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, Cubot & Co.
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,
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,
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.,
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,
See Guardian and Ward, 1, 2. Amendment 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,
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,
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,
3. A jury is bound to consider, even illegal testimony, if it goes before them, without objection. Thomas vs. Ellis,
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,
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. f. entered satisfied, "all but 18 cents;" the "all but 183 cents" being, by interlinea- tion, and in a different ink. Russell vs. Slaton,
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.,
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,
9. If a party acknowledge 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. Irwin vs. McKee,
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. Kearsey vs. Mayo,
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.
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.
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.
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.
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_vs. Wayne, adm'r.
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. 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 presume 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.
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