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8. Opinion expressed on evidence necessitates new trial. De Saulles &

Eu Co. vs. Leake, 365; See Warmock vs. State, 503; Pike et al. vs.

Dotterer, trustee, et al., 527.
9. Admitted, what is may be repeated by court; and that admission was

made, if stated in charge, taken as true unless otherwise certified. Ibid.
10. Erroneous charge on immaterial issue, or on irrelevant testimony, no

cause for new trial unless jury was misled. Boyd et al. vs. England,

II. Question for decision being whether debtor was insolvent at time of con-

veyance, error to charge that no debtor in the condition of P. could

make such a gift of his property. Primrose vs. Browning, 369.
12. Error to charge that “under the evidence for the defense, he is guilty.

White vs. State, 385.
13. Error to charge that “if you disbelieve all the evidence for the state,

and believe every word of evidence for the defense, I charge you the
prisoner is guilty, but of course you can look to all the evidence and

make up your verdict on it.” Ibid.
14. Entire charge not in record, court presumed to have charged correctly,

if the contrary be not manifest from portions of charge given and

excepted to. Woolfolk vs. Macon and Aug. R. R. Co., 457.
15. Negligence, court has no authority to determine in charge what consti-

stitutes. Ibid. See Ga. R. R. & B’kg Co. vs. Neely, 540.
16. Oral request in course of argument, refusal not authorize new trial. Wil-

son vs. First Pres. Church, 554.
17. Property sought to be made liable upon ground that though title was

taken to claimant, yet it was paid for with defendant's money, and it
was replied that land was given by defendant to claimant prior to date
of plaintiff's judgment; error to ignore in charge the gift and to con-
fine jury solely to question as to who paid for property. Bryson vs.

Chisholm, 596.
18. Evidence, none to support charge, error to give. Minor vs. State, 630.

1. Part of purchase money paid and bond for title given; judgment ob-

tained for balance and fi. fa. levied on land, deed having been first
filed in clerk's office. Wife of vendee cannot set up right to have
money paid by husband refunded on ground that it was hers, by

claim, without proving insolvency of vendor. Boyd vs. Chappell, 22.
2. Part of property levied on subject and part not subject, judgment find-

ing all subject reversed unless levy is dismissed in respect to that not

subject. Keaton vs. Tifts, 446.
3. Successive claims interposed, pretended title being conveyed from one

to the other, for purpose of delay, claimants being insolvent, and the
first having been decided in favor of the plaintiff, injunction will
issue. Chappell vs. Boyd et al., 578. See Crawford, executor, vs.

Spurling, 61.
4. Property sought to be made liable upon ground that though title was

taken to claimant, yet it was paid for with defendant's money, and it
was replied that land was given by defendant to claimant prior to date
of plaintiff's judgment; error to ignore in charge the gift, and to con-
fine jury solely to question as to who paid for property. Bryson vs.

Chisholm, 596.
5. Claim affidavit and bond, purporting to be executed in foreign state

before notary public, not received by levying officer without authenti-
cation. Charles vs. Foster, 612.
VOL. LVI. 46.

6. Seal of notary is not authentication; nor is certificate and seal of clerk

of court of record without further certificate from judge, etc. Ibid.

COMMON OF PASTURE. See Injunction, 12.

COMPROMISE AND SETTLEMENT. See Accord and Satisfaction.

CONSIDERATION. See Contracts, 3, 5, 16, 17, 20.


CONTEMPT. See Injunction, 1.

1. Counsel upon whom movant almost exclusively relied properly absent,

continuance granted though court has strong reason to believe that
motion was made for delay. Bagwell vs. State, 406.

1. Parol evidence inadmissible to change written contract. Sims vs. Craw-

ford, executor, 31.
2. Construction is for court, but it cannot decide whether work done

thereunder was in capacity of mechanics. Savannah, Griffin and

North Alabama Railroad Co. vs. Grant, Alexander Ex Co., 08.
3. That deceased father, who was discharged in bankruptcy and died in-

solvent, owed note, not impose upon sons such strong moral obligation
to pay same as to constitute consideration for new note for principal of

old. . McElven et al. vs. Sloan & Company, 208.
4. Contract to pay additional interest on account of notes not being met

at maturity, made after maturity, nudum pactum. Shealy vs. Toole, 210.
5. Consideration, none on face of contract and none shown by evidence,

contract not enforced, though absence of consideration be not pleaded.

6. Executor takes note of member of firm which was indebted to testator,

with note on third person as collateral, in payment of such indebt-

edness, original claim discharged. Adams Eu Son vs. Reid et al., 214.
7. Agent, note signed by without disclosing principal, former individually

bound and latter not. Graham vs. Campbell et al., 258.
8. Contract described in declaration as made with plaintiff, too late, after

verdict, to object that contract offered in evidence was made with
plaintiff and others jointly, no plea in abatement having been filed,

nor objection to testimony made. Mahone vs. Bryant, 294.
9. Will, contract for valuable consideration to leave legacy by, binding on

representative. Napier vs. Trimmier, administrator, 300.
10. Producer to deliver definite quantity of charcoal each day for seven

months, which consumer was to receive at the pits “in the basket,” and
haul to the furnace, where it was to be measured and credited to pro-
ducers, at six cents per bushel, on their account for cash advances, it
was right of producers to draw coal from pits at rate requisite to make
stipulated delivery daily; loss resulting from consumer's failing to re-
*ceive and haul away at same rate, fell on him. Hence, so long as
cash advanced exceeded value of coal drawn from pits, producer had
no right to abandon contract or to sue for breach. Denman & Bice

vs. Cherokee Iron Co., 319.
11. Contractors for building of railroad were to be paid ninety per cent. of

cach monthly estimate in certain bonds to be taken at eighty cents on

the dollar, and ten per cent. retained until completion of contract;
provided not more than $25,000 oo in bonds at par should be retained
as security. If contractors fail to execute contract, this amount to be
forfeited. For completion of work in time and manner specified, con-
tractors to be paid $475,000 oo in bonds, less previous payments: Held,
that the contract price of the work was $475,000 oo in bonds; not the
aggregate amount of the estimates, either in cash or in bonds at the

agreed rate. Sav. Eno Char. R. R. Co. vs. Callahan et al., 331.
12. The estimates and agreed rate at which bonds advanced were to be

counted, were intended for use in temporary monthly settlements only.

13. Stipulation for retaining ten per cent. was in the nature of a penalty.

Time was not so clearly of essence of contract as to require forfeiture.

14. Promise to pay in currency by future day, sum equal to the value of

given amount of currency at date of promise, is to be discharged, after
maturity, with no less currency than at maturity. Dehtor only entitled

to appreciation to expiration of credit. Whitaker vs. Dye, 380.
15. Where a party dies pending suit, and a new party, not the legal repre-

sentative, takes his place by consent, on express condition, entered of
record, that his opponent shall lose no right thereby, the same evi-
dence will

be admissible as if the legal representative had been made
a party. Power et al. vs. Sav., S. & S. R. R. Co., 471.
16. Trade, contract not to carry on within limits of certain town, enforced.

Ellis & Palmer vs. Jones & Co., 504.
17. Contract as follows: “We, the undersigned, promise to pay the amount

set opposite our several names, to be applied to the completion of the
house of worship of the First Presbyterian Church in Savannah, in
four equal payments, etc., interest to run from first of July next," is a
promise to pay the church, and is supported by the consideration of
mutual promises, and by the fact that the church entered upon the
work of completing the building. Wilson vs. First Presbyterian

Church, 554.
18. Unless so stipulated, removal of subscriber will not bar recovery, nor

will it operate as notice of withdrawal of subscription. Ibid.
19. That treasurer of church indulged one subscriber, and took note there-

for, without interest, not discharge others. Ibid.
20. Note with security, given by agent for moneys collected, to prevent pros-

ecution for breach of trust, not collectible. Aliter, if given solely for

purpose of securing debt. Godwin et al. vs. Crowell, 566.
21. Executive warrant on treasurer is not a contract; it is a license or power

and is revocable before payment. Fletcher, ex'r, vs. Renfroe, treas-
urer, 674.

1. Execution against stockholder under section 3371 et seq., of Code, in

June, 1869, prevents bar of statute of limitations of 1869, though no
levy was made until June, 1870. Stone et al., ex'rs, vs. Davidson,

assignee, 179.
2. Notice by publication under section 3371, need not appear of record ;

nor that president furnished certificate, and number of shares owned
by each as required by section 3373. If these facts do not exist, and
the fi. fa. is for too much, or is otherwise illegal, remedy is by ille-

gality. Ibid.
3. Equity will compel payment of sufficient per cent. of unpaid stock to

meet debts. Dal. & Morg. R. R. Co. vs. McDaniel et al., 191.

4. Remedy in equity more proper than mandamus under facts of this case.

Ibid. 5. Capital stock subscribed, suit to collect, evidence of value of that stock or

of any other, irrelevant. South Ga. & Fla. R. R. Co. vs. Ayres, 230. 6. Not necessary to show that certificate of stock has been tendered, or that

corporation has received stock authorized, or, in absence of plea in

abatement, that corporation has been organized and is still alive. Ibid. 7. Railroad which corporation was chartered to construct, sold to other

company, unpaid stock subscription cannot be collected from the

stockholders not consenting to sale. Ibid. 8. Calls for subscription must be clearly proved, and recovery should be

limited to aggregate amount of calls not met. Ibid. 9. Assignment of bank executed by officers after term had expired, under

authority from stockholders granted before, valid, the charter providing that if election did not take place on proper day, the corporation should not be deemed dissolved, and no election having taken place. President and cashier were officers de facto if not de jure. Milliken

vs. Steiner, 251. 10. Assignment by bank, section 1494 of Code providing how to set aside

at instance of creditors, applies only to case where there has been

voluntary surrender of charter. ibid. 11. Bona fide purchaser of railroad stock protected. Stinson vs. Thorn

ton, adm'r, 377. 12. Judgment of stockholder against company set off in equity against suit

under individual liability use. Boyd En Son vs. Hall et al., 563. 13. Fraud, such judgment may be attacked for, but facts must be averred

and proved. Ibid. 14. Recovery of entire debt may be out of one, provided it does not exceed

defendant's proportion, the charter providing that “stockholders shall be liable pro rata for the debts of said company to the amount the stock they respectively hold.” Ibid.

COSTS. 1. Fund to be distributed, costs of officers of court and commissions of re

ceiver first paid. Loudon, assignee, vs. Blandford & Garrard et al.,

150. 2. Fees of .counsel not included under terms, costs and expenses. Ball,

adm’x, et al., vs. Vason, trustee, et al., 264. 3. Judgment refusing new trial reversed, plaintiff in error entitled to judg

ment for costs incurred in supreme court. This right is not affected by instructions that new trial be refused if defendant consents to certain terms. Turner vs. Carroll, 456.

CRIMINAL LAW. 1. Burglary; only evidence against prisoner, that he was seen to pass by

house some hours before offense was committed, and that several months thereafter goods stolen were found in his possession, sufficiently answered by proof of good character and by testimony of unimpeached witness that goods were left with prisoner in pawn for money, the latter having given substantially same account of posses

sion. Phillips vs. State, 28. 2. Rape; fact that infant was under ten years of age conclusive that act

was forcible. Gosha vs. State, 36. 3. Venue of crime must be established beyond all reasonable doubt. Ibid. 4. Confessions corroborated by strong circumstantial evidence will author-

ize conviction. Crowder vs. State, 44.
5. Jury, error to charge that they are, in no sense, judges of the law. Hab-

ersham vs. State, 61.
6. Escape from custody, on trial for aiding to, fact and legality of custody

are for the jury; court should acquaint jury with rules distinguishing

legal from illegal custody. Ibid.
7. Error to charge that custody was legal if state's evidence be true, or that

verdict of guilty must be returned if jury believe evidence for state. Ibid.
8. Custody by private person after legal arrest without warrant, becomes

illegal if protracted for unreasonable time. Ibid.
9. Cruel treatment by captor considered to illustrate purpose of arrest and

bona fides of custody. Ibid.
10. Custody voluntarily assumed by private person without warrant, may be

lawfully terminated with his consent, especially if prisoner be innocent.

11. Violation of lawful custody, to render criminal, legality need not be

positively known to offender. Ibid.
12. Actual guilt of prisoner not indispensable to legality of custody, and

therefore his conviction is not pre-requisite to convicting another of

assisting him to escape. Ibid.
13. Testimony clear that defendant was guilty of more than bare assault, not

such error to refuse to charge that jury may find him guilty only of

assault, as to require new trial. Felton vs. State, 84.
14. Receiving stolen goods, indictment for under section 4488 of Code,

should allege trial and conviction of principal thief; if facts will not
warrant this, then indictment should be under section 4489. Jordan,

alias Steger, vs. State, 92.
15. Accessory in receiving stolen goods when principal thief is only charged

with simple larceny, indictment for burglary against principal inad-

missible. Ibid.
16. Indictment should specify particular offense of which principal was con-

victed. Ibid.
17. Murder, trial for, court should not charge as to voluntary manslaughter,

if there be no evidence thereof; aliter, if there be the slightest evi-

dence on which to base such defense. Wynne, jr., vs. State, 113.
18. Attention of jury may be called by court to physical facts, such as the

appearance of the pistol and cartridges, etc. Ibid.
19. Pistol, though fired off after rencontre, accompanied by proof of its con-

dition after close of fight, admissible; but no experiment by firing, or
otherwise, if made without defendant's consent, and after homicide,

should be admitted. Ibid.
20. Exact condition of pistol and cartridges at close of fight may be shown;

and experts may testify what such condition indicated, the jury to

draw their own conclusion therefrom. Ibid.
21. Flight of accused and all the circumstances attending his arrest, admis-

sible. Ibid.
22. If M. forge the name of P. to a letter, by which money in hands of P's

bailee at Thomasville is sent to Augusta, and M., personating one C.,
to whom he has directed the money to be sent, takes it from the ex-
press office and appropriates it, M. is guilty of forgery under section

4451 of Code. Mitchell vs. State, 171.
23. Such facts sustain allegation that M's intent was to defraud P., though

latter recovered the money from the express company. Ibid.

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