Dickerson vs. Burke. sess the property exempted. It is not pretended that the defendant owned property at Hawkinsville, whither he had removed, or elsewhere, except in the village of Leathersford If he owned it, and it was all he owned, his removal to another place not owned by him, did not remove it from the operation of the Act. He could not have sold the land without the consent of the wife, who must, of her own free will and choice, have signed the deed with him. He could not, by a removal, destroy her right. The profession of the defendant, an itinerant Methodist clergyman, shows that he could have no permanent home. His calling was abroad, and his high duties necessarily carried him from his family; but that is no reason why he and they should be placed out of the protection of this humane law. The creditor cannot complain, for he contracted under the law exempting a certain portion of the debtor's property from levy and sale. It was his contract that so much of the debtor's land, or house and lot, as amounted to the sum specified in the Act, should not be disturbed by the debt. The judgment of the Court below must be affirmed. Judgment affirmed. WILEY P. DICKERSON, plaintiff in error, vs. A. T. BURKE, defendant in error. [1.] A tax execution levied on tract of land No. 224 in the 5th district of Carroll, is no evidence to support a sale of the same number in the 3d district, and is inadmissible for that purpose. [2.] A promissory note, on the face of it joint and several, but signed by but one maker, who puts it in circulation, is good against him. [3.] It is to be presumed that a note transferred, was transferred before due, and that the holder is a bona fide holder for value, and in such case, the note itself is evidence of no notice of a defence except such as may appear on the face of it. VOL. XXV.-15. Dickerson vs. Burke. [4.] The holder is not bound to prove that he gave value for it, unless it be first established that the note was lost or stolen. [5.] Counsel have no right to argue before the jury points to which there is no evidence. Assumpsit, from Carroll county. Tried before Judge HAMMOND, October Term, 1857. The facts of this case are fully stated in the opinion of the Court. GLENN, and LATHAM, for plaintiff in error. BURKE & MABRY, contra. By the Court-MCDONALD, J. delivering the opinion. The defendant in error sued the plaintiff in error in the Court below, on a promissory note in the following words: "By the 25th Dec., 1855, we or either of us promise to pay James B. Goddard or bearer 864 17-100 dollars, value rec'd., the above Goddard agrees to pay out of the said note, the expenses of a law suit, if any occurs in good faith, about the land this day sold by the said Goddard to the makers of this note, between this day and the time the note falls due; the land is lots No. 224 and 223, in the 3d district of Carroll county, Ga., this 31st May, 1854. [signed] WILEY P. DICKERSON." The defendant pleaded the general issue, and that the title to one of the lots (No. 223) has wholly failed. That since the note was given, the said lot has been sold for taxes by an execution against Goddard, to which it was subject and liable; that the title to half of the other lot was not in the said Goddard, but in another person, and wholly lost to defendant, and that plaintiff had notice, &c. [1.] A tax fi. fa. against Goddard for his tax for the year 1854, levied on lot of land 224 in the 5th district of Carroll, was tendered in evidence and objected to by plaintiff, on the ground that the land levied on was neither of the tracts de Dickerson vs. Burke. scribed in the note. The Court sustained the objection and rejected the evidence. The evidence did not support the plea, and did not apply to the land which constituted the consideration of the note and was properly rejected. [2] The note sued on, was received in evidence on the trial without objection. The evidence showed that a man by the name of Summerlin was to be interested in the contract, and was to have signed the note. The Court charged the jury that the note was binding on Dickerson, although Summerlin never signed it. Dickerson put the note in circulation as his own note, and is bound by it; and it was notice to the holder, on the face of it, of no defence, except the expenses of a law suit. [3.] The holder of a promissory note is presumed to be a bona fide holder for value, without notice, and the presumption is that he received it before due. [4.] He is not bound to prove that he paid value for it unless it be proven that the note had been stolen or lost. This charge is excepted to as a whole, but we see nothing in it to disapprove. [5.] When the counsel for defendant was about to address the jury and insist that the plaintiff had not proved that he had given value for the note, the Court stopped him, saying that no evidence had been introduced shifting the onus, and he charged the jury to the same effect. The Court ought to have arrested an argument not based on the evidence, and it was also his duty, in the total absence of evidence to a point attempted to be argued to the jury, so to charge. Judgment affirmed. Rome Railroad Co. vs. Sullivan, Cabot & Co.. ROME RAILROAD COMPANY, plaintiff in error, vs. SULLIVAN, CABOT & Co., defendants in error. [1.] A declaration alleging that the defendants received 40 bales of cotton, to be delivered to R. & C., at Charleston, South Carolina, is not supported by proof that it was to be delivered to the Agent of the South Carolina Railroad, at Augusta. [2.] The marks on bales of cotton is no evidence of the contract between the parties; they are mere directions to the carrier as to the place of ultimate destination. [3.] The Rome Railroad Company has a right, under the powers granted in its charter, to contract to deliver produce at a point which can be reached only by passing it over connecting roads. [4.] It cannot, however, bind the companies owning the connecting roads, without their consent or acquiescence. [5.] If there be no special contract, a railroad company is not bound to carry freight beyond the terminus of its road; but if it be directed to a place beyond, it is bound to deliver it over to the proper custody, to ensure its due transportation. Nonsuit and new trial, from Floyd county. Decided by Judge HAMMOND, August Term, 1857. This was an action brought in the Court below, by Sullivan, Cabot & Co., to recover from the Rome Railroad Company, damages for loss alleged to have been sustained by the delay of said company in transferring 40 bales of cotton, which the plaintiff's had shipped by said company, to be delivered to the agent of the South Carolina Railroad at Augusta, and consigned to Robinson and Caldwell at Charleston. The plaintiffs alleged, that between the time the cotton was received by the company at Rome, and delivered by them in Charleston, the price of cotton went down. The receipt given by the Railroad Company at Rome, stated that 40 bales of cotton had been shipped, (consigned to Robinson & Caldwell at Charleston,) and that the cotton was to be delivered to the agent of the South Carolina Railroad at Augusta. The receipt was dated the 10th of January, and the cotton received by Messrs. Robinson & Caldwell at Charleston, on the 25th and 28th of February following. Rome Railroad Co. vs. Sullivan, Cabot & Co. The plaintiffs, after the introduction of some testimony to the above facts, closed, and the defendants moved for a nonsuit on the following grounds: 1st. Because the plaintiffs had entirely failed, by their testimony, to make out a case against the defendant, there being no testimony showing that defendant ever contracted to carry said cotton to, and deliver the same in Charleston, as alleged in plaintiffs' declaration. 2d. That the Rome Railroad Company being a corporation with limited powers, for the transportation of merchandise between Rome and Kingston, the officers of said corporation have no power to bind the company, by contract, for transportation beyond these limits. 3d. That the limitations in the charter settle the construction of the contract, and a general consignment or mark beyond the chartered limits of the road, creates no prima facie obligation to transport beyond those limits, but is, in legal effect and intendment, a contract to transport to the terminus, and then forward to the connecting road. 4th. That a receipt given, as testified to by Terhune, (the witness,) could not bind the defendants to transport the cotton beyond Kingston, the terminus of the Rome Railroad, and consequently the defendants could not be held liable for delay and damage beyond that point. The Court overruled the motion, and the defendants excepted. The Court charged the jury, 1st. That the agent of the Rome Railroad Company could contract to carry goods to Charleston, or any other point, and bind the company by such contract. 2d. That if the plaintiffs had shown such a contract, (which must be a special contract,) they were entitled to recover such damages as they had proven to have sustained, provided the plaintiffs have shown a want of diligence and proper attention on the part of the Railroad Company, in forwarding this cot |