
    Davis, Kolb & Fanning, plaintiffs in error, vs. Henry K. Allen, defendant in error.
    f£Iie 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 ho delivered the letter at the office, is no evidence that the money was sent by mail.
    Assumpsit, from Coweta county. Tried before Judge Burr, 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 mailbags 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.
    3d. Because (he 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.
    
      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 Iiis 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.  