first examine the objections to the admissibility of the tax fi. fa. upon which error is assigned in the cross-bill of exceptions. The tax fi. fa. was as follows: "Georgia, Worth County. To the Sheriff of Worth County to Execute and Return, to Advertise and Sell According to Law: You are hereby commanded that of unreturned wild land number 211, in the 14th district of Worth County, you cause to be made the sum of $3.26, it being the amount of state and county tax for the year 1888, and the further sum of 50 cents for the costs of this fi. fa. and make due return thereof to me according to law. Herein fail not. Given under my hand and seal, this the 20th day of Dec. 1888. [Signed] W. J. Stoy, T. C. [L. S.]" Indorsed upon the fi. fa. was the following entry of levy: "I have this day levied the within fi. fa. upon lot of land number 211 in the 14th district of said county, for state and county tax for the year 1888. January 30th, 1889. [Signed] S. M. Cox, Sheriff." The plaintiff objected to the tax fi. fa. and entry of levy indorsed thereon being received in evidence because the tax fi. fa. was signed, "W. J. Stoy, T. C.," when it was admitted in open court by the defendant that the tax collector in the year 1888 was W. J. Story; that the letters "T. C." following the name of W. J. Stoy did not show that the execution was issued by the tax collector of the county. Objection was further made to the introduction of the fi. fa., on the ground that one of the defendant's witnesses had already testified that the execution was not signed and issued by the tax collector of Worth county, but was signed by witness at the request of the tax collector, plaintiff contending that the tax collector could not delegate any verbai authority to sign the execution, witness not testifying that he had been appointed to collect taxes in Worth county in 1888. appeared that the tax collector was dead at the time of the trial. While the testimony did not directly establish that the tax collector's name was signed by the witness in the tax collector's presence, it does appear that it was done at the special instance and request of the tax collector at his house, and under such circumstances as might afford an inference that it was done in his presence. It is the duty of the tax collector to sign a tax execution. It is not essential, however, that he should actually do the manual act of signing his name in every instance. Hitchcock v. Latham, 97 Ga. 253, 22 S. E. 997, objection was made to the introduction in evidence of an execution on the ground that the name thereto purporting to be that of the tax collector "was in printing as it came from the printing office," and that, therefore, the execution did not bear the genuine signature of the tax collector, and there was nothing to show when, how, or where the name of the tax collector had been affixed to the execution. But this court held that the objection was not good where it affirma

It

In

tively appeared that the fl. fa. came into the sheriff's hands, who had acted upon it as a legal execution, and in so doing had levied upon, advertised, and sold land; that, in the absence of further proof on the subject, it will be presumed that the printed signature was authorized by the tax collector; and that he issued the execution as his official act. It appeared from the record in this case that the sheriff had acted upon this fi. fa., advertised the land levied on to satisfy it, and sold the land thereunder, and made a deed to the purchaser at the sale. As a general rule, when the law declares that a process shall be signed by a particular official, his name cannot be affixed to it by another, not in his presence, under a previous general authority. Biggers v. Winkles, 124 Ga. 990, 53 S. E. 397. However, we are not in opposition to this general proposition when we hold that the facts of this case bring it within the principle of the Hitchcock Case, supra.

The misspelling of the tax collector's name of itself furnished no ground to hold the fi. fa. illegal. It is clear that if the tax collector, signing his name, had inadvertently omitted a letter, and the proof showed that he actually signed it, the signature would be valid.

3. Nor was the objection good that the letters "T. C." following his signature were insufficient to show that he had signed the execution in his official character. Under the law existing at that time, such a fi. fa. must have been issued by the tax collector, and it is to be presumed that the abbreviation "T. C." represents the officer's official character.

4, 5. The fi. fa. was further objected to, because it did not show on its face the necessary jurisdictional allegations that the taxes for the year 1888 were due and unpaid; that it did not show that the lot of land in question had not been returned and had been double taxed, as required by law; and that the tax collector had no authority under the law to issue a tax execution against unreturned wild land, but that at that time such authority was in the tax receiver. We think the necessary jurisdictional facts appear on the face of the fi. fa. It is not to be presumed that the tax collector will issue a fi. fa. for taxes that have been paid. The fi. fa. recited that it was for state and county taxes for the year 1888, and that the land had not been returned for taxes; and it issued for an amount alleged to be due against this particular land, which it is to be presumed was the proper amount. The tax collector, by virtue of the act of December 13, 1882 (Acts 1882, p. 47), in force at the time of the issuance of this execution, had authority to issue the fi. fa. for unpaid taxes due upon unreturned wild land.

6. Objection was also made to the entry of levy appearing on the fi. fa. Prior to tendering the deed and fi. fa. in evidence, one of the witnesses for the defendant had testi

The

fied that the entry of levy on the fi. fa., although purporting to have been made and signed by S. M. Cox, sheriff, was not signed by S. M. Cox, but by another person; that for that reason it did not appear to be an official entry, because it had been shown that it was not made by the sheriff of the county, or by any one authorized by the sheriff. testimony disclosed that the sheriff was dead when the case was tried, and that one W. J. Ford wrote the entry of levy and signed the sheriff's name to it. Ford did not hold any office. There also appeared the following entry upon the fi. fa.: "The within lot of land number 211 in the 14th district, sold this day to J. A. Dixon, for one hundred and fifteen dollars, this 7th day of May, 1889. [Signed] S. M. Cox, Sheriff." There was testimony that this entry of sale was in the handwriting of Cox, the sheriff. The statute declares that the officer making the levy shall enter the same on the process by virtue of which the levy is made. Civ. Code 1895, § 5421. In order that the entry of levy may be authenticated as the official act of the officer, it should be signed. Jones v. Easley, 53 Ga. 454. An entry of levy may be made and the levying officer's name signed thereto by a scrivener, if done in the immediate presence and by the direction of the levying officer. In such a case, notwithstanding the officer's name may be signed by the scrivener, it will be upheld as the entry of the officer. Ellis v. Francis, 9 Ga. 325; Cox v. Montford, 66 Ga. 62; Weaver v. Wood, 103 Ga. 89, 29 S. E. 594. There is no evidence in the record authorizing a conclusion that the entry of levy, and the signing of the sheriff's name thereto by Ford took place in the immediate presence of the sheriff. The undisputed evidence, however, discloses that the sheriff advertised the land by virtue of this particular levy, personally cried the same at the sale, and made an entry of the sale on the fi. fa. There was also evidence by one of the subscribing witnesses to the deed that he saw the sheriff sign the deed, and that he and the other witness attested it as witnesses. This evidence authorizes an inference that the sheriff adopted, as his own act, the entry of levy made by Ford, and acted on it, caused the property to be advertised, sold it, and made a deed to the purchaser. Even if the entry of levy was not made in the immediate presence of the sheriff, he immediately ratified it, and adopted it as his own act, when he advertised the property and sold it by virtue of this particular levy. The adoption by the sheriff of the entry, relatively to a bidder at the sale, made it the sheriff's own act and deed just as effectually as if Ford had signed it in his presence, or the sheriff himself had signed the entry.

7. Several of the grounds of the motion for new trial complain that the court erroneously extended the Civil Code of 1895, § 3628, to embrace a fi. fa. and entry of levy thereon, when tendered in evidence along with the

sheriff's deed. This section provides that "a registered deed shall be admitted in any court in this State without further proof, unless the maker of the deed, or one of his heirs, or the opposite party in the cause, will file an affidavit that the said deed is a forgery, to the best of his knowledge and belief, when the court shall arrest the cause and require an issue to be made and tried as to the genuineness of the alleged deed." Its provisions are applicable only to registered deeds. Hill v. Nisbet, 58 Ga. 586; Sibley v. Haslam, 75 Ga. 490; Holland v. Carter, 79 Ga. 139, 3 S. E. 690; Bentley v. McCall, 119 Ga. 530, 46 S. E. 645; Chatman v. Hodnett, 127 Ga. 360, 56 S. E. 439. It has been held that the proceeding is purely statutory, and is to be strictly construed, and will not be extended to a will. Smith v. Stone, 127 Ga. 485, 56 S. E. 640. It is limited to the one issue of genuineness of the deed, and there is no authority of law for drawing into the trial of that issue questions foreign to the factum of the execution of the deed. Roberts v. Roberts, 101 Ga. 768, 29 S. E. 271. The provisions of the Code section providing for a separate issue upon the affidavit of forgery cannot be extended to the genuineness of the execution or entry of levy thereon. It is true that a sheriff's deed, even though registered, is not admissible as a muniment of title without the fi. fa. under which the sale was made accompanies it, or its loss is shown. But the law does not require that the fi. fa. shall be recorded along with the deed before it will be admissible in evidence. The Civil Code of 1895, § 3625, permits the record of the fi. fa. in connection with the deed, and provides that when this is done, and the fi. fa. is lost, a certified copy of the record of the fi. fa. is admissible in evidence. An attack on the fi. fa. or entry of levy, because it was not signed by the proper officials and is therefore void, is directed against the authority of the officer to make the sale. It is not a direct attack on the deed. The burden is upon him who is asserting that the official signature is not genuine to show that fact. The ruling of the trial court, that the Civil Code of 1895, § 3628, was applicable to the tax fi. fa. and the entry of levy, and that the burden was on the defendant to show their genuineness, and to explain any alteration that might appear in the levy, improperly cast a burden upon the defendant which the law does not place upon him. This error necessitates a new trial, inasmuch as we are unable to say that the jury were not influenced by this instruction in deciding the issues of fact respecting the validity of the different official entries.

8. The defendant complains, in his motion for a new trial, that the court erred in refusing to charge, though requested in writing so to do, that "the law presumes that an officer does his duty, and an entry made on an official document purporting to be an entry by the officer whose duty it is to make it is presumed to be the act of such officer, and such

presumption is not overcome except by the strongest proof." There is a presumption that every officer does his duty, and every official entry is supposed to be the act of such officer, yet this is a rebuttable presumption and may be overcome by proof; and, while it is true that an officer's return should not be lightly set aside, yet it would be improper for the court to instruct the jury that the presumption of verity which the entry imported should prevail unless overcome by the strongest proof. Such an instruction is equivalent to an expression by the court as to quantum of evidence necessary to overcome a rebuttable presumption. For this reason the request was properly refused.

Judgment on the main bill of exceptions reversed, on the cross-bill affirmed. All the Justices concur.

NICK V. STATE.

(Supreme Court of Georgia. July 9, 1907.) 1. CRIMINAL LAW-CONTINUANCES - DISCRETION OF COURT.

Applications for continuances are in all cases addressed to the sound legal discretion of the court, and a judgment refusing to continue a case will not be reversed unless it is made to appear that this discretion has been abused. No abuse of discretion has been made to appear in the present case.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1311; vol. 15, Criminal Law, § 3045.]

2. MURDER-EVIDENCE.

The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.

(Syllabus by the Court.)

Error from Superior Court, Washington County; B. T. Rawlings, Judge.

Will Nick was convicted of murder, and brings error. Affirmed.

The accused was charged with the offense of murder. He made a motion to continue the case. The showing for the continuance was made in the name of counsel appointed by the court to defend the accused. In the motion it was stated that Messrs. G. H. Howard and J. L. Kent had been appointed as counsel for the accused late Monday afternoon; that the case was called for trial Tuesday, and that they had not had sufficient time to prepare the case for trial or to confer with the witnesses; that the indictment was not returned until Monday afternoon, and that the accused was not arrested until Saturday morning preceding the convening of the court; that from investigation made the evidence would develop that the deceased was killed at a negro party, where more than 75 persons had assembled; that the killing occurred at night, outside the house, and that many shots were fired by different parties, and that counsel did not know, and could not, during the present session of court, interview those who were present, to ascertain who saw the shooting; that many saw

it, and, while all of the witnesses were not known, they will swear, if time is given to confer with them to ascertain who they are, that the accused did not fire the fatal shot; that it was impossible for them, under the circumstances, to do justice to their client, or to see that he had a fair trial, such as is guaranteed under the Constitution; that many of the witnesses the accused did not know, but according to the best of his information some of them were living in the county adjoining that in which the indictment was pending; that, when counsel were appointed, they at once issued subpoenas for a large number of witnesses, the names of whom were furnished by the accused, some of whom lived in other counties, and it would be impossible for the officers to summon these witnesses during the present term of court; that, if such witnesses were produced, the accused would be able to prove that the killing was not done by him, but by another; that counsel used all diligence possible under the circumstances; and that the motion was not made for delay, but in order to secure the testimony of these witnesses at the next term. The court overruled the motion to continue, appointed a bailiff to assist counsel in procuring the witnesses desired, and passed the case until Thursday afternoon at 2 o'clock. Error is assigned upon this ruling. When the case was called on Thursday afternoon, another motion was made to continue the case, upon the grounds stated in the former motion, and upon the additional facts appearing in the statement made to the court by Mr. Kent, of counsel for the accused. The substance of Mr. Kent's statement was that the bailiff had been endeavoring to find the witnesses, but was unable to do so; that they had not been able to obtain the witnesses for him; that the court had also appointed other counsel besides himself and Mr. Howard, and these had been excused by the court, and that the case should not be pressed to trial until other counsel were appointed in their place; that a number of the witnesses to the transaction lived in Johnson, Jefferson, and Washington counties, and possibly other counties in the state; that counsel had been unable to obtain these witnesses so as to interview them; that some of the witnesses for whom subpœnas had been issued the officer had not been able to find; that the bailiff made every effort to get these witnesses, but now gave the information that they were not there; that counsel had learned that one of the witnesses possibly did not get the subpoena, and that one lived in Jefferson county very near to the scene of the occurrence; and the accused informed counsel that he could prove by this witness that another man fired the fatal shot; that counsel did not know whether this witness could be brought at that term of the court, but that he had not been brought. The court overruled the motion to continue, and this ruling is assigned as error. The trial resulted

In a verdict finding the accused guilty, and he was sentenced to death. The accused filed a motion for a new trial, which was overruled, and the accused excepted.

G. H. Howard and J. L. Kent, for plaintiff in error. Alfred Herrington, Sol. Gen., and John C. Hart, Atty. Gen., for the State.

COBB, P. J. (after stating the facts). 1. Motions for continuance are addressed to the sound legal discretion of the court.. This is the rule in all cases, including those where the accused is charged with a capital felony. The Constitution guarantees to every one charged with a crime the privilege and benefit of counsel. This constitutional guaranty amounts to nothing, unless the counsel selected by the accused or appointed by the court are given a reasonable time to ascertain what is the character of the case that the accused is called upon to defend. There is no rule fixing what is a reasonable time for such preparation. What is a reasonable time depends upon the general character of the case and the questions of law and fact involved therein. In the present case it appears from the showing made for a continuance that the only question involved was: Who fired the fatal shot? That there was a homicide, and that this homicide was murder, seems not to have been an open question. The accused was present at the scene of the killing. It is true that there was a large number present. It does not appear that the accused was among strangers. It is manifest, from the terms of the showing, that he knew a number of those present, if not all of them. He furnished to his counsel the names of a number of those who were present, and subpoenas were issued for them, but, notwithstanding this, there does not appear in the showing for a continuance the name of a single witness whose presence at the trial was desired. The showing upon which it is based is very loose and irregular, being, in substance, that there were a number of persons present, and that counsel were not in a position to do the accused justice until they could have an opportunity to find out who of those present were witnesses to the homicide. In one portion of the showing it is stated that there was a witness living in another county who would testify that the accused did not fire the fatal shot; but the name of this witness was not disclosed to the court. If it had been, the court would probably have exercised its discretion and postponed the trial until a later date in the term, in order to have this witness brought into court. While it appears from the showing that counsel were not in a position to know who were the witnesses by whom the accused could establish that the homicide was committed by another, there is nothing in the showing to indicate why it was that the accused himself could not have given to counsel the 58 S.E.-4

names of those persons who actually witnessed the homicide. When the showing is considered in its entirety, there was no abuse of discretion shown. See, in this connection, Hardy v. State, 117 Ga. 40, 43 S. E. 434; Thompson v. State, 24 Ga. 297; Bradley v. State, 128 Ga. -9 57 S. E. 237. That portion of the showing which complains that other counsel who had been appointed to assist in the defense of the accused were excused, and no others had been appointed to take their place, is not referred to in the brief of counsel, and this point will be treated as abandoned.

2. The motion for a new trial contains no other special grounds than the ones dealt with in the preceding portion of this opinion. The evidence amply authorized the verdict, and we see no reason for reversing the judgment.

Judgment affirmed. All the Justices con

cur.

THRELKELD v. STATE.

(Supreme Court of Georgia. July 11, 1907.) 1. CRIMINAL LAW - WRIT OF ERROR-ESTOPPEL TO ALLEGE ERRor.

When, in the trial of a murder case, the judge requests counsel to define their positions as to the issues involved, and both counsel for the state and for the accused reply that the only issue is the question as to whether the accused is guilty of murder or not guilty of any offense, and that voluntary manslaughter is not involved, if the court submits the issue to the jury as thus stated, the accused cannot, after conviction of murder, founded upon sufficient evidence, complain that the court erred in failing to charge the law of voluntary manslaughter. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3007-3010.] 2. HOMICIDE-TRIAL-INSTRUCTIONS.

The extracts from the charge of the court, upon which error is assigned, are not erroneous for any reason assigned.

3. WRIT OF ERROR-REVIEW - NEW TRIALNEWLY DISCOVERED EVIDENCE.

The evidence authorized the verdict. The newly discovered evidence is not of such character as would probably produce a different result; and the discretion of the judge, exercised in overruling the motion for new trial, will not be interfered with.

(Syllabus by the Court.)

Error from Superior Court, Grady County; T. A. Parker, Judge.

Newton Threlkeld was convicted of murder, and he brings error. Affirmed.

W. M. Hammond and J. W. Walters, for plaintiff in error. W. E. Thomas, Sol. Gen., John C. Hart, Atty. Gen., and S. A. Roddenberg, for the State.

ATKINSON, J. Newton Threlkeld was indicted for murder, and convicted. In his motion for new trial complaint is made that the court omitted to instruct the jury upon the law of voluntary manslaughter, although the evidence showed that offense to be involved. In his order approving the grounds

of the motion the judge certifies that: "During the progress of said case, at the opening of the argument, the court requested counsel to define their positions as to the issues involved in said case. Whereupon counsel for the defendant and also counsel for the state stated in open court that the only issue was the question as to whether the defendant was guilty of murder or not guilty of any offense; that voluntary manslaughter was not involved in the case. The court agreed with counsel in this position, and for this reason the law of voluntary manslaughter was not given in charge."

This certifi

cate is conclusive as to what transpired at the time. If voluntary manslaughter was involved, it was the duty of the court to charge with respect thereto; but, if the court's omission so to charge was brought about by the conduct of the defendant, it would not lie in the mouth of the defendant afterwards to complain. The maxim, "Consensus tollit errorem," applies in criminal cases as well as in civil cases. Howard v. State, 115 Ga. 244, 41 S. E. 654. See, also, Caesar v. State, 127 Ga. 711, 57 S. E. 66; Steed v. State, 123 Ga. 569, and citations, 51 S. E. 627; Coney v. State, 90 Ga. 140, 15 S. E. 746; Griffin v. State, 113 Ga. 279, 38 S. E. 844. While a judge is not bound to commit an error simply because he is so requested, yet, if an error is committed as the result of a request on the part of the accused, he cannot thereafter complain. Able counsel for the defense no doubt believed that it was to the interest of their client that the law of voluntary manslaughter should not be given in charge to the jury, and thereupon took the bold position that the defendant was guilty of murder or of no offense. By taking that position in responding to the inquiry by the court they waived whatever right they may have had to a charge upon the law of voluntary manslaughter. After making such a waiver, if the evidence authorizes a verdict for murder and the defendant is convicted of that offense, a new trial should not be ordered simply because the court did not instruct the jury upon the law governing the less offense of voluntary manslaughter.

We do not deem it necessary to elaborate upon the rulings expressed in the second and third headnotes.

Judgment affirmed. All the Justices con

cur.

PAYTON et al. v. McPHAUL. (Supreme Court of Georgia. June 14, 1907.) 1. MORTGAGES-DESCRIPTION-SUFFICIENCY.

A mortgage which describes the property mortgaged as "100 acres in the southeast corner" of a given lot of land, which contains 490 acres and is in the form of a square, is sufficient as a description. The corner of the lot is to be taken as a base point from which two sides of the tract of land conveyed shall extend an equal

distance; so as to inclose by parallel lines the quantity conveyed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 125-132.]

2. SAME-PLACE OF SALE.

The power of sale in a mortgage authorized a sale "before the courthouse door in the town of Isabella, Ga." Subsequently to the execution of the mortgage the county site of the county was removed from the town of Isabella to Sylvester. Held, that a sale before the courthouse door in Sylvester was a valid execution of the power.

[Ed. Note.-For cases in point, see Cent: Dig. vol. 35, Mortgages, § 1048.]

3. SAME FORECLOSURE UNDER POWER OF SALE-CONVEYANCE TO PURCHASER.

A deed by a mortgagee, signed in his own name, but purporting to be in the execution of the power of sale in the mortgage, is a good execution of the power, when the recitals of the deed are sufficient to indicate that it was the intention of the grantor to convey in behalf of the mortgagor, and not in his own behalf.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1118, 1118.]

4. SAME-PURCHASE BY MORTGAGEE-VALIDITY.

The general rule is that the mortgagee cannot be a purchaser at his own sale under the power in the mortgage, but a purchase by him is not absolutely void, but voidable only at the instance of the mortgagor or the owner of the equity of redemption. A purchaser at an execution sale, had subsequently to the sale under the power, the execution being based on a judgment rendered after the execution and record of the mortgage, will not be allowed to impeach the purchase by the mortgagee at his own sale.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1080-1084.]

5. USURY EFFECT OF POWER OF SALE IN MORTGAGE.

A

The power of sale in a mortgage is not rendered void by reason of the fact that the debt sought to be secured is infected with usury. sale under the power may be had for the purpose of collecting the principal and lawful interest on the debt.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Usury, §§ 158-160.] 6. SAME.

No sufficient reason has been shown for reversing the judgment complained of.

(Syllabus by the Court.)

Error from Superior Court, Worth County; W. N. Spence, Judge.

Action by John G. McPhaul against Claude Payton and others. Judgment for plaintiff, and defendants bring error. Affirmed.

John G. McPhaul filed a petition against Claude Payton, C. E. Hay, and J. D. Bridges, alleging that on July 7, 1904, W. D. Collier executed and delivered to the Bank of Poulan a mortgage to secure a debt of $490.20, due October 15, 1904, upon property described as follows: "100 acres in the southeast corner of lot No. 307 in the 7th district of Worth county, Ga." The mortgage contained the following provision: "Should this debt not be paid at maturity the said Bank of Poulan, Poulan, Ga., or their assigns are hereby authorized to advertise and sell the real property hereby mortgaged, before the court-house door in the town of Isabella, Ga., four weeks' notice of such sale being made by the publication in