
    The Savannah, Griffin and North Alabama Railroad Company, plaintiff in error, vs. Wilcox, Gibbs & Company, defendants in error.
    (Atlanta,
    January Term, 1873.)
    1. Carriers of Goods — When Liability Ceases. — Tlie liability of a common carrier ceases if the goods are taken from his possession by legal process.
    2. Same — Illegal Possession of Goods — Possessory Warrants. — A possessory warrant, which states that certain cotton having been lately in the peaceable and legally-acquired possession of A B, has been illegally taken out of his possession by some person unknown and placed on the cars of 'the Griffin and North Alabama- Railroad Company, and directing the seizure of the property and the arrest of said unknown person when found, is not a void Warrant. It is a warrant in which A B is the complainant, the railroad company the defendant, and it sufficiently charges the property to be in the possession of the railroad company, without lawful warrant. The order to arrest the unknown person, and the failure to direct the arrest of the company, do not make it_ void, if the property be, in fact, taken.
    3. Same — Seizure by Sheriff. — -It is not the duty of a common carrier to keep his doors locked and to refuse entrance to a sheriff, who comes to seize property in the possession of the carrier, if the sheriff have legal process.
    4. Same — Same.—When goods delivered to a common carrier for transportation were seized by legal process and taken out of his possession by the sheriff, and the carrier forthwith gave notice to the consignor and consignee, and they made no reply and took no further notice of the proceedings:
    Held, That the carrier had a right to presume they had abandoned the property, as subject to the legal process which had, seized it.
    Common carriers. Railroads. Possessory warrant. Before Judge Buchanan. Coweta Superior Court. September Term, 1872.
    *'Wilcox, Gibbs & Company brought complaint against the Savannah, Griffin and North Alabama Railroad Company, alleging that on November 20th, 1871, at Newnan, in the State of Georgia, plaintiffs delivered to the defendant two bales of cotton, of the value of $500 00, to be transported to the city of Savannah, there to be delivered to the plaintiff; that the defendant had failed to transport said cotton to Savannah and to deliver them according to its contract. The defendant pleaded the general issue, and that the cotton had been taken out of its possession by legal process.
    The evidence made the following case: On the day alleged in the declaration, the cotton was delivered to the defendant by James E. Jones, as the agent for plaintiffs. On the next day it was sent forward to Savannah, and on the day succeeding this, the shipper, Jones, was informed that the cotton had been seized at Griffin, Georgia, by the deputy sheriff of Spalding county, under legal process, and had be'en taken from the possession of .■defendant. Notice of -these facts was given to the plaintiffs at Savannah, some timé between November 28th and December 8th, 1871. On the 21st of November, J. T. Mann, a deputy sheriff of Spalding county, found the cotton in the possession of C. H. White, an agent of defendant, at Griffin, Georgia, and seized it under the following affidavit and warrant:
    “STATE OF GEORGIA — Spaeding County:
    “Personally appeared James S. Boynton, one of the law firm of Boynton & Dismuke, attorneys for'W. B. Wilkinson, and being sworn says, from information and belief, that in Coweta county, on the 20th day of November, 1871, as deponent is advised and believes, some party unknown to deponent, took and carried away from the peaceable and lawfully acquired possession of said W. B. Wilkinson, two bales of cotton marked O, of the value of $125 00, under some pretended claim or claims and without lawful warrant or authority, as this deponent is informed and believes, and that said W. B. Wilkinson bona fide claims a title to and the possession *of said cotton; and that said unknown party has shipped, or caused said cotton to be shipped on the train from Newnan to Griffin, and is now, as deponent is informed, on the train of the Savannah, Griffin and North Alabama Railroad, in Griffin, Spalding county. Wherefore deponent prays a warrant, in terms of the law, in such cases.
    (Signed) _ “JAMES S. BOYNTON.
    _ Sworn to and subscribed before me,
    this November 21st, 1871.
    “Wm. M. Ceines, ex officio J. P.”
    The warrant set forth the above affidavit, and continued as follows: “Wherefore you are commanded and authorized' to apprehend said unknown party when found and identified, and seize and take possession of and retain in your custody said two bales of cotton, and bring them before mq or some other judicial officer of Spalding county, that what appertains to justice may be done in the premises; according to the statute in such cases made and provided. Herein fail not.
    “Given under my hand and seal this November 21st, 1871.
    (Signed) “Wieeiam M. Ceines,
    “N. P., and ex officio J. P. [e. s.]”
    The cotton, at the time the deputy sheriff demanded it from the agent of defendant, was on the train at Griffin. White hesitated. for some time and consulted several persons before he delivered the cotton to the sheriff. The cotton was placed in a warehouse and Wilkinson notified of the fact. Afterwards, a Mr. Freeman caused a factor’s lien execution to be levied on said property. The lien execution was represented by John D. Stewa'rt, Esq. Mr. Boynton, the attorney representing the plaintiff in the possessory warrant, notified his client of this action. Wilkinson replied to Mr. Stewart and Mr. Boynton that a settle- • ment had been agreed upon between the plaintiff in the fi. fa. and himself, and requested that the cotton be sold. Stewart and Boynton never having heard of any one else claiming said prop-, erty, directed the sheriff to sell the same, which was done,. and the proceeds sent to Wilkinson *or Freeman. The sheriff took a sample of the cotton and went to the cotton-buyers, and sold it for the highest price offered. Theré never was any trial before a magistrate, and the defendant never appeared in person or by attorney in the matter. The cotton remained in the warehouse some two months before it was sold, no claim having been made to it except the factor’s lien already mentioned.
    The Court charged the jury as follows:
    “Genteemen oe ti-ie Jury: This is an action in which the plaintiffs allege that they delivered to the defendant, a common carrier, two bales of cotton at Newnan, Georgia, to be transported by defendant for hire, from Newnan to Savannah, and there delivered to plaintiffs; that said two bales of cotton, of a certain alleged quality and of a certain alleged value, have not been transported by defendant to Savannah nor there delivered to plaintiffs, although demanded. It is incumbent on the plaintiffs to prove the delivery of said cotton to the agent of defendant at Newnan, for the purpose of transportation as aforesaid, the value of said two bales of cotton, and the failure of defendant to deliver said two bales of cotton to plaintiffs at Savannah, upon demand, after a reasonable time for the transportation and delivery of the same. If you believe from the evidence that the plaintiffs have proven these things, the plaintiffs are entitled to recover the proven value of said cotton at Savannah, less the freight for transporting the same, unless the defendant alleges and proves some valid defense excusing the defendant for the non-delivery of said cotton to said plaintiffs. :
    “The diligence required of a common carrier is extraordinary, and the general rule is that nothing will excuse him for the non-performance of his contract except the act of God and the enemies of the State.
    “The defendant alleges that it was prevented .from complying with its contract by reason of said cotton having been taken out of the possession of the defendant by valid legal process. *“I charge you that if you believe from the evidence that these allegations of defendant are true, the plaintiffs would not be entitled to recover.
    “I charge you that the process must be a legal- process by which said cotton was seized (if you believe from the evidence that the same was seized) to justify the defendant for the nondelivery of said cotton.
    “If you believe from the evidence that the process was a possessory warrant, in which there was embodied the name of no defendant, like the one in evidence here, I charge you such possessory warrant was not legal process.
    “A .possessory warrant sued out against some unknown party would not be legal process, and the seizure of said cotton by virtue of said warrant would not excuse the defendant for the non-delivery of said cotton to plaintiffs at Savannah.
    “If you believe from the evidence, and in accordance with what' I have already charged you, that the process was legal, yet if the agent of the defendant at Griffin delivered the cotton to the deputy sheriff, before he had actually, seized it, the defendant would not be justified in the non-delivery of said cotton, and to have constituted a legal seizure of said cotton the officer s must have put his hand upon it or been so situated that he could have put his hand upon it.
    “I charge you that a legal seizure is the actual taking possession of or the ability and power of taking possession of the goods or chattels by the officer, and until this was done there was no seizure of said cotton.
    “If you believe from the evidence that the agent of defendant at Griffin voluntarily took said cotton from the cars, and thereby knowingly enabled the deputy sheriff to' seize said cotton, then such seizure (although the process might be legal) would not excuse the defendant, and your finding should be for the plaintiffs.”
    The jury returned a verdict for the plaintiffs for the sum of $190 92. Whereupon, the defendant moved for a new trial, upon the following grounds:
    1st. Because the Court erred in the charge to the jury in ^reference to the validity of the possessory warrant under which the cotton was seized.
    2d. Because the Court erred in the charge in reference to the liability of the defendant, even if the possessory warrant was legal.
    3d. Because the Court erred in tifie charge in reference to the duty of defendant as towards an officer endeavoring to execute valid legal process.
    4th. Because the verdict was contrary to evidence and to law.
    The motion was overruled, and the defendant excepted upon each of the grounds aforesaid.
    B. H. Hire & Sons; S. Freeman, for plaintiffs in error.
    A. D. Freeman, for defendant.
    
      
      Carriers of Goods — When Liability Ceases. — In a case of loss, a common carrier is not excused unless the same is occasioned by the act of God or the public enemy of the state. However, this is qualified with certain limitations as to when his liability ceases, when he is discharged from further prosecution of his • undertaking, as if it has been taken from him by legal process. Southern Ry. Co. v. Heymann, 118 Ga. 621, 45 S. E. Rep. 491, approving the principal' case.
      Same — Same.—“The liability of a common carrier ceases if the goods are taken from him by legal process.” Western & Atlantic Ry. Co. v. Trust Co., 107 Ga. 518, 33 S. E. Rep. 821, citing principal case with approval.
    
    
      
      Seizure by Sheriff. — The general rule is, that the property in the hands of a common carrier may be attached and that the carrier should not resist the process. Western R. Co. v. Thornton, 60 Ga. 312, citing principal case with approval.
      Same. — Resistance to a public officer while executing a legal process is a penal offense; if the officer could have made the levy had there been no resistance, then in contemplation of law, he could have made it in spite of the resistance. Western R. Co. v. Thomas, 60 Ga. 314, citing principal case with approval.
      Same. — Gee generally, title Possessory Warrants. Ency. Dig. Ga. Rep., vol. 10, p. 525. •■
    
   McCay, Judge.

It is true the text books, including "our Code, do announce that a common carrier can set up no excuse for the loss or destruction of goods but the act of God or the enemies of the State. But this has been always qualified with certain limitations as to when his liability ceases, when he is discharged from further prosecution of his undertaking, as if the owner of the goods himself receives them short of the place of destination, or if they are not delivered by the fault of the owner; or that they have been taken from the carrier by title paramount, and lastly, that they have been taken from him by legal process. He has not lost the goods; they have not been stolen or been destroyed, but his undertaking as a carrier has been determined: Redfield on Carriers, sec. 24, note; see also same book, 245; 18 Vermont, 186; 11 Vermont, 323; 1 Duer, 79; 37 Barbour, 112. We admit that the process which terminates this employment must be a legal one: McClel. & Y., 136; 10 East., 530; 11 Z. B., 517. And that, we suspect, is the hinge on which this case turns.

Was this a legal process? Without question, th,e Court *that issued it had jurisdiction: See Revised Code, 3956. Did it substantially comply with all the requirements of the Code? See section 3956. If there was a substantial compliance, the warrant, though irregular, was not void: See Revised Code, section 4, paragraph 6. The warrant issues on affidavit that the plaintiff had possession; that he had been unlawfully deprived of it by the defendant, or that the property disappeared without his consent, and is now in possession of defendant. This affidavit, in substance, sets forth these very things. It says that affiant was in the legal, etc.; that the property was taken out of his .possession, without lawful authority, by some unknown person, and that said person put it on the cars of the Griffin & North Alabama Railroad Company where it now is, in the county of Spalding. What is wanting? It is said in the affidavit that the property was unlawfully taken, and that the unlawful taker put it on the cars of the railroad company. But it is said there is no defendant. Why not? The railroad company is charged to have the cotton; it is charged to be now on its cars. We doubt if, in any possessory warrant, there is a more distinct pointing out of a defendant than this. The person in possession is the defendant. The magistrate seems to have treated the unknown person as the defendant, as he fails to order any arrest of the true defendant, and does order the arrest of one who is not the defendant. But this is a mere irregularity. It does not make the warrant void. The command to arrest the unknown taker of the property, who has not the actual possession, is mere surplusage. Nor is the failure of the warrant to direct the arrest of the railroad company such a want as to make the warrant void. The company, as such, could not be arrested; and the want of authority to make an arrest is only a wrong to the suer out of the warrant. Could the company, if it had appeared, object to the warrant for this reason? We doubt if the Court issuing the warrant would have dismissed it for that reason, especially if the property had been before the Court, since the whole object of the arrest is to force the delivery of the property. We think, therefore, this was not a void warrant. The magistrate had * jurisdiction; the affidavit pointed out a defendant, and substantially charged that the property was in possession of that defendant, (the company,) without lawful warrant or authority; the other defect was a mere irregularity, since, by the production of the property, the arrest (notice being given,) was made immaterial.

We think the Court erred in the other charge. If the warrant was legal, it was not in bad faith to the consignor for the agent to furnish all proper facilities to the sheriff to perform his legal duty. The evidence shows nothing but a proper performance of that duty which every man owes, as a good citizen, to the majesty of the law. We should hesitate long before we would say there is any relation in life that would make it the duty of one to keep his doors locked to shut out the sheriff who comes to execute a legal process. He may do so, it is true, in a certain class of cases, and the law may thus be baffled, but we know of no case where it is a man’s duty to baffle the law.

The notice that is proven to have been given to both the consignor and consignee, and the total failure of both to furnish to the company any evidence to enable it to resist the sworn statement of the complainant in the warrant, we think justifies the company in not looking further after the cotton. It was but a fair presumption that, as-neither of them, seemed-to-.care to go any further about contesting the claim, that it was a just one.

judgment reversed.  