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Printup, trustee, v3. Trammel.

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Farrar, iha! 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. Becanise the notes sued on showed that defendant undertook and promised as the trustee of Mrs. Farrar, and not otherwise, and that an action ut 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 Conrt 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 terdered his bill of exceptions, and alleges as error:

ist. 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

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

panies chartered for similar purposes. Its business is transportation, 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 cousent 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 bes 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. Al

LEN, 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, 1557.

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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 plaintiff's 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 $4915 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 plaintiffs 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 plaintiffs 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 oflice 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 Goorgia 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 roferred to : The State vs. Lockhart, 24 Ga. Rep. p. 420.

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