Caldwell v. Wilson

Citations

• 29 S.C.L. 75

Syllabus

<p>1. Where matter of defence is something- distinct from a contradiction of the case first proved by the plaintiff, the plaintiff’s reply must be confined to this matter, and not be extended to a confirmation of the case he has made, much less to the making- of a new case. But when the defence is wholly or in part made by an attempt to disprove what the plaintiff has endeavored to establish, if the evidence in reply meets the matters offered in defence, or any of them, it is not under our practice objectionable, because it also furnishes, incidentally, cumulative proof of what the plaintiff first undertook to prove.</p> <p>2. Where, in an action of trover, the plaintiff first undertook to prove a gift of the property in dispute, by the declarations of the donor, and by proof of other circumstances from which the gift was to be presumed, and the defendant endeavored to resist this, by proof of the plaintiff’s declarations, and of other declarations of the donor, shewing either that there had been no gift made, or that there had been subsequent adverse possession, the plaintiff, in reply, was permitted to offer declarations of the donor, that he had given prior to any before shewn, which he insisted seemed to shew a long cherished purpose to give, and thus to remove the inferences which might have resulted from the equivocal declarations of the donor, which the defendant had proved.</p> <p>3. The testimony thus offered in reply by plaintiff, held admissible.</p> <p>4. Evidence in reply considered, and the English practice on this subject as distinguished from ours.</p> <p>5. Delivery is a transfer of possession, either by actual tradition from hand to hand, or by an expression of the donor’s willingness, that the do-nee should take wlien the chattel was present, and. in a situation to be taken by either party. (</p> <p>6. Where a party claimed a chattel under an alleged gift from an intestate, in whose hands it had remained till his death, the gift may be proved by a