thereon to the defendant."
The first case is Champney v. Blanchard, 39 N. Y. 111. The defendant had in her possession certain money belonging to one Mary Champney. She delivored to her a paper stating that fact. Mary Champ-ply ney on her death bed gave the paper to defendant, stating that she gave her the money. The court held the gift valid, although there was no delivery of the money. 'Delivery of the subject-matter is no doubt essential to gifts either inter vivos or mortis causa; but the object of delivery is to give possession, and in this case possession was already complete in the douee."
In Gray v. Barton, N. Y. 68, the action was on an account. The defense was that plaintiff had given the account to defendant. The referee found as matters of fact that the defendant being indebted to the plaintiff, the plaintiff proposed to give him the debt; that the defendant said a gift would not stand in law; that plaintiff said that if defendant would give him one dollar that he would make it lawful, and that he then proposed that if defendant would give him a dollar, he, plaintiff, would give him the entire debt; and
The case of Ferry v. Stephens, 66 N. Y. 321, was an action for specific performance of a contract to con. vey real estate. It appeared that S., the owner, intending to give plaintiff the property, executed the contract by which he agreed to convey it to plaintiff on payment of $1,100. However it was never intended that plaintiff should pay any thing, and S. subsequently indorsed upon the contract a receipt in full for the purchase price. No money was ever paid. The court held that the indorsement of the receipt constituted under the circumstances a valid gift of the amount due from plaintiff under the contract, and entitled her to specific performance as much as if she had actually paid that amount. It does not appear that there was any delivery of the receipt, but there must have been, as it was indorsed upon the contract which was in plaintiff's possession.
In Carpenter v. Soule, 88 N. Y. 251, the court found that plaintiff had executed a bond and mortgage to defendant's testator, and that subsequently such testator, with intention of giving plaiutiff $2,000 to apply on the bond and mortgage, executed and delivered to plaintiff an instrument, of which the following is a copy: "Received of J. S. Carpenter, of Norway, Herkimer county, New York, two thousand dollars to apon a bond and mortgage I hold against him, the saine to be indorsed on said mortgage." The $2,000 was never actually indorsed upon the bond and mortgage. The court said: "The question comes back to the inquiry whether there was such actual gift both intended and executed. That fact is found, and rests upon sufficient evidence. There must be a delivery of the gift; the donor must part with his dominion over it; it must not rest in a mere promise. But the character of the gift dictates the manner of its delivery. Here a receipt for so much of the mortgage debt was executed and delivered with the intention of giving it to the mortgagor. The mortgage itself was not delivered, because not wholly discharged, and the gift was executed by the delivery of the receipt which operated to cancel and discharge so much of the debt."
In Larkin v. Hardenbrook, 90 N. Y. 333, plaintiff's testator conveyed to defeudant certain real property