Mickelberry Certiorari, from Mo NESS, at August Ter John Shannon, was sued in a Jus five several prom $5 00. It was agree one of the cas The follow "$30. By promise to p or bearer, th man Clem. [Signe Shann eration, notes, th Clem, t Chap, trustee, vs. Trammel. and when it comes back unpaid, and er, it ceases to be a bill. If it were Suld be liable, for which there is no the consideration is expressed to be which was never delivered; and on He was returned to Mays. And Clower erwards paid Mays for the note. This is and new contract. Judgment affirmed. PRINTUP, Trustee, plaintiff in error, vs. WILLIAM stee is not liable out of his own estate, on a note given by him " as small 1 and so expressed when the consideration of the note enured exfore dey to the cestui que trust. notes ly to the re the Act of 1856, trust property could be subjected to the payment of lebts, through a Court of Equity only. hire nplaint, from Floyd county. Tried before Judge HAM COL CO is was an action by William T. Trammel against DanPrintup, as trustee, for Mrs. Abbey Farrar, on two proory notes, each for $150, which defendant, as trustee for Abbey Farrar, promised to pay, &c. Signed "Daniel S. atup, trustee for Mrs. Abbey Farrar." t was proven on the trial, among other things, that the Asideration of the notes sued on, was a town lot in Rome, hich plaintiff sold to Samuel Farrar as the agent of Mrs. Printup, trustee, vs. Trammel. Farrar, that the trade and bargain for the lot was made with Mr. and Mrs. Farrar, and that defendant had nothing to do with the terms or consideration of the contract. Upon the trial on appeal, defendant moved to dismiss the. action: 1st. Because the notes sued on showed that defendant undertook and promised as the trustee of Mrs. Farrar, and not otherwise, and that an action at law, could not be brought on them against him as trustee. 2d. Because in Equity only could the rights of the parties be properly adjudicated. The Court refused the motion to dismiss, and defendant excepted. After the testimony on both sides had closed, the Court charged the jury, that although the defendant gave the notes as trustee, yet he was liable personally, and the plaintiff had the right to recover at law: that defendant was not bound to give notes as trustee, but if he did so, the presumption of law was, that he had the means in his hands to protect himself. That as trustee, defendant had the right to appeal, but if the jury believed from the evidence that the appeal was for delay only, it was their duty to award damages not exceeding 25 per cent. as in their judgment they should think just. To which charge defendant excepted. The jury found for the plaintiff three hundred dollars with interest and cost, and twenty dollars damages. Whereupon defendant tendered his bill of exceptions, and alleges as error: 1st. The refusal of the Court to dismiss the action. 2d. The charge of the Court. 3d. The verdict, as contrary to law and evidence. VOL. XXV.-16 Printup, trustee, vs. Trammel. payable to A. or order: and when it comes back unpaid, and is taken up by the drawer, it ceases to be a bill. If it were negotiable, Hodgson would be liable, for which there is not color." In the note before us, the consideration is expressed to be for the hire of a negro, which was never delivered; and on that account the note was returned to Mays. And Clower swears, that he afterwards paid Mays for the note. This is entirely another and new contract. Judgment affirmed. DANIEL S. PRINTUP, Trustee, plaintiff in error, vs. WILLIAM T. TRAMMEL, defendant in error. [1] A Trustee is not liable out of his own estate, on a note given by him " as trustee," and so expressed when the consideration of the note enured exclusively to the cestui que trust. [2.] Before the Act of 1856, trust property could be subjected to the payment of trust debts, through a Court of Equity only. Complaint, from Floyd county. Tried before Judge HAMMOND, at August Term, 1857. This was an action by William T. Trammel against Daniel S. Printup, as trustee, for Mrs. Abbey Farrar, on two promissory notes, each for $150, which defendant, as trustee for Mrs. Abbey Farrar, promised to pay, &c. Signed "Daniel S. Printup, trustee for Mrs. Abbey Farrar." It was proven on the trial, among other things, that the consideration of the notes sued on, was a town lot in Rome, which plaintiff sold to Samuel Farrar as the agent of Mrs. Printup, trustee, vs. Trammel. Farrar, that the trade and bargain for the lot was made with Mr. and Mrs. Farrar, and that defendant had nothing to do with the terms or consideration of the contract. Upon the trial on appeal, defendant moved to dismiss the. action: 1st. Because the notes sued on showed that defendant undertook and promised as the trustee of Mrs. Farrar, and not otherwise, and that an action at law, could not be brought on them against him as trustee. 2d. Because in Equity only could the rights of the parties be properly adjudicated. The Court refused the motion to dismiss, and defendant excepted. After the testimony on both sides had closed, the Court charged the jury, that although the defendant gave the notes as trustee, yet he was liable personally, and the plaintiff had the right to recover at law: that defendant was not bound to give notes as trustee, but if he did so, the presumption of law was, that he had the means in his hands to protect himself. That as trustee, defendant had the right to appeal, but if the jury believed from the evidence that the appeal was for delay only, it was their duty to award damages not exceeding 25 per cent. as in their judgment they should think just. To which charge defendant excepted. The jury found for the plaintiff three hundred dollars with interest and cost, and twenty dollars damages. Whereupon defendant tendered his bill of exceptions, and alleges as error: 1st. The refusal of the Court to dismiss the action. 2d. The charge of the Court. 3d. The verdict, as contrary to law and evidence. VOL. XXV.-16 Rome Railroad Co. vs. Sullivan, Cabot & Co. amongst the different roads. This extract shows that the entire freight was paid at Augusta, and the amount divided amongst the several roads. No freight was paid to the South. Carolina Railroad, and none was apportioned to it. After the submission of testimony by the plaintiffs, to show a breach of the contract as alleged, they closed their case; whereupon, the defendants moved for a nonsuit on the grounds set forth in the statement of the case. We think a nonsuit ought to have been awarded on the first ground taken in the motion. The receipt is the evidence of the contract, and according to that, the undertaking was to deliver the cotton to the agent of the South Carolina Railroad, at Augusta. [2] We think that the mark of the names of the consignees on the cotton, and their place of business or residence, was no part of the contract. Nor was it evidence of the contract. It was merely a direction to the railroad companies or their agents, as to its ultimate destination. It certainly cannot control the express undertaking contained in the receipt. The contract was to deliver to the agent of the South Carolina Railroad, at Augusta, Ga. If this was done in proper time, and in good condition, the contract was performed. If the defendant did not do this, it became responsible for all damages accruing from the failure. As there was no proof of the contract, as alleged, a nonsuit ought to have been awarded on that ground. The second ground, (nor indeed, the third or fourth in the motion,) ought not to have been sustained by the Court, and the presiding Judge committed no error in overruling them. The charter of the company makes it a common carrier, as respects goods, wares, merchandise, produce, &c., and vests it "with full power and authority to do and perform all and every corporate acts as are permitted or allowed to other companies incorporated for similar purposes." Acts of 1839, page 139. [3.] The powers granted are very comprehensive, and embrace whatever has been allowed or permitted to other com |