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ton, South Carolina, is not supported by proof that it
was to be delivered to the Agent of the South Carolina
Railroad, at Augusta. Rome Railroad Co. vs. Sullivan,
Cabot & Co.

228

3. A recovery in an action of covenant for a breach of
warranty of the soundness of a slave, may be pleaded
in bar of a second action for a false warranty of sound-
ness of the same slave, on the same sale. Mitchell vs.
Gillespie,

346

4. If the city authorities remove its Marshal for a speci-
fied cause, and it be determined that such cause did
not warrant the removal, and the Marshal sue for his
salary and fees, the city authorities may aver and prove
other matters good in law to justify the removal. The
Mayor &c. of Macon vs. Hays, adm'r,

590

5. A plea by one of two persons sued as partners, that
he did not sign the note sued on, or authorize any
other person to sign it for him, and that he was not
one of the partners, when the debt was contracted, is
not a plea in abatement, but a plea in bar. Holman
vs. Carhart, Bro's & Co.,

608

6. To sustain a motion to dismiss, made by way of de-
murrer to the declaration, the motion will not be allow-
ed, unless every material fact on which the motion is
founded, is apparent in the declaration. Bower vs.
Douglass, adm'r,

714

See Guardian and Ward, 1, 2. Amendment 2.

See Set-off.

POOR CHILDREN.

See Wills, 2.

POSSESSION OF PERSONAL PROPERTY.

Possession of property is prima facie evidence of title;
and where the possession is joint, the presumption is
in favor of the party who exercises principally, if not
exclusively, acts of individual control and dominion
over the property. Reid vs. Butt, adm'r,

28

PRACTICE IN SUPERIOR COURT.

1. It is not error for the Court to arrest the argument of
counsel on a point to which there is no evidence.
Doster vs. Brown,

24

2. On the trial of a case, when the evidence had closed,
the Court “directed counsel for the plaintiff, to go on
and state his points relied on for a recovery, to the ju-
ry. Plaintiff's counsel did so. Defendant's counsel
then asked the Court, to give the law in charge to the
jury; whereupon, counsel for the plaintiff, insisted
that he had a right to argue his case to the jury.” The
Court refused to allow him to do so.
Held, That the Court erred. Cartwright vs. Clopton,

85

3. A jury is bound to consider, even illegal testimony,
if it goes before them, without objection. Thomas vs.
Ellis,

137

4. If counsel have leave of absence, it dispenses with
the discharge of any and every professional duty im-
posed upon them by the business of the Court at that
Term. Hamilton vs. Conyers,

158

5. The Court is not bound to grant a motion, made in
the midst of the trial, to require the Sheriff to execute
a deed in pursuance of a sale by a former Sheriff, that
took place more than twenty years before ; and took
place under a fi. fu. entered satisfied, "all but 182
cents;" the “all but 18 cents” being, by interlinea-
tion, and in a different ink. Russell vs. Slaton, 193

6. Counsel have no right to argue before the jury points
to which there is no evidence. Dickerson vs. Burke, 225

7. On an issue of fraud, tendered by the creditors, to an
application by a debtor, to take the benefit of the Act
passed for the relief of honest debtors, counsel for the
creditors are entitled to open and conclude the argu-
ment. Johnson, vs. Martin et al.,

268

8. In a case in the last resort, when the witness is in
Court, and counsel on each side are to be heard on the
evidence, his testimony ought to be received, notwith-
standing the case may have been partially argued be-
fore the jury, the opposite party not being surprised by
its reception. Parker vs. Johnston, adm'r,

• 576

9. If a party ackuowledge service, at the appearance
Term of the Court, of the process and complaint, he
shall not be allowed to dismiss the cause for want of
service at the trial Term. Laramore et al., vs. Chastain, 592

10. It is almost a matter of course, to let in new evidence
on a point, to save a nonsuit. McColgan vs. McKay, 631

11. Too late to object to process after party has appear-
ed, confessed judgment, and entered an appeal. rwin
vs. McKee,

646

12. Surety to appeal bond, against whom the plaintiff
failed to enter judgment at the Term when the verdict
was obtained may oppose a motion, at a subsequent
Term, to enter judgment against him by any evi-
dence which will establish fraud in the verdict against
him, and he is not compelled to make affidavit of the
truth of the facts on which he relies. Dennard L.
Kearsey vs. Mayo,

681

PRACTICE IN SUPREME COURT.

1. When a question of fact, is by agreement referred to the
Court, and there is evidence on both sides of the ques-
tion, the decision, be it which way it may, will not be
reversed by the Supreme Court. Sullivan vs. Richard-
son & Ketchum.

154

2. If defendant in error relies, as a defence, upon a re-
lease of the errors assigned in the record, he must plead
it. Bigby vs. Powell, adm'r.

244

3. If a party be entrapped, by misrepresentations, to join
issue on assignment of error, he ought, as soon as he
discovers it, show it to the Court and move to with-
daw his joinder. Id.

4. This Court will not interfere with the order of busi-

ness, unless it appears that the presiding Judge exercis-
ed discretion in that respect illegally. Larumore vs.
Chastian.

592

5. After the Superior Court has passed an order under
the Act of 1856, making a child the adopted child of a
person not his parent, if the same Court have the pow-
er to rescind the order, it is a matter of discretion with
it which this Court cannot control. Rives, guar-
dian, vs. Sneed.

612

PRESUMPTIONS.

1. Where an unmarried son lives with his father, the
presumption is that the property on the place belongs to
the father. If the father lives with the son, the presump-
tion is the other way. Reid vs. Butt, adm'r.

2. L. gives a mortgage to secure H. & H. for certain
funds advanced by them for him, before that time, as
well as to indemnify and save them harmless for any
advances, acceptances, or endorsements, made thereaf-
ter by the mortgagees for and on account of the mort-
gagor:
Held, That upon the production by mortgagees of drafts
and acceptances, corresponding to the description of in-
debtedness, specified in the instrument, that the pre-
sumption was, that they had been paid by the holders
out of their own funds, and upon the credit of the mort-
gage, and not out of the funds of the drawers, Lewis us.
Wayne, adm'r.

167

3. R. petitioned the City Council of Augusta to build
two new stalls at a Market House, stating that he would
rent one of them at $300 a year. The Council adopt-
ed a motion granting the request. At the next meet-
ing, this motion was reconsidered. It did not appear,
but that there was a standing rule making the action
of one meeting subject to be reconsidered by the next
meeting
Held, That the jury were at liberty to presum that
there was such a rule and if such a rule existed, the
Council was not concluded by its first action, but
might reverse that action. Red vs. The City Council
of Augusta.

386

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