
    *Abel D. Breed, lessee, plaintiff in error, vs. Richard V. Mitchell, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Railroad — Nonresident Lessee — Liability of. — A non-resident of this State, who is the lessee of a railroad in this State, and therefore liable to be sued as was the railroad company, is none the less liable to be proceeded against by attachment as other non-residents are.
    2. Carriers — Goods Damaged by — Duty to Repair. — Where goods arrive at their point of destination and the packages or casks are, by the fault of the carrier, in a damaged condition, so that they cannot be handled without loss and further damage, it is the duty of the carrier to repair the casks, if possible, before the owner can be compelled to receive them, and if he refuse to do this the owner may refuse to receive the goods and may recover the value, and this without offering to pay the freights, since the carrier has not completed his undertaking.
    3. Same — Reception—Presumption, Prima Facie Good Order, — - Goods are prima facie presumed to have been received by a carrier in good order for shipment, and if they were not so, it is for the carrier to show it.
    Attachment. Railroads. Carriers. Presumption. Before Judge Harvey. Floyd Superior Court. January Adjourned Term, 1872.
    Mitchell sued out an attachment against Breed, as lessee of the Selma, Rome and Dalton Railroad Company, returnable to the nine hundred and nineteenth district, for the sum of $66 54. The defendant traversed the ground of attachment, claiming that Breed, as lessee, resided within the State of Georgia, and as such, was suable in the same manner as said railroad company could have been sued, had it not been in Breed’s hands, as lessee. The defendant pleaded the general issue, and that said claim was based upon a failure of defendant to deliver six barrels of oil, and such failure was due to the fact that plaintiff had not paid the freight thereon.
    
      The magistrate rendered .judgment against the defendant. Whereupon the case was carried by appeal to the Superior Court. Upon the trial in this last tribunal, the evidence made the following case:
    Plaintiff bought six barrels of oil in Baltimore. They were conveyed by the defendant to Rome. Upon their arrival four *barrels were in good order, but two were leaking. Plaintiff was willing to take the four barrels; the agent of defendant would not allow this, but insisted upon his receiving all. The agent stated that the defendant would be responsible for all the damages which had accrued up to the time of delivery, but would not settle for the leakage between the depot and plaintiff’s store. The agent refused to put the two damaged barrels in good order. Plaintiff was willing to receive the oil if the agent would be responsible for the leakage after it left the depot, or if he would put the two barrels in good order. Breed resides in the State of Ohio. The agent was often served with legal process in suits against defendant. Plaintiff sued for the wholesale price of the oil. No freight was paid or tendered.
    The jury returned a verdict for the plaintiff. Whereupon the defendant moved for a new trial upon the following grounds:
    1st. Because the verdict was contrary to the law and the evidence.
    2d. Because the verdict was contrary to the following charges of the Court: “That if the said lessee had an agent in the county
    on whom service of writs could be perfected, an attachment would not lie.”
    3d. Because the Court erred in the following charge: “If the goods are in bad order by the fault of the carrier, the consignee may require him to put them in order before he receives them, so far as it is practicable for the carrier to 'do so, and if there is anything more for the carrier to do-before he can deliver the goods in the condition his contract requires him to deliver them in, he is not in a condition to demand the freights, and if such is the case, and he refuses to deliver the goods in the condition the consignee has the right to require them, and puts it on that ground, and not on the ground that freight is not paid or tendered, then the jury might presume that the consignee stood ready to pay the freights and take the goods whenever he could get them in the condition he demanded they should be put in. I say the carrier may be required to *put the goods in such order as he received them, so far as it is practicable to do so, by tightening hoops, etc., but he could not be required to perform an impossibility, as to put back a fluid that had leaked out, or the like. It is for you to find what condition these goods were in when this carrier received them, and who it was that demanded too much of the other, and by whose fault the goods were not delivered and received.”
    4th. Because the Court erred in charging as follows: “That the law presumes that when a carrier receives goods he receives them in good order, but this is only a presumption where nothing appears to the contrary, and may be rebutted by facts or circumstances.”
    The Court refused a new trial, and the defendant excepted upon each of the aforesaid grounds.
    Printup & Fouche, for plaintiff in error.
    Wright & Featherston, for defendant.
    
      
      Railroad — Nonresident Lessee — Liability of. — As to lessees, and perhaps as to any other person or persons or corporation in possession of a railroad of this state, it is prescribed by statute that they “shall be liable to suit of any kind in the same court or jurisdiction as the lessors or owners” were. (Code, § 3407.) And this statute has been applied to foreign as well as domestic corporations. Williams v. Railroad Co., 90 Ga. 524, 16 S. E. Rep. 303; principal case cited with approval.
    
    
      
      Carriers — Receipt of Damaged Goods — Burden of Proof. — In the case of Paramore v. Western R. Co., 53 Ga. 386, where a railroad which forms a connecting line, received damaged goods, such road becomes responsible to the owner thereof for their delivery, and the burden is on it to show that the injury occurred before its reception of the goods. The company may be compelled to receive even damaged goods, but it is not bound to receive them when they are so badly packed that they cannot be removed without loss. The principal case was cited with approval.
    
   McCay, Judge.

Section 3199 of Irwin’s Revised Code gives in terms the right of attachment, if the debtor resides out of the State. Section 3330, whilst it does provide that the lessees of a railroad shall be liable to suit, as the company, does not repeal section 3199. That it does not do so in terms is plain, nor do we think it fair to say that it does so by implication. The great object of section 3199 was to make the lessees, however they might be scattered, or wherever they might live, suable in one place, and that place the same as was provided for suing the corporation Into whose franchises the lessees had stepped. Could it be inferred from this that the lessees are not suable if the plaintiff so choose, as other joint obligors? The statute does not say they shall be sued so and so, but that they shall be liable to be sued so and so. Nor does it follow that because it is not impossible to sue one by ordinary process an attachment will not lie. One may conceal himself. *He may be removing or about to remove out of a county. He may be causing his property to be moved; he may be a non-resident, and yet may in fact be here. In all these cases ordinary process will lie. He may be served with a writ, especially as that service may be by leaving it at his most notorious place of abode. We cannot, therefore, say that because the Legislature has given the remedy against lessees provided in section 3330, it intended to repeal the attachment law in so far as it authorizes attachments against nonresidents.

It seems nothing but common justice to say that if a carrier has, by his fault, so injured the cask in which a liquid is contained as that it cannot be moved without further damage, that he cannot compel the owner to take it in that condition. It is practically .a total loss. If left as the carrier has by his fault made it, the loss will be total. This is not like the case of rotting goods, or even of damaged goods. Here the parties have provided a safe barrel to hold their oil, and the carrier has damaged that barrel so that to move it will cause the loss of the oil. It is capable of repair. It seems to us plain that the carrier ought to repair it — restore it, so far as he can — to the condition it was in when he got it, so that the owner may remove it without further loss. As the carrier in this case had something more to do, the freight was not demandable.

Whatever may be the rule as to the presumption of the condition in which goods are received, it is certainly true that the carrier will be presumed to have received the goods in good order for shipment, that is, that they were in such a condition that they could be moved 'without loss. A carrier 'is not bound to receive goods which cannot be moved without loss. A man may have a right to compel a carrier to ship damaged goods, but he cannot compel him to ship goods that are so badly packed as that they cannot be transported. At any rate it is but a fair presumption that when the carrier got the goods they were in such a condition as that they were capable of being transported.

Judgment affirmed.  