Boatmen's Savings Bank vs. The Western and Atlantic Railroad Company. Where by the terms of the bill of lading the goods are consigned to the order of the consignor, and the bill is indorsed in blank and negotiated for value as security for a draft drawn by the consignor on a third person, the carrier has no right to deliver the goods to such third person without production of the bill of lading or authority from the holder thereof. 2. There is no pretence that the draft and the bill of lading as security for its acceptance were not taken together in good faith and for value; so that the only possible imputation upon the bank is mala fides in taking the note. The bank was authorized, under the circumstances, to advance its money upon that note and become the purchaser of it. Its rights then attached to collect the note as well as the draft, and nothing which occurred subsequently, so far as this record indicates, defeated the right as to either. It is insisted that the bank had enough to put it upon inquiry as to whether the milling company had a right to negotiate this note on the 3d of December. It is plain that the milling company ought not to have had possession of the note. Whose fault was it that it was in the power of the milling company to negotiate the note wrongfully? It was the joint fault of the railway company and of Messrs. McMillan & Co. The railway company had no right to deliver the flour without the production of the bill of lading; and McMillan & Co., having received the flour, and knowing that the bill of lading had been indorsed, and knowing that a draft had been drawn for the money and the draft indorsed, had no right to send this note to the Planet Milling Company; and yet they did send it, and on the face of the note authorized the payee to negotiate it; the note being a promise to pay to the order of the Planet Milling Company. This bank took Messrs. McMillan & Co. at their word; and it had a right Boatmen's Savings Bank vs. The Western and Atlantic Railroad Company. to do so. McMillan & Co. promised to pay the bank, or any one else, the amount of this note, who would produce the order of the Planet Milling Company for such payment. There is not a word of evidence in the record that, at the time this transaction took place, the bank had the slightest notice or intimation that the note covered the price of this flour. The note was not for the same amount as the draft. Moreover, the memorandum which had been put upon the draft gave no intimation that a note had been or would be given for the price, for the memorandum said, "Draw and we will accept." It may put the bank upon notice that another draft was or might be out for the same thing, although perhaps not for the same amount, but it was certainly no notice that a note would be made for the same thing, and especially a note bearing date earlier than the time the memorandum was made. On the face of the note it appeared to have been executed on the 19th of November, and it was certain that this memorandum was not made until the 22d of November. The railroad company was in fault, and McMillan & Co. were in fault, but this bank was in no fault. What diligence did the bank owe to the railway company or to McMillan & Co.? Every one owes diligence to sound morality and pure principles of honesty, and that much diligence every one must exercise; but here are special claims upon diligence on the part of people whose negligence caused this whole trouble and brought about all this complication. What right did they have to insist upon minute examination of paper so different? The amounts differed, and neither the amounts, dates nor character of the paper indicated anything wrong. We think the jury should not have found this verdict. There was no proper evidence to base it on. And allowing that the charge of the court was correct, v 81-15 Lytle vs. DeVaughn. they found contrary to the principles of the charge, contrary to law. This money ought to be paid; and a new trial should have been granted. 3. A great part of the wealth of the commercial world is afloat every day upon such instruments as this bill of lading, and to defeat the rights of purchasers to their security, there ought to be notice, and there ought to be clear evidence of it. Mere presumption will not ¡ suffice. Judgment reversed. LYTLE VS. DEVAUGHN. 1. By section 3505 of the code, all bonds taken under requisition of law in the course of a judicial proceeding, may be amended and new security given if necessary. A bond given on filing an affidavit of illegality by the defendant in a mortgage fi. fa., issued to subject personal property, falls under this section, and if the penalty be too small and the condition variant from that prescribed by statute, it is amendable in both respects. 2. The motion to amend is in time if made before any order or judgment dismissing the illegality has been entered, although the court has orally announced that the motion to dismiss is sustained. ..July 11, 1888. Bonds. Amendment. Practice in superior court. Before Judge FORT. Macon superior court. November term, 1887. DeVaughn foreclosed a mortgage upon certain personal property of Lytle, for $311.72 principal, $4.15 interest, and $31.58 attorneys' fees, with costs, and interest on the principal from December 16th, 1886. Fi. fa. issuing upon the foreclosure was levied on the property December 18th, 1886. Lytle filed an affidavit of illegality upon various grounds. He also gave a replevy bond for the sum of $633.44. The condition stated was: Lytle vs. DeVaughn. "Now should the said W. W. Lytle return the said property levied upon when called for by the said levying officer, M. B. Gilmore, sheriff, as aforesaid, at the time and place of sale in the event said illegality shall be dismissed by the court or withdrawn, then this bond to be void." When the issue made by the illegality was called for trial, plaintiff moved to dismiss the illegality: (1) Because the bond was not given in double the amount foreclosed for; (2) because it was not conditioned simply for the return of the property levied upon when called for by the levying officer. The court announced that the motion was sustained, but before any entry thereof was made, defendant moved for leave to amend the bond so as to make it comply with the statute, which amendment he was ready and prepared to make. This amendment was refused and an order granted dismissing the illegality; to which action of the court, in both particulars, Lytle excepted. W. H. FISH and J. W. HAYGOOD, for plaintiff in error. F. T. SNEAD and J. M. DUPREE, by N. J. & T. A. HAMMOND, contra. BLECKLEY, Chief Justice. 1. The bond required by statute, (code, §3976,) in order to entitle the mortgagor to a hearing on his affidavit of illegality, was in a larger penalty and with a somewhat different condition from that expressed in the bond which was given in this case. But the offer to amend in both respects, which was made pending the proceeding in the court below, ought to have been allowed. By the code, §3504, "an appeal bond and all other bonds taken under requisition of law in the course of a judicial proceeding, may be amended, and new security Lytle vs. DeVaughn. given if necessary." The bond in question, being one taken under requisition of law, in the course of a judicial proceeding, to wit, the interposition, acceptance and return of an affidavit of illegality, and the investigation consequent thereupon, is within the designation, “other bonds," just quoted, and consequently its amendment is expressly authorized. True it is that the bond given was so defective that the officer should not have accepted it nor returned the papers to the court, but on the contrary should have proceeded to sell the property which he had seized by virtue of the mortgage fi. fa. Brantley vs. Baker, 75 Ga. 676. But as he did accept the bond, and return the papers to court for trial, there was in fact a judicial proceeding in progress, and when that is so, the bond, however defective, is amendable. The code does. not contemplate the amendment of only slight defect, but of all defects in bonds of this class. In Brantley vs. Baker the illegality was dismissed, and that was affirmed, but the right to amend was not considered, there being, so far as appears, no offer to amend. Here the offer to amend and the refusal to allow it constitute the whole case. 2. But it is said the offer was too late. We think it was in time, for although the court had announced orally that the motion of the opposite party to dismiss the illegality was granted, no order of dismissal had been entered, or so far as appears signed, or even drawn up. The record indicates, or affords ground for inferring, that the offer was instant and immediate upon the oral announcement made by the court of its decision. That announcement, the court being one of record, did not terminate the case; it remained pending in court to await the preparation and entry of the final order or judgment. By analogy to the rule for amending pleadings, (code, §3470,) the bond was amendable "at any stage |