Venable Bros. v. Louisville & N. R. Co.

PARDEE, Circuit Judge. The contention that the' plaintiffs’ original declaration contains two counts upon separate causes of [982] action, to-wit, one count under the tracing act, and one on through bill of lading, is not well founded. This not only appears from the substance of the declaration, but also from the form thereof, as the pleader made no effort to comply with the rule declared in Cooper v. Portner Brewing Company, 112 Ga. 895, 38 S. E. 91, to the effect that where , a petition contains, under different counts, more than one cause of action, each count must contain a complete cause of action, in distinct arid separate paragraphs. The declaration negatives the construction that it is a suit upon a through bill' of lading. The bill of lading, which is made a part of plaintiffs’ petition (sixth paragraph), and is attached to the declaration as an exhibit, shows that the liability of the defendant thereunder ceased at Atlanta, Ga. ' A fair construction of the declaration shows the suit is founded on the tracing act, contained in sections 2317 and 2318 of the Georgia Code of 1895. Suits uñder the said sections are held in the Supreme Court of the state of Georgia to be in the nature of suits for a penalty. McCall v. Central of Georgia Railroad Company, 120 Ga. 602-605, 48 S. E. 157. It seems to be settled that a suit for a penalty cannot be converted into an action upon a contract by amendment. Western & Atlantic Railroad Company v. Exposition Cotton Mills, 81 Ga. 522, 7 S. E. 916, 2 L. R. A. 102; Exposition Cotton Mills v. Western & Atlantic Railroad Company, 83 Ga. 441, 10 S. E. 113. It is to be further noticed that, the plaintiffs having pleaded the bill of lading in< the original declaration, they cannot be allowed by an amendment to repudiate or impeach the same. Southern Railroad Company v. Parramore, 119 Ga. 690, 46 S. E. 822. The motion for leave to.amend is refused.