Rome Railroad Co. vs. Sullivan, Cabot & Co.

panies chartered for similar purposes.

Its business is trans

portation, and transportation along a continous line of road, parts of which belong to other companies. Its interest requires that it should enjoy all privileges granted to it under its broad powers, to ensure the greatest quantity of transportation, and it is certainly allowed to it to make all contracts for transportation over its own and connecting roads, which have been tolerated in other companies incorporated for similar purposes. Such contracts have been made and pronounced valid, under charters with, perhaps, a less extensive grant of power. This view of the case derives some support, perhaps, from the Act authorizing the State Road to be built.

The tenth section of that Act requires that the tracks of all branch roads contemplated by that Act, shall correspond in width with that of the State Road. The Rome Railroad is not mentioned in that Act, and I allude to it merely to show the legislative purpose or expectation, that there should be continuous transportation over the State Road and its branches

[4.] We are not to be understood to say, that one incorporated company along a continuous line of road, may bind other companies by a contract, without their consent or acquiescence, We do not go beyond what we express, that the Rome Railroad has the power to bind itself by such a contract, and the receipt given, we think, placed it under a legal obligation to deliver the cotton to the agent of the South Carolina Railroad, at Angusta.

[5.] If there be no special contract, the company is not bound, as a matter of course, to carry freight beyond the terminus of its road, but if it be directed to a place beyond, it is bound to deliver it over to the proper custody, to ensure its due transportation.

Judgment reversed.

Davis, Kolb & Fanning vs. Allen.

DAVIS, KOLB & FANNING, plaintiffs in error, vs. HENRY K. ALLEN, defendant in error.

The delivery of a letter with money to the messenger who carries mail bags to the post office from the cars and back, without proof that he delivered the letter at the office, is no evidence that the money was sent by mail.

Assumpsit, from Coweta county. Tried before Judge BULL, September Term, 1857.

This was an action brought in the Court below by the firm of Davis, Kolb & Fanning for $49 15. On the trial the defendant proved that the plaintiffs had instructed him by letter to remit to them the said account by mail. He also proved by John R. Alexander that while he (Alexander) was acting as post master at Newnan, the defendant came to him at the post office, with an uninclosed letter in his hand addressed to plaintiffs, and had $49 15 which he wished to mail to them. That witness stated to the defendant that it was too late to mail the money in the post office on that day. Witness put the money in the letter and sealed it up and gave it back to the defendant, and the defendant took the letter down to the depot and gave it to a man named Rucker, who was the mail messenger to take mail bags to and from the post office, and saw the said Rucker go towards the cars with the mail bag in one hand and the letter in the other, but did not see him put it in the post office or the cars.

The jury found a verdict for the defendant, and the plaintiff's moved for a new trial on the following grounds:

1st. Because the verdict was contrary to evidence and without evidence.

2d. Because the Court erred in charging the jury that if they believed from the circumstances that the debt had been paid, then they would find for the defendant, there being no evidence before the jury authorizing this charge.

The Court overruled the motion for new trial, and to this decision of the Court the plaintifls excepted.

The State of Georgia vs. Woodley.

LIGON; and SIMMS, for plaintiffs in error.

BUCHANAN & W., contra.

By the Court.-MCDONALD, J. delivering the opinion.

A person directed to send money by mail must prove a literal compliance with the order, by depositing the money in a letter in the post office, or by delivering it to the post master or his known agent in the post office. The debtor Allen was not discharged from the debt by delivering the letter to the messenger Rucker, who merely carried the mail bags to the post office from the cars and back. He made him his agent merely, to deposit the letter in the post office and should have proved that he delivered it according to instructions.

The judgment of the Court below must be reversed.

Judgment reversed.

THE STATE OF GEORGIA, plaintiff in error, vs. GEORGE W. WOODLEY and others, defendants in error.

See the case of The State of Georgia vs. William H. Lockhart, decided at Macon, Junuary Term, 1858, and which covers every point made in this record.*

Scire facias to forfeit recognizance, from Henry county. Decision by Judge CABINESS, at October Term, 1857.

George W. Woodley being charged with the offence of simple larceny, (stealing a buggy and harness, the property of the estate of Raleigh Hightower, deceased,) entered into recognizance with sureties, conditioned to appear at the next

*NOTE: The case referred to: The State vs. Lockhart, 24 Ga. Rep. p. 420.

The State of Georgia vs. Wo Ley.

Superior Court of Henry county, to answer the charge &c. He failed to appear and an order of forfeiture of his recognizance taken, and scire facias issued against the accused, and sureties to show cause why the judgment of forfeiture should not be made absolute.

The sureties appeared and pleaded, 1st. Nul tiel record; 2d. InsuTciency of the indictment; 3d. Death of their principal, and 4th. Non est factum

Couns for the State demurred to the second and fourth pleas. The Court overruled the demurrer, holding that the order of forfeiture was only a judgment nisi, and that defendants were not precluded or estopped thereby from making any defence, which at any time they were entitled to make.

The Court having ruled and decided that all the allegations of the scire facias must be proven and that the indictment must be produced, counsel for the State read the scire facias, and offered in evidence the judgment of forfeiture nisi, the recognizance, the indictment with the entry thereon of "true bill," with all the other papers of record in the case.

Defendants demurred to this evidence, and after argument the Court sustained the demurrer, holding:

1st. That there was a fatal variance between the crime. charged in the indictment, and that set out in the recognizance and scire facias.

2d. Tha there was a variance between the order of forfeiture or judgment nisi, and the recognizance. That the crime of simple larceny was defined in the penal code to be the wrongfully and fraudulently taking and carrying away the personal goods of another, with intent to steal the same. The offence alledged in the recognizance was the wrongfully and fraudulently taking and carrying away a carriage commonly called a buggy, the property of the estate of Raleigh Hightower, deceased. The buggy was not alleged to be the property of any person and therefore the crime charged did. not come within the definition of theft or simple larceny in the penal code.

Mickelberry & Mobley vs. Shannon, adm'r.

3d. The Court further held that the crime charged in the indictment was the stealing a buggy, the property of

Hightower and

Hightower, administrators of Raleigh Hightower, deceased, and was variant from the one recited in the recognizance and scire facius, and did not amount to the offence of simple larceny.

Whereupon the Court ordered the scire facias to be dismissed, and counsel for the State excepted.

JAS. R. LYON, and CLARK & LAMAR, for plaintiff in error.

ALFORD & MOORE; and J. J. FLOYD, contra.

By the Court.-LUMPKIN, J. delivering the opinion.

All the points in this case, were fully argued and ruled adversely to the plaintiff in error in the case of the State of Georgia against William H. Lockhart, from the Chattahoochee Circuit, decided at Macon, at the last Jannary Term, of this Court, not yet reported.

Judgment affirmed.

MICKELBERRY & MOBLEY, plaintiffs in error, vs. JOHN SHANNON, administrator, defendant in error.

A. and B. give their note payable to C., for the hire of a negro for a particular year. The negro having been previously hired to another person, the note is returned to B., who, for a consideration, re-issues it to D.

Held, that the original note having become functus upon its re-delivery to one o the makers, on account of the failure of consideration, could not be re-issued by B., especially to one who had a knowledge of all the facts.