Charlotte, Columbia and Augusta R. R. Co. v. Gow.

believe the circumstances called for objection, would be no basis for an inference. What facts will enable the jury to infer other facts is generally matter for the jury to decide for themselves. Besides, a contract secured by an agent's bond ought to be kept until the corporation contracts change it, or until the agent is instructed not to execute it. Why should the agent violate it, and take license, from the mere silence of the corporation, to repeat the violation over and over? The agent and the surety undertake that their bond shall be performed. The corporation is not bound to see to the performance as to matters which come clearly within the surety's undertaking.

(c) "Any change of the terms of the bond, without the consent of the surety, within the knowledge of plaintiff, or the superior officers of Wylly, by which losses accrued, cannot be charged to the surety. Hence if the default of Wylly was by reason of nonpayment of freights before delivery, or non-transmission of collections daily, with the knowledge, permission or consent of plaintiff, he is not liable therefor, and your verdict should be for the defendant, Gow." Mere knowledge of the corporation would not be sufficient to work discharge, nor would that of the agent's superior officers, as a class. What officers are referred to, and what are their powers and duties, would be material even if their knowledge would suffice. We have already said that a departure by the agent from the terms of the bond, unless known to be dishonest in act or purpose, would not discharge the surety, unless done by contract, or in pursuance of instructions. Any other departure would be simple breach of the bond, and instead of being a reason for letting the surety off, would be the best of reasons for holding him liable and making him pay."

(d) "No delay or non-action by plaintiff in compelling payments, or allowing freights delivered without payment, unless for a consideration or.benefit to plaintiff, will discharge the surety unless loss accrued thereby to securities held, or it amounted to such conduct on the part of plaintiff as to so change the contract or bond as to increase the risk of the surety." If the jury understood this paragraph, it probably did no harm. We think, however, it is too vague, and that it should be omitted when the case is tried again. The vagueness is principally in the words "such conduct," and in the possible implication that delay or nonaction might work a change in the contract.

Charlotte, Columbia and Augusta R. R. Co. v. Gow.

(e) "If the maker, Wylly, permitted goods to be delivered without payment of freights, and loss accrued therefrom, and the plaintiff knew of such delivery without prepayment, the surety, Gow, cannot be charged with such a loss." This is undoubtedly erroneous. In the first place, it assumes that delivery without prepayment of charges would infringe the condition of the bond, though sanctioned by the company. This, we have said, is not our construction of the language of the condition. But if it would infringe the condition, surely knowledge by the company, especially without reference to the time of acquiring it, would not be enough to saddle the company with the loss. The truth is that whether the agent or the company should be the loser as to freight charges not collected, depends upon whether the agent complied with or violated his instructions.

(f) "One of the requirements of the bond being that Wylly should make daily settlements, if the plaintiff permitted, allowed or consented to, weekly or monthly payments, and losses thereby accrued, the surety, Gow, cannot be charged therewith." We think this was error. It would be quite right to permit all the payments, whether daily, weekly or monthly, that the agent would make. If the plaintiff, by contract or instructions, dispensed with daily payments, and authorized weekly or monthly payments in lieu thereof, the risk of the surety was increased, and he was discharged from that time forth. We will add that general orders, such as appear in the record, are not necessarily inconsistent with the condition of the bond. They stand to this contract somewhat as general statutes do to a particular statute. It would be altogether practicable, and might be altogether reasonable, to have special regulations for the Augusta agency depending upon specific contract-such a contract as the condition of the bond sets forth.

(g) "This is a bond for the faithful performance by Wylly of the duties of agent for plaintiffs, and in two of its most important stipulations, the manner of its performance is specifically stated; any change of its mode and manner of performance by the agent with the consent, knowledge or approbation of the plaintiffs, by which the risk of the surety was increased, or from which losses accrued, will discharge, and you should so find."

Omitting the word "knowledge," this paragraph may be deemed correct; but what will constitute consent or approbation should be squared with what has been said in reference to contract and inVOL. XXVII — 52

ད

Charlotte, Columbia and Augusta R. R. Co. v. Gow.

structions. Moreover, that discharge as to latter breaches would not necessarily involve discharge as to earlier ones should not be lost sight of.

Cited for the corporation: Pittsburg, Ft. W., etc., R. R. Co. v. Schaeffer, 59 Penn. St. 350; Oberndorf v. Union Bank, 1 Am. Rep. 31; Woolfolk v. Plant, 46 Ga. 426; Crawford v. Garden, 33 id. 173, 184; Bonner v. Nelson, 57 id. 433; Goodwyn v. Hightower, 30 id. 249; Hollingsworth v. Tanner, 44 id. 12; Code, § 2154; Greeley v. Dow, 2 Metc. 176; Wagman v. Hoag, 14 Barb. 232; 46 Tenn. 263; Leavitt v. Savage, 16 Me. 72; Bailey v. Adams, 10 N. H. 162; Sawyer v. Patterson, 11 Ala. 523; Farmers' Bank v. Reynolds, 13 Ohio St. 84; Lumsden v. Leonard, 55 Ga. 374; Crawford v. Yaulden, 33 id. 173; Reid v. Flipper, 47 id. 273; McKecknie v. Ward, 58 N. Y. 541; 17 Am. Rep. 281; Pitts., Ft. W., &c., R. R. Co. v. Schaeffer, 8 Am. L. Reg. (N. S.) 110; Atlas Bank v. Brownell, 11 Am. Rep. 232; London Assur. Co. v. Buckle, 4 J. B. Moore, 153; Toomer v. Dickerson, 37 Ga. 438; Stewart v. Barrow, 55 id. 664; Clark v. Sickles, 21 Am. Rep. 608; Angell & Ames on Corp., § 321; Murror v. Mech. Bank, 7 Curtis (U. S.), 446, 454; Graves v. Lebanon Nat. Bank, 19 Am. Rep. 53; Amherst Bank v. Root, 2 Metc. 541; Jones v. U. S., 18 Wall. 662; Code, § 2154; Lumsden v. Leonard, 55 Ga. 374; Stewart v. Barrow, id. 664; Bonner v. Nelson, 57 id. 433; Reid v. Flipper, 47 id. 273; Sullivan v. Hugely, 48 id. 489; Corn Ex. Ins. v. Babcock, 1 Am. Rep. 606.

Cited for the surety: 3 Pars. on Cont. 356; De Colyar on Guarantees, 432, 434; Taylor v. Governor, 17 Ga. 534 (3), (4); Hayes v. Little, 52 id. 555; Code of 1873, §§ 2153-4; DeColyar on Guarantees, 276, 394, 396; Davies v. Byrne, 10 Ga. 235; Atlanta Nat. Bank v. Douglass, 51 id. 205; 11 Eng. C. L. (5 B. & C.), 458; De Colyar on Guarantees, 324, 376, 385; Hunt v. Roberts, 45 N. Y. 691; Phillips v. Foxall, L. R., 7 Q. B. 666, July, 1872; Mc Kecknie v. Ward, 17 Am. Rep. 281; Atlas Bank v. Brownell, 11 id. 231; Pidcock v. Bishop, 3 B. & C. 605 (10 Eng. C. L.); Atlanta N. Bk. v. Douglass, 51 Ga. 205; 1 Greenl. Ev., § 48; Chapman v. Macon, 55 Ga. 566; Nelson v. R. R. & B. Co., 48 id. 152; Atlanta v. Perdue, 53 id. 607; Casteberry v. Scandrett, 20 id. 245; (8); Bryant v. Booze, 55 id. 438; Veasey v. Graham, 17 id. 99; Code, § 2200; Bryan v. Watson, 20 Ga. 480 (11 request), (12); Bray v. Gunn, 53 id. 144; 1 Greenl. Ev. 48; Story on Agency, § 95; Newton v. Brice, 41 Ga 186; Statham v. State, id. 507. Judgment reversed.

The Western Railroad v. Thomas.

THE WESTERN RAILROAD V. THOMAS.

(60 Ga. 313.)

Action for obstructing levy — who may maintain.

The agent of a railroad company obstructed an officer in levying an attachment upon goods loaded upon one of the trains of the company, and removed the goods out of the State by running out the train. Held, not to furnish a cause of action against the company, at the instance of the plaintiff in attachment.

A

CTION for damages. The report gives no facts other than those indicated in the head note.

Joseph F. Pou, for plaintiff in error.

Hatcher & Goetchius, for defendant.

BLECKLEY, J. To aid a debtor in removing his property out of the State is not an actionable injury to the creditor. This is. the rule where process of seizure has not issued. 19 Ga. 141. That a debtor after arrest has been rescued by a mob is no excuse to officer. 20 id. 598. No case exactly like the present was produced in the argument, and none such is known to us. The two just cited are as near in point as any we have been able to find. They would seem to suggest, if not to furnish, a rule of decision for the case before us. A ministerial officer, armed with due process of law and acting within it, is the servant of the State and not of the plaintiff. Resistance to him is resistance to the public authority, and is a penal offense. Code, § 4476. He can command assistance, and must do it at his peril when he is in a situation to require it. He can summon a posse, and with their support carry his process into execution. If it was his duty to make the levy, and he failed to do it, the plaintiff's remedy is against him, and not against those who obstructed him. Civilly considered, the obstruction was an injury to him, not to the plaintiff. 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. It does

Williams v. State of Georgia.

not appear that he commanded assistance, or that there was none at hand.

The court erred in sustaining the certiorari.

Cited in argument, Garaway v. Atlanta & W. P. R. R. Co., 58 Ga. 216; 1 Redf. on Railways, p. 535 et seq.; Code, §§ 2951, 2962, 3033; Savannah, G., etc., R. R. Co. v. Wilcox, 48 Ga. 432; 1 Black, 101; Paget v. Perchard, 1 Espinasse, 205, and note.

Judgment reversed.

WILLIAMS v. STATE OF GEORGIA.

(60 Ga. 367.)

Criminal law-limiting time of prisoner's counsel in addressing jury.

In the trial of a felony, whether the prisoner is heard through one counsel or two, the length of the argument is not a matter for pre-determination by the court. As argument progresses, the court may confine the range of it to the facts and law of the case, and may interdict idle repetition; but so long as counsel speaks to the point, proceeds in good faith, and wastes no time, the court should forbear to interfere, but leave the limits of the speech to the discretion of the speaker, until it is manifest that the discussion is complete, or the subject exhausted. (See note, p. 413.)

NDICTMENT for larceny. The opinion states the facts.

INDICTMENT

H. C. Erwin, Dessau & Strohecker, for plaintiff in error.

C. L. Bartlett, solicitor-general, by W. A. Lofton, for State.

BLECKLEY, J. [Omitting a minor point.] The length of argument, in the trial of a felony, is not a matter for pre-determination by the court. How can the court know, in hours and minutes, how long the argument ought to be? There is no rule of practice that settles it, and the judge cannot settle it by what he may suppose sufficient. As argument progresses, he may confine its range to the facts and law of the case, and may interdict idle repetition; but while counsel speak to the point, and proceed in good faith, wasting no time, how can the court forbear