
    Railroad v. Stockard.
    1. Common Carrier. Railroad receiving freight to be delivered beyond its own line. The Railroad Company received freight for carriage and delivery at a point beyond its line on a connecting road. In the absence of special contract limiting the responsibility, the Company receiving the freight is bound to deliver it at its destination. It is no excuse for not doing so, that the connecting road refused to receive the freight and advance the charges due and paid by the Company sued.
    
      2. Pleading. 'Motion in arrest too late. A motion in arrest of judgment for an alleged defect in the declaration which it is doubtful whether a demurrer would have reached, comes too late after trial and verdict.
    Citing Code, sec. 4516.
    FROM HAMILTON.
    Appeal in error from the Circuit Court of Hamilton, April Term, 1872. J. -B. Hoyl, J.
    L. S. .Marye, for Railroad.
    There is a misjoinder of parties in the declaration. In the first and second counts, J. G. and R. M. Stockyard are plaintiffs. In the third count, J. G. Stockard is alone plaintiff; and in the fourth count, R. M, Stockard alone. This will never do. It is such a misjoinder as goes to the whole declaration, so that no separate count' can support a verdict.
    The consequences of a misjoinder are more important than the circumstance of a. particular count being •defective; for in the ease of a misjoinder, however perfect the counts may respectively be in themselves, the declaration will be bad on a general demurrer, or in arrest of judgment. Chitty’s Pleading, vol. 1, pp. 205-206. (Side paging.)
    Counts requiring different pleas and judgments, cannot be joined. Same authority. See also 5th vol. Robinson’s Practice, pp. 64-65. Citing opinion of Justice Grier, of U. S. Supreme Court, in Fctrni v. Tesnov, 1 Black., p. 315.
    A motion in arrest .of judgment has the same effect as a general demurrer in case of misjoinder of parties. Rogers v. Ellison, Meigs, p. 88; Robinson’s Practice, 5 voL, p. 64; citing Dab. v. Halsey, 16 Johnson’s Reports, p. 40.
    There can be no doubt that if this declaration -would be bad upon demurrer, it would also upon motion in arrest of judgment. If there had been a demurrer, the plaintiff would have been permitted (under our practice) to amend; and so when objection was made, in argument, to the misjoinder of parties, (see bill of exceptions), the plaintiffs might perhaps have, been allowed to withdraw some of the counts. But this was not done. The declaration stands as it was filed, and the verdict is general.
    But even if the misjoinder were not fatal, and if the verdict could rest upon the first count, it cannot stand, inasmuch as this count is defective. There is no commencement to the • declaration — no statement that the plaintiffs sue the defendant, or make any demand on him. This certainly is essential. The common law form requires this, and the form prescribed in the Code. The first count (and every count) is manifestly copied from the special counts in Chitty’s Pleading. Our relaxation of the rules of pleading has gone far enough surely. It cannot be allowed that a plaintiff may recover upon a declaration which does not even state that a demand is made, or that he sues the defendant. In this case the plaintiffs have adopted the common law form of special count. He must be held to the necessary requirements of a common law declaration. A declaration commencing “For that 
      
      whereas,” etc., has no .grammatical coherency or signification — means nothing — nothing is said, or asserted. The same is true of every' count in this declaration * it is “without form and void.” The defects in the-declaration were not cured by the verdict.- The objections were taken before the verdict. If the declaration were good, the instructions and rulings of the court were erroneous in other respects.
    The defendant was not the road which received the goods from the plaintiffs. The goods were shipped from North Carolina to Jackson, Tennessee. The Memphis & Charleston Road received them from the Western & Atlantic Road at Chattanooga, and carried them to Corinth, where said .road connected with the Mobile & Ohio Road. ' The Memphis & Charleston. Road undertook to transport the goods in accordance with the general custom of common carriers. No special undertaking is shown. The Tennessee decisions, forbidding proof of local and special usages and customs, do not warrant the ■ rulings given in this case.. These very decisions authorize the introduction of proof of general usage and custom. See Bedford v. Flowers, 11 Hum., 245, and Grant v. Jennings, 1 Col., 53. In this last case, Judge McKinney says, that much of the common law of the American States rests upon no-other -foundation than usage and custom, and has acquired the force of law in that way, and common law every where is constantly adopting as rules and principles, the mere usages of the community. But to-acquire the force of law, such custom must have been established and have become general, so that a pre•sumption of knowledge by the parties can be said to arise. See 1 vol. Greeuleaf’s Ev., sec. 292.
    The goods were shipped from North Carolina to a •distant State, over connecting roads. Certainly the universal usages and customs of connecting lines must be allowed to interpret the contract (implied) under which an intermediate line receives the goods and de-•Iivers them to the next line. The court in this ease refused to admit proof of “ the uniform custom and ■usages of trade among common carriers everywhere/’ in respect to goods transported over connecting lines.
    The court also refused to instruct the jury (as requested by defendant) that “the only contract to which defendant was a party in respect thereto, (i. e. transporting the goods), arose from the defendants’ undertaking and obligations as a common carrier; and that when defendants received the goods, their only undertaking was to forward them to Jackson, Tennessee, in conformity with the general custom and usage of trade among common carriers,” etc. This instruction ought to have been granted.
    The court gave, in lieu of the restriction asked, the following: “If the defendant received the boxes at Chattanooga, marked for Jackson, Tennessee, without more, he was compelled to deliver them to the connecting line at Corinth without demanding the freight •charges, notwithstanding the custom and usage of trade might authorize him to demand them.” This instruction . was certainly erroneous.
    Cliff & Key, for Stockard.
    
      The reasons in arrest of judgment were properly overruled by the court. The defence attempted to be raised by them, could only have been made by demurrer, if at all, and is cured by verdict.
    There' is no error in the record of which plaintiffs in error can complain.
    "When a railroad or common carrier receives am article for transportation, marked- or consigned to and shipped to parties at a place beyond its own terminus- or line, it is bound to ship and deliver the goods at the point and to the person to whom consigned, in a reasonable time. On the receipt of an article marked or consigned to a point beyond its own terminus, it assumes or undertakes to carry and deliver the goods at the place and to the person to whom shipped — andi having so assumed and undertaken, the law holds them responsible to perform their undertaking, which is right and just. See the case of The Western & Atlantic JR. JR. Co. v. MeEhoee & Gaut, decided at the Knoxville Term, 1871, of this court; and also the case of Hartsell & Broyles v. The E. T. Va. & Ga. JR. JR., decided at the-sáme Term.
   McFarlaND, J.,

delivered the opinion of the Court..

J. G. & R. M. Stockard brought this action and recovered from the Memphis & Charleston R. R., as common carrier, the value of a lot of fruit trees— which were shipped by them from a point in North Carolina, and was delivered at Chattanooga to- said Railroad Company. The packages were marked “ R. M. Stoekard, Jackson, Tennessee.” It appears that they were' received by the defendants without any special contract fixing the terms of their undertaking or liability. The proof shows that the M. & 0. Railroad connects at Corinth, Mississippi, with the Mobile & Ohio Railroad, running to Jackson, Tennessee. It appears that the trees were never delivered at Jackson. There was proof tending to show, that they were carried to Corinth, but were not delivered to the connecting line,' (the Mobile & Ohio road), because the latter company refused to pay the freights then due the M. & C. Road, and the charges due to the other •roads, over which the trees had been transported before reaching Chattanooga, and which charges had been paid by the M. &. C. Road.

The Circuit Judge, in substance, instructed the jury that if the M. & C. Railroad Company received the packages directed to “ R. M. Stoekard, Jackson, Tennessee,” without any special contract, limiting their undertaking, then the law imposed upon the Company the obligation to deliver the goods at their destination, and they would not be excused for their failure to do so by reason of the facts alleged — although the destination of the goods was beyond the terminus of defendant’s road. This is in accordance with the cases recently decided by the court,' of the Western & Atlantic R. R. Co. v. McElwee & Hartsell, and Broyles v. E. T. Va. & Ga. R. R. Co. In these causes the question was fully discussed, and need not be again examined.

Reasons were filed in arrest of judgment — upon the amended ground that the declaration is fatally defective. - We should doubt the existence of any such defect, had the question been made by special demurrer; but be this as it may, it is now no ground to arrest the judgment. Code, 4516. Affirm the judgment.  