Haas vs. The Kansas City, Fort Scott and Gulf Railroad Company.

and that in some instances the new hands were fired upon by the strikers and some of them killed. The evidence further shows that it was an organized resistance by the strikers, and that the company called upon the civil authorities to protect its property and franchises against this armed resistance, and that the civil authorities were unable to do so. It further shows that the company exerted all its power to employ other hands. and to run its trains, but that it could not do so on account of this armed resistance. Under this state of facts, the jury returned a verdict in favor of the defendant; and as we have before said, we think the verdict was right.

1. The law seems to be that where a railroad company receives freight for shipment, and its employés strike or cease to work for the company, the company is still bound to forward the freight within a reasonable time; but if the strike is accompanied with violence and intimidation, so as to render it unsafe to forward the freight, the company is thereby relieved from liability for delay in the delivery of the freight. The company is bound at all hazards to deliver freight safely, except in cases of the act of God or of the public enemy. It therefore ought to be allowed to plead and prove the acts of violence and armed and organized resistance of its former employés, especially when the resistance is of such a character as could not be overcome by the company or controlled by the civil authorities when called upon by it. Geismer vs. Lake Shore Railway Co., 55 Amer. Rep. 837, and cases there cited. (102 N. Y.)

2. We think the verdict was right for another reason. Haas did not show what was the amount of the draft drawn on him by Ayres, nor the amount received from the flour. He simply alleges in his declaration that he lost $163 by the delay in the arrival of the flour and the

Ilaas vs. The Kansas City, Fort Scott and Gulf Railroad Company.

decrease in its price. So far as this record discloses, the flour may have been sold for enough to pay the draft. This loss on the flour may have been the profits he anticipated making. But if the proceeds of the flour were sufficient to pay the amount of the draft advanced upon the faith of it, then he was not damaged, and could not recover in this action.

3. Whether the above propositions are correct or not, we still think the verdict was right, for another reason. The record does not show that this bill of lading was assigned or indorsed by Ayres to Haas. This being true, Haas, under our code, could not bring suit on the contract made between the railroad company and Ayres. It is true that after the argument in this case was concluded, and after we had devoted at least half a day to its further consideration, we were informed that the bill of lading had been assigned and indorsed by Ayres to Haas, and that the clerk had made a mistake in not copying the indorsement in the record. It is the duty of counsel to examine the records sent here from the courts below, and to ascertain if any mistakes have been made in copying the original documents, and if such mistakes have been made, to suggest a diminution of the record on or before the calling of the case in this court. It is too late, after the case has been argued here, and after this court has spent hours in the investigation of the law of the case, to suggest mistakes in the record. Even if the record showed that the bill of lading had been assigned or indorsed by Ayres to Haas, we would still hold that the verdict was right in this case. A bill of lading is not such a negotiable instrument as to give the assignee any other or greater rights than the assignor had. The assignee has only such rights as Ayres would have had. "Bills of lading are symbolic of the property they represent, and though

Born et al. vs. Williams & Brother.

transferable so as to pass title to the property in a transaction intended to have that effect, are not, in the full commercial sense, negotiable paper, and are not attended with all the incidents of such paper in favor of bona fide purchasers." Tison & Gordon vs. Howard, 57 Ga. 410; Shaw vs. Railroad Co., 101 U. S. 557.

Ilaas says in his testimony that when he bought this flour, he thought it was on the line of the defendant's road; whereas in truth it was not on that line, but on the line of one of its connecting roads, and this connecting road was the one on which the strike occurred which delayed the flour; that if he had known it was not on the defendant's line of road, he would not have purchased it. The evidence shows that Ayres, from whom Haas received the bill of lading, knew when he got the bill of lading from the company that the flour was not on the line of its road, but on this connecting line. And Ayers having received the bill of lading with knowledge that it was not in possession of the defendant, but on the connecting line of road, he could not recover damages from the defendant for delay in the delivery of the flour, if the connecting line was prevented from shipping it by the acts of an armed mob. For the se reasons, we affirm the judgment of the court below in overruling the motion for a new trial.

Judgment affirmed.

BORN et al. vs. WILLIAMS & BROTHER.

1. A municipal corporation invested by statute with power to establish and maintain public schools, is not subject to garnishment in respect to a debt which it owes for work done on a municipal school-house.

2. Dissolving a garnishment under the act of October 15th, 1885, by

Born et al. vs. Williams & Brother.

giving bond and security, will not hinder the debtor from setting up that the debt seized was not subject to process of garnishment. He may insist on the exemption whether the garnishee does so or not, and if his claim be well-founded, no judgment can be entered up on the bond given to effect the dissolution.

November 9, 1888.

Garnishment.

Municipal corporations.

Practice.

Before Judge VAN EPPS. City court of Atlanta. June term, 1888.

Reported in the decision.

HAYGOOD & DOUGLAS and JOHN B. GOODWIN, for plaintiffs in error

MAYSON & HILL, contra.

BLECKLEY, Chief Justice.

Williams & Bro., creditors of Born, caused garnishment to issue, and had it served upon members of the building committee of the board of education of the city of Atlanta. The city has a public school system, and is empowered by statute to maintain schools. It was indebted to Born when the garnishment was served, for work done on one of its school-buildings, and became further indebted to him on the same account pending the summons, and before answer to it was made by the mayor. Born, also before answer by the mayor, gave bond and security, thus dissolving the garnishment, and thereupon the money was paid to him by the city. The answer being in and admitting indebtedness on the part of the city, Williams & Bro. moved to enter judgment upon the bond, against Born and his surety, in terms of the statute, code, §3540. This was resisted on the ground that the debt seized by the garnishment was not subject to such process. The court held it was sub

Born et al. vs. Williams & Brother.

ject, and granted the application to enter the judgment. 1. Whether upon principle, in the absence of a specific statutory provision, municipal corporations are subject to the process of garnishment, is a question upon which judicial opinion is not uniform. In some of the States the decisions hold the affirmative, in others the negative. Most of the cases on the subject are cited in Waples on Attachment and Garnishment, and in the last edition of Drake on Attachments. Taken broadcast, they make the impression that the current of authority is with the negative. The strength of the argument, as commonly presented, involves two considerations affecting public policy. The first is, that officers charged with municipal functions, should devote their time and labor to the public service, and not be burdened with care and attention respecting suits in which the public, as such, has no interest. To answer garnishments often requires preparation by examination of accounts, or otherwise collecting facts on which to base the answer in each case. To have the answers drawn, verified and filed is a further tax on official time and diligence. The result in the aggregate, especially in large cities, may be a serious interference with the transaction of current municipal business, since the garnishments to be attended to from time to time may not only be numerous, but scattered through various. courts, such as the justice's court, the city court, the superior court, and perhaps the circuit court of the United States. Furthermore, the answers may be contested as to their sufficiency, their truth traversed, etc., and to uphold them may require the city to engage in expensive litigation. The second consideration is, that to arrest or delay payments by a city for labor, services or supplies, would seriously disturb, and sometimes wholly obstruct its arrangements for procuring these