
    No. 5.
    Francis M. Mize, claimant, plaintiff in error, vs. Henry N. Ells, defendant in error
    The claimant is entitled under the Act of J 321, (Cobb 503) to withdraw his claims on the first trial and before there has been a verdict for damages awarded! against him, at any time before the jury retire from the box.
    Claim in Sumter Superior Court. Decision by Judge Allen, at March Term, 1857.
    The Sheriff of Sumter connly, by virtue of ay?, fa. issued, at the suit of Henry N. Ells vs. Mize & Dupree, levied on two billiard tables as the property of defendants.
    Francis M. Mize interposed his claim to the property levied on, and' the case was submitted to a ju cy. After the evidence-on both sides was closed, and before the jury retired, claimant proposed to submit to a verdict, which being declined,, he then moved to withdraw h?s claim, which the Court refused to allow.
    The jury retired aud found the property subject to theyiyk, and twenty per cent, damages on the amount of the debt.
    Claimant moved for a new trial, on the ground, that the Court erred in refusing to let claimant withdraw his claim, before the jury had retired to make up their verdict, and because said verdict as to the damages was against the evi dence.
    The Court refused the motion for a new trial, and claimant excepted.
    Hudson, represented by Stubbs & Hill, for plaintiff in error.
    Jno. R. Worrill, for defendant in error.
   By the Court.

Lumpkin, J.

delivering the opinion.

By the Act of 1821, {Cobb 533,) a party may withdraw his claim once at his own instance, and without the consent of the plaintiff in execution. May this privilege be exercised on the first trial, at any time, before the jury have retired to consider of the case? We see nothing in the statute itself, nor in the reason of the law, which restricts the exercise of this right, as was done by the Court in this case.

Our judgment consequently is, that the decision below be reversed.

Judgment reversed.  