Delivery is not necessary at common law to complete a sale of personal property as between the vendor and vendee; Benj. Sales § 315; as a sale passes title as soon as the bargain is struck without any delivery or payment ; Briggs v. U. S., 143 U. S. 346, 12 Sup. Ct. 391, 36 L. Ed. 180; but as against third parties possession retained by the ven dor raises a presumption of fraud conclusive according to some authorities; Hamilton v. Russell, 1 Cra. (U. S.) 309, 2 L. Ed. 118; Alexander v. Deneale, 2 Munf. (Va.) 341; Hudnal v. Wilder, 4 McCord (S. C.) 294, 17 Am. Dec. 744 ; Ragan v. Kennedy, 1 Ov. (Tenn.) 91; Jarvis v. Davis, 14 B. Monr. (Ky.) 533, 61 Am. Dec. 166; Bowman V. Her ring, 4 Harr. (Del.) 458; Thornton v. Daven port, 1 Scam. (Ill.) 296, 29 Am. Dec. 358; Chumar v. Wood, 6 N. J. L. 155 ; Patten v. Smith, 5 Conn. 196; Wilson v. Hooper, 12 Vt. 653, 36 Am. Dec. 366; Gibson v. Love, 4 Fla. 219 ; Sturtevant v. Ballard, 9 Johns. (N. Y.) 337, 6 Am. Dec. 281; 1 Campb. 332; Gould v. Hunlley, 73 Cal. 399, 15 Pac. 24; Freedman v. Mfg. Co., 122 Pa. 25, 15 Atl. 690; others holding it merely strong evi dence of fraud to be left to the• jury ; 3 B. & C. 368; Land v. Jeffries, 5 Rand. (Va.) 211; Terry v. Belcher, 1 Bail. (S. C.) 568; Callen v. Thompson, 3 Yerg. (Tenn..) 475, 24 Am. Dec. 587; Hundley v. Webb, 3 J. J. Marsh. (Ky.) 643, 20 Am. Dec. 189; Thomp son v. Blanchard, 4 N. Y. 303 ; Griswold v. Sheldon, id. 581; Marden v. Babcock, 2 Mete. (Mass.) 99; Cutter v. Copeland, 18 Me. 127; Erwin v. Bank, 5 La. Ann. 1; Bry ant v. Kelton, 1 Tex. 415; but delivery is necessary, in general, where the property in goods is to be transferred in pursuance of a previous contract ; 1. Taunt. 318; Bean v. Simpson, 16 Me. 49; and also in case of a donatio causa mortis; Wells v. Tucker, 3 Binn. (Pa.) 370 ; 2 Ves. Ch. 120 ; 9 id. 1; Daniel v. Smith, 64 Cal. 346, -30 Pac. 575 ; Debinson v. Emmons, 158 Mass. 592, 33 N. E. 706 ; Kirk v. McCusker, 3 Misc. 277, 22 N. Y. Supp. 780. To give validity to a gift, there must be such a delivery of the subject thereof as works an immediate change in the dominion of the property ; Gartside v. Pahlman, 45 Mo. App. 160. The rules re quiring actual full delivery are subject to modification in the case of bulky articles ; Girard v. Taggart, 5 S. & R. (Pa.) 19, 9 Am. Dec. 327; Bean v. Simpson, 16 Me. 49. See, also, Bailey v. Ogdens, 3 Johns. (N. Y) 399, 3 Am. Dec. 509 ; De Ridder v. McKnight, 13 Johns. (N. Y.) 294 ; Dutilh v. Ritchie, 1 Dall. (U. S.) 171, 1 L. Ed. 86 ; Currier v. Currier, 2 N. H. 75, 9 Am. Dec. 43 ; Smith v. Wheeler, 7 Or. 49, 33 Am. Rep. 698 ; Billingsley v. White, 59 Pa. 464 ; 2 Kent 508 ; BAILMENT; SALE ; C. 0. D. ; PLACE OF DELIVERY.
The word delivery is used in different senses, which should be borne in mind in considering the cases. Sometimes it denotes transfer of the property in the chattel and sometimes transfer of the possession of the chattel. When used in the latter sense it may refer either to the formation of the contract, or to the performance of it. When it refers to the delivery of possession in the performance of the contract, the buyer is sometimes spoken of as being in posses sion although he has only the right of pos session, while the actual custody remains with the vendor.
A condition requiring delivery may be an nexed as a part of any contract of transfer ; Savage Mfg. Co. v. Armstrong, 19 Me. 147.
In the absence of contract, the amount of transportation to be performed by the seller to constitute delivery is determined by gen eral usage.
The delivery of a contract in writing is necessary to its validity ; Ligon v., Wharton (Tex.) 120 S. W. 930.
See Escaow.
In Medical Jurisprudence. The act of a woman giving birth to her offspring. Pretended delivery may present itself in three points of view. First, when the female who feigns has never been pregnant. When thoroughly inves tigated, this. may always be detected. There are signs which must be present and cannot be feigned. An enlargement of the orifice of the uterus, and a tumefaction of the organs of generation, should always be present, and if absent are conclusive against the fact. 2 Annales d'Hygi4ne, 227. Second, when the pretended pregnancy and delivery have been preceded by one or more deliveries. In this case attention should be given to the following cir cumstances: the mystery, if any, which has been affected with regard to the situation of the female ; her age ; that of her husband ; and, particularly, whether aged or decrepit. Third, when the woman has been actually delivered, and substitutes a living for a dead child. But little evidence can be obtained
on this subject from a physical examination, Concealed delivery generally takes place when the woman either has destroyed her offspring or it was born dead. In suspected cases the following cir cumstances should be attended to: First, the proofs of pregnancy which arise in consequence of the ex amination of the mother. When she has been preg nant, and has been delivered, the usual signs of delivery, mentioned below, will be present. A care ful investigation as to the woman's appearance before and since the delivery will have some weight; though such evidence is not always to be relied up on, as such appearances are not unfrequently de ceptive. Second, the proofs of recent delivery. Third, the connection between the supposed state of parturition and the state of the child that is found; for if the age of the child do not correspond to that time, it will be a strong circumstance in favor of the mother's innocence. A redness of the skin and an attachment of the umbilical cord to the navel in dicate a recent birth. Whether the child was living at its birth, belongs to the subject of infanticide. The signs of delivery are very well collected in Beck's excellent treatise on Medical Jurispru dence, and are here extracted: If the female be examined within three or four days after the occurrence of delivery, the following circumstances will generally be observed: greater or less weakness, a slight paleness of the face, the eye a little sunken and surrounded by a purplish or dark-brown colored ring, and a whiteness of the skin like that of a person convalescing from disease. The belly is soft, the skin of the abdomen is lax, lies in folds, and is traversed in various directions by shining reddish and whitish lines, which especial ly extend from the groin and pubes to the navel. These lines have sometimes been termed linew albti cantos, and are particularly observed near the umbilical region, where the abdomen has experi enced the greatest distension. The breasts become tumid and hard, and, on pressure, emit a fluid which at first is serous and afterwards gradually becomes whiter. The areolas round the nipples are dark colored. The external geiital organs and vagina are dilated and tumefied throughout the whole of their extent, from the pressure of the fcetus. The uterus may be felt through the abdominal parietes, voluminous, firm, and globular, and rising nearly as high as the umbilicus. Its orifice is soft and tumid, and dilated so as to admit two or more fingers. The fourchette, or anterior margin of the perinssum, is sometimes torn, or it is lax, and appears to have suffered considerable distension. A discharge (term ed the lochial) commences from the uterus, which is distinguished from the menses by its pale color, its peculiar and welt-known smell, and its duration. The lochia at first of a red color, and gradu ally become lighter until they cease.
signs may generally be relied upon as indi cating recent delivery: yet it requires much ex perience in order not to be deceived by appearances. The lochial discharge might be mistaken for men struation, or leucorrhea, were it not for its peculiar smell ; though this is not absolutely characteristic. Relaxation of the soft parts arises as frequently from menstruation as from delivery ; but in these cases the os uteri and vagina are not so much tumefied, nor is there that tenderness and swelling. The parts are found pale and flabby when all signs of contusion disappear, after delivery, and this cir cumstance does not follow menstruation.
The presence of milk, though a usual sign of delivery, is not always to be relied upon ; for this secretion may take place independent of pregnancy. The wrinkles and relaxations of the abdomen which follow delivery may be the consequence of dropsy, or of lankness following great obesity. This state of the parts is also seldom striking after the birth of the first child, as they shortly resume their natural state. Positive proof of the occurrence of birth is furnished only by the discovery of parts of the ovum. In most cases the demonstration by the microscope of shreds of the deciduss with large. nucleated and fatty cells is of itself a sure proof; Winckle, quoted by Witthaus & Becker.
See,' generally, 1 Beck, Med. Jur. c. 7, p. 1 Chit. Med. Jur. 411; Ryan, Med. Jur. c. 10, p. 126; 1 Briand, Mid. Leg. liere partie, c. 5; Whart. & 5.; Witthaus & Becker, Med. Jur.