5. Incorporate manufacturing company, superior court has no jurisdiction
to, under constitution of 1868. Kehler & Bro. et al. vs. Jack Man.
Co. et al., 639.

CONTEMPT. See Process, 1, 2.

CONTINUANCE.

1. Surprise at testimony of adversary, no ground of. Branch, Sons & Co.
vs. DuBose et al., 21.

2. Failure of interrogatories sued out by opponent, to arrive, though coun-
sel state that they expect to contradict thereby testimony by which they
were surprised, no ground of. Ibid.

3. Materiality of evidence of absent witness not shown, motion properly
overruled. Thompson vs. State, 47,

4. Want of preparation on account of failure of counsel to know on which
docket his case was, it having been called sooner than anticipated, no
ground of postponement. Fry vs. Shehee, 208.

5, Failure of witnesses to answer as much as counsel expected from his
knowledge of what they would testify, no ground of continuance,
when they were not interrogated upon the only point which could not
be proved by other testimony. Ibid.

6. Failure of witness to attend who has been subpoenaed, ground of con-
tinuance. Ibid.

7. If original pleadings were full enough to give premonition that matter
embraced in amendment was likely to be used on the trial, suprise from
amendment not ground of continuance. Ibid.

8. Refusal to continue case arising on exceptions to auditor's report turn-
ing purely on questions of law, in order to give time to procure attend-
ance of witness, not error. Reynolds vs. Martin et al., ex'rs, 628.

CONTRACTS.

1. Agreement to settle existing debt by promise to pay part thereof void,
unless there is consideration other than springs out of original con-
tract. Stovall vs. Hairston, 9.

2. If plaintiff delayed suit by reason of promise until original claim was
barred, then he suffered such detriment as would operate as considera-
tion. Ibid.

3. Agreement in following language: "By agreement of counsel that the
consideration in the above stated case was that of negro property-or-
dered that the judgment be set aside, and be forever null and void :"
Held, that the consent of counsel extended only to the consideration,
not to the rendition of the judgment. Jones, ex'r, vs. Killebrew, 153.
4. Intent and object of parties in entering into contract material, incompe-
tent for witness to testify as to intention of agreement. He may state
what the contract was and consideration therefor. Green, executrix,
vs. Akers, 159.

5. Mortgagee, in consideration that no further obstacle should be inter-
posed to enforcement of lien, agreed to allow fifty acres covered there.
by to son and attorney of mortgagor. On trial of issue as to who was
entitled to proceeds of this tract, competent to show that mortgagor
had not complied with contract. Ibid.
6. Where the substance of a long correspondence was, that defendant
agreed to pay a definite sum to plaintiffs for execution against third
person, the fi. fa. to remain the property of plaintiffs until paid for,
then to be transferred without recourse, and defendant failed to com-

ply with his undertaking, an action was maintainable on the corres-
pondence. Kimbell vs. Moreland et al., executors, 164.

7. To avoid contract of sale on ground of false representations to induce
purchase, the plea should allege that they were false and fraudulent,
and so known to the party making them. Ibid.

8. Under the contract stated above, plaintiffs held the execution as collate-
ral security, and it was their duty to collect any money to which it
might be entitled for defendant's benefit. Ibid.

9. Fair construction of contract to furnish timber, etc., to meet demand of
mill and keep the same constantly running, is that a sufficient quantity
shall be furnished to keep the mill constantly running, independent of
what might be the demand of customers. Jowers vs. Baker, 184.
10. If one indicted for larceny, pay sum alleged to have been stolen, he
cannot recover it after acquittal. Puckett vs. Roquemore, 235.

II. If payment be made under agreement that prosecution shall be settled
or discontinued, the law will leave the parties where it finds them.
Ibid.

12. Agreement to satisfy fi. fa. for less than it calls for, must be executed to
be binding. English, sheriff, et al., vs. Reid et al., 240.

13. Recognizance necessary to release principal from jail, though executed
on the Sabbath, valid. The act is one of charity or necessity. Salter
et al. vs. Smith, governor, 244.

14. Purchase money of goods sold to defraud creditors cannot be collected.
Heineman vs. Newman, 262.

15. "Gentlemen: In reply to your favor of the 22d instant, you will please
to withdraw your draft of $314 37 upon me, as I cannot pay for the
present. As soon as I have the money I shall remit." Too indefinite
to sustain action. Sedgwick, assignee, vs. Gerding, 264.

16. Creditors having in hand firm assets, which they claim as their own un-
der purchase from one partner, not bound, as 'matter of contract, by
promise to other partners to sell and apply to debt, if retracted before
acted on. Radcliffe & Lamb vs. Varner & Ellington, 427.

17. Proposition to sell contained in letter sent by mail to writer's agent or
friend, with request to communicate it, may, after communication, be
accepted by written reply to the maker of the proposition. Bryant
et al. vs. Booze, 438.

18. Sending reply to post office by same agent or friend, first permitting him
to read it, and telling him orally that the proposition was accepted, not
prevent contract from being one made by letter. Ibid.

19. Contract will be closed from time of delivery of reply into post office.
Ibid.

20. Letter written on Saturday, left with another on Sunday, to be mailed
on Monday, may be medium of closing lawful contract dated from
Monday. Ibid.

21. Verdict in action on contract where no defense is filed on oath, illegal.
Lester vs. Piedmont and Arlington Life Insurance Company, 475.
22. Cotton advanced to be returned in three years from date, contract not
illegal. Phillips vs. Ocmulgee Mills, 633.

CONTRIBUTIONS. See Equity, 21.

CORPORATIONS.

1. A foreign corporation which transacted its business and had its principal
office in Georgia, and which became indebted under contracts made in
Georgia, is liable to suits upon such contracts in this state, though at

the time of the institution thereof no business was being done by the
company, it having no office or place of business in the state of its in-
corporation. National Bank of Augusta vs. Southern Porcelain Man-
ufacturing Company et al., 36.

2. Service upon the president in the county where he resided at the com-
mencement of the action, where the books were, and where the stock-
holders were under notice to meet, is sufficient service on the company.
Ibid.

3. Foreign corporation, courts of this state have no jurisdiction of suit in
personam against, unless contract was made in Georgia, or the Georgia
agent was connected therewith. Remedy is by attachment. Bawk-
night vs. Liverpool and London and Globe Insurance Company, 194.
4. The Freedman's Saving and Trust Company, incorporated by act of
Congress, not a bank or corporate body in this state, within meaning
of section 4421 of Code. Cory vs. State, 236.

5. Manufacturing company, superior court, under constitution of 1868, no
jurisdiction to incorporate. Kehler & Brother et al. vs. Jack. Man.
Company et al., 639.

6. Action on contract, corporation need not set out how or by what author-
ity it was corporated, nor aver itself to be a corporation. Wilson &
Company vs. Sprague Mowing Machine Company, 672.

7. Had it been requisite, defect cured by verdict. Ibid.

COSTS. See Clerk of Superior Court, 3; Practice in the Supreme Court, 16.

COUNTY COURT. See New Trial, 8, 9.

COUNTY MATTERS.

1. Neither the judge nor the sheriff has the power to make the county a
bailee of a horse; nor is the county responsible for the loss of a horse
bailed to an officer for the purpose of bringing in witnesses to testify
for the state. Dougherty County vs. Kemp & Hood, 252.

2. Bridge, though within limits of municipality, may belong to county; if
recognized by both as property of latter, obligation to repair is on lat-
ter, and this duty includes whatever contiguous to it is necessary to
give access thereto. Daniels vs. Intendant, etc., of Athens, 609.

3. If bridge was built by authority of county, obligation to repair is on the
county, no matter in what proportion the county and town contributed
to rebuild. Ibid.

4. That town voluntary repaired same, not change this obligation, nor does
it constitute dedication by county to town.
Ibid.
5. If embankment leading thereto was not necessary part of bridge, but
was part of streets of town, duty to repair same would be on latter.
Jury must determine this question of fact. Ibid.

CRIMINAL LAW.

1. Drunkenness at time of shooting not negative intent to murder. Estes
vs. State, 30.

2. Drunkenness no excuse for crime. Ibid.

3. Facts showing malice on part of defendant to deceased, competent to
show. Thompson vs. State, 47.

4. Murder, upon trial for, not error for court to refuse to charge that if
the killing, under the circumstances, was to prevent the committing of
a serious bodily harm, or the commission of a felony, the killing is
justifiable." Ibid.

5. Opprobious words used by defendant to deceased, who struck him with a
small walking stick, blow not considered such provocation as would re-
but presumption of malice in homicide, provided the battery was not
disproportionate to the insult offered. Ibid.

6. Verdict of guilty found on indictment containing two counts, legal in-
tendment is to find defendant guilty of highest grade charged. Estes
vs. State, 131.

7. Confessions must be perfectly voluntary to ground conviction for crime
thereon. Earp vs. State, 136.

8. Though confessions be admitted without objection, yet failure to charge
above principle, on request, is error. Ibid.

9. Assurance by arresting officer to girl fourteen years of age, that she shall
not be hurt, does hold out benefit to induce confession. Ibid.

10. Third person interposed between defendant and another, when former
stfuck at him with axe, saying that if he did not get out of the way he
would knock his brains out, verdict finding him guilty of assault with
intent to murder sustained, though blow did not take effect. Brown
vs. State, 169.

II. Indictment for sale of "one bay mare mule" so as to defeat rights of
mortgagee. Evidence inadmissible to show that there was a mistake
in the description in the mortgage, and that it was intended to cover
a bay horse mule. Barclay vs. State, 179.

12. Special verdict of "guilty of receiving stolen goods," without more;
judgment arrested. O'Conell vs. State, 191.

13. Offense against law of United States, defendant must be prosecuted in
courts of the United States. Ross vs. State, 192.

14. One who knowingly receives stolen goods is an accomplice, and a con-
viction cannot be had on his uncorroborated testimony. Roberts vs.
State, 220.

15. If the witness has been acquitted of such offense, though the evidence
shows goods in his possession under suspicious circumstances, whether
his testimoney should be regarded as that of an accomplice should be
left to jury. Ibid.

16. Coroborating testimony to support accomplice.

Ibid.

17. Evidence that goods of more value than $50 00 were missed, and were
acknowledged by defendant to have been carried away, sufficient to
convict of a larceny of goods exceeding $50 oo in value, though it be
proved that he converted only a part to his own use.

Ibid.

18. If one indicted for larceny voluntarily repay sum alleged to have been
stolen, he cannot, on acquittal, recover it. Puckett vs. Roquemore, 235.
19. If payment be made under agreement that prosecution shall be settled
or discontinued, the bargain is corrupt, and the law will leave the par-
ties where it finds them. Ibid.

20. The Freedman's Saving and Trust Company, incorporated by act of
congress, and located in the city of Washington, is not a bank or cor-
porate body in this state, within the meaning of section 4421 of Code.
Cory vs. State, 236.

21. Defendant indicted as cashier of branch office at Atlanta, Georgia, no
law of the United States or of this state having authorized the estab-
lishment of the branch in Georgia, cannot be convicted of embezzle-
ment under that section. Ibid.

22. Second count based on section 4422, being defective, according to the
record, in charging that the offense was committed with the consent
of the owner, cannot be resorted to for purpose of sustaining judg
ment. Ibid.

23. Receiving stolen goods; the larceny and ownership must be proven,
with reasonble certainty, as alleged. O'Connell vs. State, 296.
24. In accounting for possession, defendant may show what was said to
his agent who purchased in his absence, as part of res gesta. Ibid.
25. Bailee resided in Fulton county, Georgia, bailor in Kentucky. Former
directed latter to send goods direct to Alabama, agreeing to consider
same as on consignment. Prosecution for larceny after trust not main-
tainable in Fulton county. Fox vs. Davis & Co., 298.

26. Whether such prosecution would lie if proceeds of goods came into
possession of bailee in Fulton county and were there converted to his
use? Quare. Ibid.

27. Rape, competent to show female to be under ten years of age though
indictment contains no such allegation. McMath vs. State, 303.
28. Competent to show that defendant offered mother of violated girl $5,00
to stop prosecution. Ibid.

29. Competent for defendant to show that mother agreed to drop prosecution
for $5,00. Ibid.

30. Statement of infant to mother immediately after crime was committed as
to what defendant had done, admissible as part of res gestæ, even
though she was not alleged to be under ten years of age. Still, infant
should have been examined to ascertain if she was competent to testi-
fy; and if she was, she should have been sworn. Ibid.

31. Indictment good, though offense alleged to have been committed on im-
possible day. Ibid.

32. Manner in which carnal knowledge was had need not be alleged. Ibid.
33. Child being under ten, unnecessary to show that carnal knowledge was
forcible, etc. Ibid.

34. Law may be read to jury by counsel, subject to correction in charge.
Ibid.

35. Acts of preparation to meet aggressor cannot be urged by him as provo-
cation. Bird vs. State, 317.

36. Provocation by abusive words only, homicide not manslaughter. Ibid.
37. Charge reciting hypothetically state of facts more favorable to defendant
than evidence warrants, not error of which he can complain. Ibid.
38. Full charge of assault with intent to murder, verdict for assault sus-
tained, though latter, as separate offense, be not alleged to have been
unlawfully committed. Bird vs. State, 319.

39. Burglary in night time, case made out by circumstantial testimony.
Wilson vs. State, 324.

40. Murder, on trial for, all testimony going to show motive is material; il-
lustrations of proposition. Fraser vs. State, 325.

41. Speed of horse which defendant rode being material on account of dis-
tance he had to ride and the time he had to make it, his sayings in
reference thereto, as well as about everything else material, are admis-
sible. Ibid.

42. Questions of fact are for the jury, especially in cases of circumstantial
evidence. Ibid.

43. An affidavit neither attested, nor sworn to in open court, is void as basis
of criminal proceeding. Scroggins vs. State, 380.

44. Proceedings in courts of limited jurisdiction must show jurisdictional
facts. Ibid.

45. Where court is empowered to try on written accusation, based on affida-
vit, objection based upon invalidity of latter may be taken after convic-
tion and sentence. Ibid.