"2d.  That  he  did  not  take  and  subscribe  the  proper  oaths  of
office,  and  cause  the  same  to  be  endorsed  upon  his  commission.
"To  these  it  was  replied :  1st.  That  the  said  Master  did  sue
out  a  commission ;  2d.  That  he  did,  in  virtue  of  the  election  of
1844,  enter  upon  the  duties  of  his  office.  Issue  was  joined,  or
made  up,  under  these  replications.
"The  bond  was*  given  in  evidence ;  the  penalty  was  $30,000;
its  condition  recited  the  election  of  Mr.  Laurens,  in  December,
1844,  and  was  conditioned,  as  required  by  the  Act  of  1829,  (6
Stat.  383,)  that  the  said  E.  R.  L.  shall  well  and  truly  perform
the  duties  of  said  office,  as  now  or  hereafter  required  by  law,
during  the  whole  period  he  may  continue  in  said  office.  It  was
proved  that  Mr.  Laurens  was  in  discharge  of  the  duties,  and
fully  recognized,  in  and  out  of  Court,  as  Master,  from  Decem-
ber, 1844,  to  February,  1849.  It  appeared  further,  in  proof,  that
Mr;  Laurens  was  first  elected  in  December,  1836,  and  was  suc-
cessively re-elected  in  December,  1840,  1844,  and  1848.
"  The  plaintiff  here  rested,  and  a  motion  was  made  for  a  non-
suit, on  the  ground  that  the  case  was  not  made  out    I  thought


218  APPEALS  AT  LAW.
State  of  So.  Ca.  w.  Toomer.
it  was.  For  one  found  in  office,  and  in  the  discharge  of  its
duties,  is  presumed  to  be  rightfully  there.  The  motion  was
overruled.
"  The  defendant  then  produced  the  commission,  bearing  date
the  7th  of  May,  1845.  It  recites  an  election  in  December,  1844.
The  oath  of  allegiance  was  taken  and  endorsed  on  the  8th  of
May  ;  no  other  oath  was  endorsed.
