
    The South Carolina Railroad Company vs. Bradford & Sanders.
    On receipts of the ~W. & A. Railroad Company, in Georgia, for twelve bales of cotton consigned to B. & S. in Charleston, and proof that the South Carolina Railroad Company usually received cotton sent as this was, and delivered it on such receipts in Charleston, B. & S. sought to charge the South Carolina Railroad Company for the twelve bales, alleging that they were lost: — Held, that the proof was insufficient, — there being no evidence at all that the cotton ever came ' into the possession of the last named Company.
    BEFORE O’NEALL, J., AT CHARLESTON, SPRING TERM, 1856.
    Tbe report of Ms Honor, tbe presiding Judge, is as follows: “ Tbis was an action brought to recover back money paid by mistake.. Tbe defendants claimed payment for twelve bales of cotton, marked N. IT., wbieb they alleged tbe Company, tbe plaintiffs, bad failed to deliver; tbe money was paid according to tbe claim. It turned out that all tbe cotton of tbe brand N. IT., wbieb tbe plaintiff, as a carrier, bad undertaken to deliver, bad been delivered to tbe defendants.
    "They pleaded a discount, that there were other twelve bales for which tbe' plaintiff, as a carrier, was liable, and which bad not been delivered.
    
      “ Tbe cotton thus claimed bad been placed on tbe Western and Atlantic Boad, at Chattanooga, and tbe receipts produced by tbe defendants were of tbe character of tbe one hereto annexed.
    “No receipt of tbe South Carolina Bailroad was produced, nor was there any evidence that that Boad bad tbe cotton alleged to be lost in its possession.
    
      “ I therefore held, that the South Carolina Railroad Company could not be charged for short delivery, on a mere receipt of the Western and Atlantic Railroad. If the South Carolina Railroad Company could be liable at all, on that receipt, it must be shown that it was a joint contractor, or carrier, with the Western and Atlantic Railroad, and then the discount could not be set up against the South Carolina Railroad alone. So that, until the South Carolina Railroad Company was in some way shown to have been in possession of the cotton lost, it could not be chargeable.
    “ Mr. Robinson proved that the South Carolina Railroad Company usually received cotton sent as this was ; and Mr. Simons, the drayman, proved that the South Carolina Railroad Company delivered the cotton contained in the receipts as far as it acknowledged it had it in possession. But the pinch of the defendants’ case was, that there was no proof whatever that the South Carolina Railroad Company ever had a bale of the cotton consigned to the defendants, in its possession, more than it delivered.
    “ The discount was therefore not allowed, and the plaintiffs had a verdict for the money paid by mistake.”
    (Copy Receipt.)
    Original.] Chattanooga.
    Western & Atlantic Railroad.
    To Georgia Railroad.
    No. 220 — -February 20, 1854. Received from D. Moore, twelve (12) bales of Cotton, consigned to Bradford & Sanders, at Charleston.
    Marks. G. Y. Bales. 12 Railroad to Atlanta, and delivered to the agent of the Georgia Railroad, under the following stipulations, viz: Roads liable for such injuries only as shall be established to have occurred while in their possession. Liability of roads, either for damage or loss, not to attaeh until the Cotton is laden on the cars, and to cease on the unloading of the same at its destination. That this receipt be exhibited at the depot at the point of destination for registry, before delivery of the Cotton, which will be subject to regular rates of storage, (payable by Consignee,) unless removed within forty-eight (48) hours after it. is unloaded from.the cars.
    
      Exceptions:
    
    Condition of Contents unknown.
    Registered by J. Welch, Agent. •
    R. Campbell.
    The defendants appealed, and now moved this Court for a new trial on the grounds':
    1. Because, ex equo et bono, the plaintiffs were not entitled to recover, inasmuch as it was proved that the money claimed for the twelve bales, marked N. U., was due for twelve bales in other marks short delivered.
    2. Because the Judge erred in non-suiting the defendants in their discount, on the ground that it was founded upon a joint contract, and could not be recovered from the plaintiffs, for the following, among other reasons:
    First — Because it was proved by Mr. Robinson that the South Carolina Railroad Company had received the Cotton, as carriers from Hamburg to Charleston.
    Secondly — Because it was proved by Mr. Simons that the receipts given by tbe Western and Atlantic Bailroad Company were tbe only evidences given or required by tbe Sontb Carolina Bailroad Company in 1854, for cotton carried on tbeir railroad from Chattanooga to Charleston, and that it was tbe usage of tbe road to deliver on these receipts.
    Thirdly — Because it was proved by Mr. Davis that tbe twelve bales of N. U., cotton were delivered on similar receipts.
    Fourthly — Because tbe receipts themselves were introduced merely to show tbe marks; that they do not negative tbe separate liability of tbe South Carolina Bailroad as carriers, created by tbeir acceptance of tbe cotton at Hamburg, and receipt of freight for tbe carriage.
    
      Memminger, for appellants.
    Conner, contra.
   Per CuriAM.

This Court concurs in tbe ruling of tbe Judge below.

Tbe motion is dismissed.

O’Neall, Wardlaw, Withers, Whither and Muhro, JJ., concurring.

Motion dismissed.  