Though the placing of cross-ties at a switch on the line of a railway company for its acceptance and use, and their subsequent removal by some one, might create a presumption that the ties had been accepted and used by the company, and a corresponding obligation on its part to pay therefor, yet where positive, unequivocal, and uncontradicted testimony denies that the ties were ever inspected or received by the company, this presumption- is legally rebutted. The verdict against the railway company in this case was therefore unauthorized, and the judge of the superior court erred in overruling the certiorari.

Judgment reversed.