#### Samuel Simpson *v.*James S. Blount.

Where evidence proper for one purpose was, by the counsel who introduced it, urged to the jury as proof of a fact to which. it is incompetent, and the counsel on the other side replied to.this argument, but moved for no specific instructions on this head from the bench, *it was*held, that the judge committed no error in not noticing it in his charge.

Trespass ojiare cbausum eregit, tried on the fall circuit of 1839, at Beaufort, before his Honor Judge Bohnebr.

'The plaintiff claimed under a grant issued in' 1770, and deduced a regular title from the grantee to himself. He then, upon the point of possession, proved that the *locus in quo*was a swamp, entirely uncultivated, and that in the years 1774, 1814 and 1822, three several persons had, under a licence from him, cut timber on the land.

. The defendant claimed under a grant dated in the year 1743, to one *tiavmcl*Boahvell, and one question in the *35oause was, whether this grant covered the *locus in quo.*Upon this point the defendant offered a deed, dated in 1748, whereby *Samuel Boatwell*conveyed to one *Godley,*a tract of land patented by *Edward Salter,*and calling for the lines of *Samuel Boatwell,*senior, and *Samuel Boatwell,*junior, as two of its boundaries. The plaintiff objected to this deed, as not being evidence in relation to the boundaries of *BoatweWs*grant of 1743. But the defendant insisting that it was one of the mesne conveyances under which he claimed, his Honor permitted it to be read. It was in proof, that there were two *Samuel Boatwells,*who had been long dead, but no evidence was given as to which of" them was the vendor in that deed.

The plaintiff examined one *Cherry,*a surveyor, who, had surveyed the adjacent lands about twenty years before, in consequence of a suit then pending between him and one *Bryan Blount,*who testified to the beginning corner upon the plat made under a survey ordered in this cause. He also offered to the jury the plat made by the "witness in the suit with *Bryan Blount.*This testimony was objected to by the defendant, and injected by the presiding judge.

In addressing the jury upon the question of boundary, the defendant’s counsel adverted to the fact, that the deed of *Boatwell*to *Godley*called for the lines of *Samuel Boatwell,*junior. The plaintiff’s counsel, in his reply, insisted, that the calls of this deed were not evidence on the question of boundary — contending that the vendor "was the same *Samuel Boatwell,*to whom the grant of 1743 issued ; and in urging that the deed was not evidence as to the question of boundary, he stated that he affirmed this under the correction of the court. Upon this observation of the counsel no remark was made by the judge.

His Honor charged the jury, that if the plaintiff had title to the *locus in quo,*that title gave him a constructive possession, which was sufficient to enable him to sustain this *action;*but that if they believed the defendant had succeeded in showing that the plaintiff had no *36title, but that the title was in another, although the defendant could not deduce it to himself, that then, in order to entitle himself to recover, the plaintiff ought to show an actual possession *;*and that his having, at the times above mentioned, permitted others to cut timber on the land, was not evidence from which they could infer an actual possession. Nothing was said to the jury respecting the deed of *Boatwdl;*neither was his Honor requested to instruct them upon any particular point.

A plat, made on an. order of survey in one cause, is not evidence on the trial of another between different parties.

Actual possession of land consists in exercising1 that dominion over it, and ¡making thatpro-fit from it, of ■which it is susceptible in its natural situation.

A verdict ivas returned for the defendant, and the plaintiff appealed.

The case was argued by Gaston, for the plaintiff, and *Hogg,*for the defendant. ■

Rueein, Judge.

The plat made by *Cherry*was not-evidence at all. If it was necessary and competent to prove the beginning of the line run by him, that had been done by tho witness himself, and the point designated, in his testimony to the jury, on the plat then before them, and made in this cause. The only purpose, for which admission of the other plat was sought, *must*have been to mislead the jury, by letting them see how *Cherry*ran the line from that beginning, in the hope that they would regard that as the true line. This conclusion they could not properly draw, either from' the fad that *Cherry*had run it, or that one of the parties, for whom he was then surveying, had insisted on it as the line.

The instruction upon the point of possession was also correct. I do not accord with the counsel for the defendant, that in the absence of title, actual possession, time is, by residence, or inciosure and cultivation, must he shown, to support trespass. The argument is, that tho* swamp, the land is susceptible of draining and cultivation ; and nothing short of that should be taken to he a possession,, when, from the nature of the subject, *that can*be done. 1 think the rule is, that exercising that dominion over the thing, and taking that use and profit, which it is capable of yielding *in its present*state, is a possession. It is all that can ho done, until the subject it-elf shall he changed. It is like the case stated in the hooks, *37of cutting rushes from marsh. This' is sufficient, tho’ it might appear that dikes and banks would make the marsh arable. But acts of this description must partake of the character of ownership, and of .a continued assertion of right and exercise of it. Occasional acts, with long intervals between them, do not denote title, nor the claim of dominion ; at least, they are very ambiguous evidences, and may as well be taken for the wrongs of a trespasser, as the assertion of a rightful dominion. Here, there has been a cutting of timber on three occasions only in sixty years — since *1770;*and the last time was seven or eight years before this suit. They create neither a presumption of title, nor presént possession.

But these- acts must be characteristic of ownership. If at long intervals,and con sistent with the acts of a trespasser, they are not. sufficient.

Without entering into the inquiry, whether the deed from *Boatwell*was, under the circumstances, evidence of boundary, the court thinks the judge below com-, mitted no error touching it. When offered for that purpose, it was not admitted by the court. When offered as a link in the chain of title, it was properly received. It was uneandid in the counsel, when ho failed to make out a title, to draw it to the aid of his cause upon am other point, to which the court had held it not tó be evidence. The court might properly have stopped him, and' reprehended the-unrespectful demeanor. But it is not error in law not to have done it. The opposite counsel might also have called upon the court to correct a course-of argument, not founded upon legal'evidence, and injurious to the side* witli the care of which he was charged. If he would not move the court to interpose, but chose to rely on his own reply to the jury, he cannot complain-that the judge did not, of his own accord, do it. The-party must move the court, before he can impute error, in a case of this sort. The counsel did reply, and properly to the argument. The judge gave the reply his sanction *;*for his silence, under the circumstances, was a sanction. But if it were not, the court is not bound, in summing up to the jury, to notice every position -discussed between the counsel, which would lead to.most *38inconvenient prolixity. If any thing deemed material be omitted, the counsel can call the attention of the court to it, and pray an instruction. A refusal would constitute error, when .an omission would not. Many cases do not require a charge from the *court;*and few a full one. Something must be left to the discretion and sense of propriety of the presiding judge. And at all events, it is not error for the court not to he active, when the party has not moved it.

Per Curiam — Judgment appirmeb.