11 Ga. 438 | Ga. | 1852
By the Court.
delivering the opinion.
The first ground of error assigned on the record in this case,
It appears there were but twenty Grand Jurors in attendance upon the Court; whereupon the Court ordered the pannel filled up to twenty-three; ten of the twenty-three were challenged for cause by the defendant, which was allowed by the Court, leaving only thirteen from which to select a Special Jury; the plaintiff being the appellant, struck off one of the thirteen, and the defendant was compelled to accept the remaining twelve to try ■his cause, without having had any strike at all. By the 41st ■section of the Judiciary Act of 1799, it is declared that “ no Grand Jury shall consist of less than eighteen or more than twenty-three.” Prince, 429. The Act of 1810 declares, that “All Special Jurors shall be taken from the Grand Jury list of the County, and struck in the presence of the Court, in the following manner: The Clerk shall produce a list of the Grand Jurors present, and there impannelled, from which the parties, plaintiff and defendant, or their attorney, may strike out one alternately, until there shall be but twelve Jurors left, who shall forthwith be impannelled and sworn as Special Jurors, to try the appeal cause; and in all cases, the appellant shall strike first.” Prince, 435.
The Grand Jurors on the Clerk’s list, from which the Special Jury are to be selected, by the Act of 1810, must be viewed in the light of the Common Law, which requires impartial Jurors; and when we construe that Act, in connexion with the Judiciary Act of 1799, providing for the qualification, summoning, and impannelling of Grand and Petit Jurors, the intention of the
By the original Act ot Incorporation, the road -was to be constructed irom the City of Columbus, to some point at or near the Monroe Railroad, from Macon to the terminus of the Western and Atlantic Railroad in DeKalb County. The eastern terminus of the road was to be at or near the Monroe Railroad, at any point which the Directors might select between the City of Macon and the terminus of the Western and Atlantic Railroad in DeKalb County; that is to say, the eastern terminus of the Muscogee Railroad was not to be further north than the terminus of the Western and Atlantic Railroad in DeKalb County; nor further south than the terminus of the Monroe Railroad at Macon ; but was to terminate at some point at or near the Monroe Railroad from Macon to the terminus of the Western and Atlantic Rail Road in DeKalb County. By the Act of 1850, the Muscogee Railroad Company were authorized and empowered to connect their road with the Southwestern Railroad at Fort Valley, or at any point between Fort Valley and the City of Macon. (See pamphlet Ads, 1850, 245.) In pursuance of this latter Act, the Board of Directors of the Musco
“ Resolved, That the Company, in consideration of the subscriptions which have been recently made to build the twenty-one miles of road from Fort Valley to the contemplated east terminus of the Muscogee Railroad, do hereby relinquish to the Southwestern Railroad Company, for the use of said subscribers, all the right that it possesses to occupy the ground selected for the twenty-one miles of road, and agrees to terminate its road and franchises at the point, fifty miles east ofi' Columbus, known as the Wolf Pen.”
“ Resolved, That this Company hereby pledges itself to unite in an application to the Legislature, to have the said twenty-one miles appended to the Southwestern Company, and detached from this Company.”
When these two resolutions were passed, the defendant was not a member of the Board, and so far from his assent to the change of the route of the road appearing on the face of the record, there is evidence of his dissent; the record evidently shows, that the defendant was in favor of the Barnes-ville route, and opposed to the present route of the road.
Wm. L. Jeter, a witness introduced by the plaintiff, to prove the declarations of the defendant in regard to his stock subscription, states that he “heard the defendant say about a year ago, that he was sued for $10,000 stock in the Muscogee Railroad Company; manifested much feeling, and said he did not think he ought to pay it, as the road being built, was essentially different from the original road.” Calvin P. Stratton, a witness introduced by the plaintiff, testified among other things, “ that in 1847, at a meeting of the citizens of Columbus in said city, he heard the defendant, as a stockholder in the Muscogee Railroad Company, urge the locating of the road to Barnesville; that at the same meeting, Major John H. Howard urged the Upatoie, or southern route; that the meeting determined on the Barnesville route, and Major Howard said, if it went to Barnes-ville, he would be damn’d if he would pay his subscription, and defendant said, he would make him; that at the same meeting,
The Company have adopted the Upatoie, or southern route, for the location of their road, and the same is now being completed over that route. The Act of 1850 authorized the Company to connect their road with the Southwestern road, at Fort Valley, a point some twenty-five or thirty miles southwest from Macon, and the Company have by resolution, abandoned twenty-one miles of their road west of Fort Valley, and have agreed to terminate it at a point fifty miles east of Columbus, known as the Wolf-Pen. The present Muscogee Railroad is only to be extended fifty miles east of Columbus, in the direction of Fort Valley, and its eastern terminus is to be the Southwestern Railroad, at the Wolf-Pen.
The fact, that the present route of the Muscogee Railroad, runs from Columbus to Fort Valley, was conceded by the Court at the trial; that is to say, the eastern terminus of the Muscogee Railroad, by the amended charter, was at Fort Valley, and the road was being built in that direction. The Act of the last Legislature authorizing the connexion of the Muscogee Railroad with the Southwestern Railroad at the Wolf-Pen, (not having been yet published,) is not before us, but it was assumed on the argument to have been done, in pursuance of the resolution of the Company, passed on the 10th April, 1851, as heretofore recited. After the evidence had closed, the defendant by his counsel, requested the Court to charge the Jury — “ That the charter of the Muscogee Railroad Company, as it existed at the time of the defendant’s subscription, is as much a part of the contract, as though the same had been embodied in the caption to the subscription paper, and that no material alteration could be made in said contract by the Muscogee Railroad Company, or by the defendant, without the consent of both parties.
Therefore, if the Jury find that the road now in the course of construction is a different road from that set forth in the original charter, the defendant is not bound for the instalments called in,
The Court refused to charge the Jury as requested, but on the contrary charged them — “That the charter constituted a part of the contract of subscription, and that an alteration in the route of the road, which would defeat the original object intended by the corporation, would release the defendant, if made without his consent; but if the original object was carried out by the change of route under an amendment of the charter, obtained against the consent of the defendant, such change of route would not release the defendant; and if the Jury believed that the plaintiff, by joining the Southwestern road at Fort Valley, or any other point, has succeeded in reaching a point at or near the Monroe Railroad, this being a terminus in the original charter, it would not in the opinion of the Court, be such an alteration of the contract as would release the defendant. This is a matter of fact, which the Jury must determine upon, and if from the evidence, they believe that the original objects and purposes of the defendant, in subscribing to the first charter and first route, was materially defeated by the amended charter and change of route, then he was not further bound for his subscription, and they should find for the defendant.” Whereupon the defendant, by his counsel, excepted to the refusal of the Court to charge the Jury as requested, and to the charge as given.
The road, by the alteration, is shortened in distance, runs through different neighborhoods, and is necessarily' made de
The original charter contemplated a road to be built by the Company, from Columbus to some point at, or near the Monroe Railroad, beween Macon and the terminus of the Western and Atlantic Road, wholly independent of the Southwestern or any other Railroad; and in our judgment, the necessary change of the route, to reach the present eastern terminus of the Muscogee Railroad, as provided for by the amended charter, is an essential alteration of the defendant’s contract, and releases him from its performance, unless his assent to such alteration be shown. In the case of The Middlesex Turnpike Corporation vs. Locke, (8th Mass. Rep. 268,) a Turnpike Road Company had been incorporated in 1805, and the defendant subscribed for stock therein in July of the same year, and afterwards, in the year 1806, the corporation procured an Act of the Legislature to be passed, altering the course of the turnpike road, from “ Bisket Bridge in Tyngsborough, to the fork in Bedfordand the road was altered in pursuance of the last mentioned Statute. The Act of 1806 was passed on the application of the directors of the corporation, and with the assent of said corporation, at a meeting thereof, duly holden. The point made by the counsel for the defendant in that case was, that he never consented to become a stockholder in the turnpike company, as it was in fact located and made; that the corporation had no right to transfer his subscription for the promotion of one road to that of another, without his personal assent; and so the Court decided. The Court say — “ The plaintiffs rely on an express contract, and they are bound to prove it as they allege it. Here the proof is of an engagement to pay assessments for malting a turnpike in a certain specified direction, and of the making a turnpike in a different 'direction. The defendant may truly say, non haec in federa veni. He was not bound by the application of the 'directors to the Legislature for the alteration of the course of the road, nor by the consent of the corporation thereto.” This case is cited with approbation in The Hartford & New Haven Railroad Company vs. Croswell, 5th Hill’s N. York Rep. 386. In this latter case, the
In the case now under consideration, the facts are undisputed, that by the amended charter, and the action of the Company in pursuance thereof, the present eastern terminus of the Muscogee Railroad is at the Wolf-Pen, fifty miles from Columbus; and that the eastern terminus of the road, as contemplated by the original charter, (to wit,) at or near the Monroe Railroad, from Macon, &c., cannot be reached, except by running several miles over the Southwestern road. Upon this state of facts, the Court below charged the Jury as a matter of law, “that if they believed that the plaintiff, by joining the Southwestern road at Fort Valley, or any other point, has succeeded in reaching a point, at or near the Monroe Railroad, this being the terminus in the original charter, it would not, in the opinion of the Court, be such an alteration of the contract as would release the defendant.” It is true, the Court subsequently stated to the Jury, that this wras a question of fact for their consideration; but if the Court intended to say, “ that if the plaintiff, by joining the Southwestern road at Fort Valley, or at the Wolf-Pen, has succeeded in reaching a point at, or near the Monroe Railroad, as contemplated by the original charter, it would not be such an alteration of the contract as would release the defendant,” was a fact for their consideration, we entirely dissent from that view of it. The fact, as disclosed by the record is, that the Muscogee Railroad Company, under thé provisions of the amended charter, have connected their road with the Southwestern road at the Wolf-Pen, fifty miles east of Columbus, and cannot reach the Monroe Railroad from Macon, except by running some forty or fifty miles over the Southwestern road.
Whether this alteration of the terminus of the road, as contemplated by the original charter, and its connexion with the Southwestern road, without the assent of the defendant, was such an alteration of the contract as would release the defendant from
By that arrangement, the plaintiff, by joining the Montgomery and West Point road at Opelika, or any other point thereon, might “ have succeeded in reaching a point at, or near the Monroe Railroad, this being a terminus in the original charterbut who will say that the defendant contemplated the building any such road, when he subscribed for stock under the original charter ?
By the amended charter, authorizing the Muscogee Railroad to connect with the Southwestern road, the length of the road is shortened, thereby lessening the rates of freight, which may have been an important element of the defendant’s contract under the original charter; besides, the Company cannot now control the rates of freight between the points specified in the original charter, but are dependent on the will and action of another Company.
The original charter contemplated an independent road from Columbus to some point at, or near the Monroe Railroad, between the points designated therein, to be controlled and managed by the Company itself, independent of any other Company ; and under such a charter, the defendant subscribed for stock to build the road; but he never subscribed for stock to build a road from Columbus, to connect with the Southwestern Railroad at the Wolf-Pen, fifty miles from Columbus. When called on to pay his subscription for the building of such a road, without his assent, he may also truly say, “non haec in federa veni.”
Let the judgment of the Court below be reversed.