and even the form of notice, to be served on the owner of the real estate, "why you shall not pave the sidewalk or walks as provided in the attached resolution." It provides that the notice or writ may be served by the marshal of the town, constable, sheriff, or deputy sheriff, on the tenant in possession, at least 20 days before the date of meeting of the council to which the writ has been made returnable "provided, that if there is not a tenant in possession, that a service shall be perfected on the owner of the real estate. And in case the owner is not a resident of said state, service shall be deemed sufficient upon its being made to appear that the writ has been deposited in the United States post office at Copperhill, Tenn., properly stamped and addressed to said owner at his most notorious place of abode, or his place of business, 25 days before the meeting of the council to which it is made returnable," etc. Due process of law is abundantly provided for by the amendment to the charter of McCaysville, and it is not unconstitutional on the ground that it fails to provide for notice, hearing, etc. See McGehee on Due Process of Law, 1; Frank v. State, 142 Ga. 741, 83 S. E. 645, L. R. A. 1915D, 817. Nor is there merit in the contention that the charter only provides for notice, hearing, etc., on the question as to why the landowner himself should not pave the sidewalk. The charter is not only broad enough to cover a case where the owner on notice fails to pave, but also (section 6) where the mayor and council in such case causes it to be paved at the expense of the town and charges such expense against the landowner. [2] 2. It appears from the record and evidence that the assessment proceedings were against Dr. A. W. Lewis, the husband of the plaintiff, and that the marshal in advertising was proceeding to sell the property as that of Mrs. Lewis, a nonresident of the state, and that he summarily struck out the abbreviation "Dr." from the advertisement already prepared, and inserted "Mrs." in lieu thereof. The answer of the defendants to paragraph 3 of the petition admitted that they were proceeding to sell the property under a fi, fa. issued against Mrs. A. W. Lewis. Service was perfected on Dr. A. W. Lewis as the supposed owner of the property, but no service was made on the plaintiff, the true owner. Such service, under the facts of the case, would not taxes was nugatory for want of service upon the true owner of the land, as required by the charter. 2 Page & Jones on Assessment by Taxation, §§ 748, 749. And see sections 826, 839, 521. Judgment reversed. All the Justices concur, except FISH, C. J., absent on account of sickness. (147 Ga. 401) DUTTON et al. v. NIX et al. (No. 315.) (Supreme Court of Georgia. Nov. 17, 1917.) (Syllabus by the Court.) DENIAL OF NEW TRIAL-PROPRIETY. Error from Superior Court, White County; J. B. Jones, Judge. Action between Harry Dutton and others and S. A. Nix and others. There was a judgment for the latter, and the former bring error. Affirmed. I. L. Oakes, of Lawrenceville, for plaintiffs in error. W. A. Charters, of Gainesville, and Pat Haralson, of Blairsville, for defendants in error. GILBERT, J. Judgment affirmed. All the Justices concur, except FISH, C. J., absent. (147 Ga. 372) FITZPATRICK v. STATE. (No. 93.) (Supreme Court of Georgia. Nov. 17, 1917.) (Syllabus by the Court.) RIGHT TO NEW TRIAL-PROPRIETY OF DENIAL verdict. The assignments of error based on the The evidence was sufficient to support the refusal to rule out certain testimony, and on certain excerpts from the charge of the court, do not present novel questions, nor are they sufficient to require a new trial. Error from Superior Court, Laurens County; J. L. Kent, Judge. Henry Fitzpatrick was convicted of crime, and he brings error. Affirmed. (147 Ga. 389) ATKINSON, J. Judgment affirmed. All bind the real owner. The charter expressly the Justices concur, except FISH, C. J., abprovides how service must be perfected on non-sent. residents, and there has been no sort of compliance with the charter in this respect. In statutory proceedings whereby a person may be deprived of his property, the statute must be strictly pursued. D'Antignac v. Augusta, 31 Ga. 700. We think the court erred in not granting an injunction without the proviso as 1. to the manner of sale of the property. The whole proceeding of the council to assess the BRONNER v. WILLIAMS, Sheriff. (No. 215.) OF JUDGE. The mere fact that before the evidence was concluded on the trial of a capital case, which lasted several days, the judge, after the court had taken a recess in the evening until the next morning, left and went to his residence in an adjoining county to spend the night, and on another occasion, after the case had been submitted to the jury and during a recess of the court, the judge again went to his home and spent the night, the jury in each instance being left in charge of the bailiff, would not render the trial of the accused void, and, after conviction, authorize his discharge upon habeas corpus. The case of Horne v. Rogers, 110 Ga. 362, 35 S. E. 715, 49 L. R. A. 176 (5), and cases therein cited, involve questions made upon application for new trial, and the judge's absence occurred under different circumstances than those involved in the present case. 2. DISCHARGE-HABEAS Corpus. (147 Ga. 371) HENDERSON et al. v. HOWARD. (No. 83.) (Supreme Court of Georgia. Nov. 17, 1917.) (Syllabus by the Court.) 1. DEEDS 46-PRINCIPAL AND AGENT 117(3)-POWER OF ATTORNEY-SEAL. The absence of a seal from a deed conveying land will not alone render the deed void. Atlanta, etc., Railway Co. v. McKinney, 124 Ga. 929, 53 S. E. 701, 110 Am. St. Rep. 215; Civ. Code 1910, § 4179. Yet where a deed conveying land is executed under seal by a person other than the grantor, in pursuance of a power of attorney signed by the grantor, but the paper relied on as a power of attorney was not executed under seal, the deed so executed is not binding The judge did not err in refusing to dis.. upon the purported grantor. Lynch v. Poole, charge the petitioner for habeas corpus. Error from City Court of McRae; Eason, Judge. 138 Ga. 303, 75 S. E. 158; Pollard v. Gibbs, 55 Ga. 45; Neely v. Stevens, 138 Ga. 305, 75 S. Tom E. 159. Petition by J. O. Bronner for a writ of habeas corpus directed against J. D. Williams, sheriff. There was a judgment denying the writ, and petitioner brings error. Affirmed. A. C. Saffold and Hamilton Burch, both of Alamo, and Eschol Graham, of McRae, for plaintiff in error. W. A. Wooten, Sol. Gen., of Eastman, for defendant in error. ATKINSON, J. Judgment affirmed. All the Justices concur, except FISH, C. J., absent. (147 Ga. 388) M. BONO & BRO. v. ORLOW. (No. 190.) (Supreme Court of Georgia. Nov. 17, 1917.) 2. PURPORTed Deed-EVIDENCE. Applying the principle announced in the preceding note, there was no error in rejecting a paper relied on as a deed from the plaintiff to the defendants, purporting to convey the land in question. 3. EJECTMENT 109-EVIDENCE-DIRECTED title by gift from the plaintiff, who was their The plea filed by the defendants set up mother. Though not uncontroverted, there was evidence to the following effect: Plaintiff had several children to whom she desired to give certain lands in severalty. They all came together and assented to a plan of division whereby certain farm lands were to go to other children, and certain city lots, the land in dispute, should go to defendants. Deeds were duly executed to each of the other children; but not having sufficient data for describing the city lots, no deeds were made to defendants. However, plaintiff executed a power of attorney as indicated in the preceding note, and the attorney in fact undertook to execute a deed as there mentioned. Each of the children including defendants were given possession of their respective parcels. eral months thereafter complaint for land was instituted by the donor against the defendants at JUNCTION-GRANTING. the instigation of one of the sons. Without statUnder the evidence in this case the courting his authority to do so or the date, that son was authorized to grant an interlocutory injunc- testified that he demanded possession of the land tion, but the injunction actually granted is in from defendants, which they refused, and that the form of a permanent injunction, and direc- the property was worth $5 per month for rent. tion is given that it be so modified as to provide There was no evidence on this subject. The that the defendants are enjoined and restrained plaintiff was 83 years of age, feeble, of weak until the further hearing, so that upon the trial mind, and under influence of the son last menof the case it can be adjudged whether or not tioned. The plaintiff did not testify, and there an injunction shall be granted under the law and facts. Beverly v. Flesenthall, 142 Ga. 834; suit. The court directed a verdict for the plainwas testimony that she did not authorize the 83 S. E. 942; Southern Railway Co. v. Planters' tiff for the land and a specified amount as mesne Fertilizer Co., 134 Ga. 527, 68 Š. E. 95. profits. Held, that this was erroneous. (Syllabus by the Court.) INJUNCTION 163(7) INTERLOCUTORY IN Error from Superior Court, Lowndes County; W. E. Thomas, Judge. Action between M. Bono & Bro. and D.. Orlow. There was a judgment for the latter, and the former brings error. Affirmed, with directions. Franklin & Langdale, of Valdosta, for plaintiff in error. Patterson & Copeland, of Valdosta, for defendant in error. BECK, P. J. Judgment affirmed, with direction. All the Justices concur, except FISH, C. J., absent. Sev Error from Superior Court, Muscogee County; Geo. P. Munro, Judge. Action by Mrs. T. E. Howard against Onie Henderson and others. Judgment for plaintiff, and defendants bring error. Reversed. Hatcher & Hatcher, of Columbus, for plaintiffs in error. W. H. McCrory and J. E. Chapman, both of Columbus, for defendant in error. ATKINSON, J. Judgment reversed. All the Justices concur, except FISH, C. J., absent on account of sickness. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 Ga. 372) (Syllabus by the Court.) REFORMATION OF INSTRUMENTS 46 - JuDICIAL SALE-EVIDENCE-SUFFICIENCY. In 1899 two fractions of certain land lots were exposed to sale at public outcry by a sheriff under a common-law fi. fa. The land was knocked down to the highest bidder, and the sheriff made a deed in which the land was described as 41% acres off of the southeast corner of lot 305, and 125 acres off of the east side of lot 304 in the Seventh district of Baker county. The land which the defendant in fi. fa. actual ly owned was 412 acres in the southeast corner of lot 304, and 125 acres off of the east side of lot 305. The purchaser thought he was buy ing the property which the defendant actually owned, and entered possession thereof. Fourteen years later it was discovered that the sheriff's deed did not properly describe the land upon which the purchaser entered; whereupon suit was instituted against the defendant in fi. fa. and the sheriff to reform the deed in such manner as that it would describe the land upon which the plaintiff had entered. The defendant denied knowledge of the sale, or any mistake at the sale, as well as the validity of the deed; and in her answer in the nature of a cross-petition she sought to recover the land on which plaintiff had entered and mesne profits. On the trial there was evidence tending to support the pleadings of the respective parties as indicated above, and further to the effect that the execution was not recorded with the deed, and had been lost. There was no evidence as to the language of the levy entered upon the fi. fa., but a copy of the advertisement was introduced, which described the land as indicated in the sheriff's deed. The sheriff did not testify, nor was there any testimony that the land actually levied on was not as described in the deed, nor evidence to explain the circumstances of the alleged mistake. Held, that a direction of a verdict for the plaintiff was unauthorized, and the judge erred in overruling a motion for new trial. (21 Ga. App. 24€) AUGUSTA-AIKEN RY. & ELECTRIC CORP. v. HAFER. (No. 8413.) (Court of Appeals of Georgia, Division No. 1. Nov. 13, 1917.) (Syllabus by the Court.) 1. LANDLORD AND TENANT 167(1)—LIABILITY-"OWNER"-STATUTE "LANDLORD.' " 1910, § 4420, is not synonymous with "land. The word "owner," as used in Civil Code lord," as the latter word is used in section 3694; with both possession and right of possession by and where the owner of land has fully parted any lawful contract of rental, his liabilities are those prescribed by section 3694. In such a is otherwise where the possession or the right case section 4420 is without application. It of possession is not fully parted with. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Landlord; Owner.] 2. LANDLORD AND TENANT 167(3)-RE PAIRS-NOTICE. the rented premises are out of repair, he is not The fact that the rented premises consist- In view of the foregoing rulings, the evidence did not authorize the charges of which complaint is made, or any verdict in favor of the plaintiff. 5. MOTION FOR NEW TRIAL. Error from Superior Court, Calhoun Coun- ant's motion for a new trial. ty; E. E. Cox, Judge. The court erred in overruling the defend Action between J. E. Wiseman and J. S. Cowart and others, with cross-petition. Judgment for the latter upon a directed verdict, motion for new trial overruled, and the former brings error. Reversed. Error from City Court of Richmond County; J. C. C. Black, Jr., Judge. Action by Byrdie Hafer against the Augusta-Aiken Railway & Electric Corporation. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. Reversed. Wright & Wright, of Augusta, for plaintiff in error. T. F. Harrison and Wm. H. Fleming, both of Augusta, for defendant in error. LUKE, J. Judgment reversed. WADE, C. J., and JENKINS, J., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (21 Ga. App. 259) ELLISON v. STATE. him to open the door. That, upon his refusal to do so, Richard bulged against the (Court of Appeals of Georgia, Division No. 2. door, broke the door down, and came in with (No. 9173.) Nov. 13, 1917.) (Syllabus by the Court.) 1. CRIMINAL LAW 921 EXCLUSION OF TESTIMONY-MOTION FOR NEW TRIAL-SUF FICIENCY. "In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." 2. CRIMINAL LAW 938(1)-DISCRETION OF TRIAL COURT-REFUSAL OF NEW TRIAL. On the trial of one charged with murder, where it was not shown, otherwise than by the statement of the accused, that the deceased was the assailant in the fatal rencounter, it was not erroneous to refuse a new trial upon newly discovered evidence of threats made by the deceased against the accused, which were not communicated to the accused prior to the homicide. 3. HOMICIDE 255(2) VOLUNTARY MANSLAUGHTER-SUFFICIENCY OF EVIDENCE. The evidence authorized the verdict of voluntary manslaughter. the ax drawn back on his shoulder. That he (the defendant) then reached up in the rack, got his gun, and told Richard to get back. That Richard continued to advance on him, and he fired, not intending to kill, but intending only to prevent Richard from hurting him. In rebuttal of this statement the state produced a witness, who testified that the defendant, after the killing, gave him an entirely different account of the homicide, claiming that it was accidental. The jury found the defendant guilty of voluntary manslaughter, and to the overruling of his motion for a new trial he excepted. J. H. McGehee and B. Culpepper, both of Talbotton, for plaintiff in error. C. F. McLaughlin, Sol. Gen., of Columbus for the State. HARWELL, J. (after stating the facts as above). [1] 1. The motion for a new trial complains of the refusal of the court to al Error from Superior Court, Talbot County; low a witness for the state to answer the G. H. Howard, Judge following question, propounded to him on cross-examination by the defendant's counsel: said he had shot Richard, why did he say he had "At the time Charles Ellison (the defendant) shot him?" The ground of complaint is that, the state having proved by the witness an admission, the defendant was entitled to have the witness give the entire admission and to let it go to the jury in its entirety. Unquestionably, when a confession is given in evidence. it is the right of the defendant to have the whole confession and all the conversation connected therewith. Penal Code 1910, § 1030; Cox v. State, 64 Ga. 375, 414, 37 Am. Rep. 76, and citations. And it has been held reversible error on the part of the trial judge to admit a part of a defendant's confession and exclude the other part. Long v. State, 22 Ga. 40 (1). However, it is equally well established that: Charles Ellison was convicted of voluntary manslaughter, and he brings error. Affirmed. Charles Ellison was indicted for the murder of his brother, Richard Ellison. It appears from the evidence that on the night of the homicide they went to a frolic at the home of Frank Ellison, their kinsman; that the deceased left the frolic before the defendant did, and went to the defendant's home, where the defendant's wife was alone, and that the defendant shortly afterward also went to his home. The next time the defendant was seen he reappeared at the frolic with a shotgun in his hand, stated to the crowd there that he had killed Richard, and said that some one had better go and see about it. A certain witness who was also at this frolic, had gone from it to the defendant's home, and there found the body of Richard Ellison on the floor before the hearth, with a shotgun wound in the breast, and found no one in the room but the defendant's wife, but on his return with a doctor, an hour later, he found the defendant in the room. He did not find any ax in the room or elsewhere. The defendant, in his statement on the trial, asserted: That his brother Richard "had been kinder running over him about his wife." On a former occasion, when he found Richard In this case it does not appear what at his house, Richard drew a knife on him, answer the witness would have given to this and put the knife around his throat, and he question. It does not appear that the answer told Richard to leave and not come back any of the witness would have shown that the That on the night of the homicide, defendant, when he confessed that he had when he returned from the party, Richard killed deceased, gave any reason at all for was on the outside of his house. That he (the defendant) went into the house and shut the door, and Richard got the ax, which was on the outside of the porch, and told more. "In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was and that a statement was made to the court at asked, and that the court ruled out the answer; the time, showing what the answer would be: and that such testimony was material, and Griffin v. Henderson, 117 Ga. 382, 43 S. E. 712 would have benefited the complaining party." (2); McAllister v. State, 7 Ga. App. 541, 67 S. E. 221 (4). killing him. It does not appear whether, had his statement as to his reason for killing his brother, if made, been admitted, it would have benefited or injured the defendant. the jury. Randolph v. Brunswick Railroad Co.. UTE. This is especially true in view of the fact | ficient to require the case to be submitted_to that it was proved that the defendant made contradictory statements as to his reason for the killing. We are not able to determine whether the answer of this witness would have shown that the defendant, at the time of his confession, gave a reason for the killing which was consistent with his statement on the trial, or would have given still another reason, inconsistent therewith. Hence we are unable to say that the court committed harmful error in refusing to allow the witness to answer the question propounded to him. [2] 2. One of the grounds of the motion for a new trial is based upon newly discovered evidence of threats made by deceased against the accused prior to the fatal encounter. The deceased had been overheard to remark that, Should the defendant "run up on him," when the deceased was having improper relations with the defendant's wife, he (the deceased) would "take a chair or something else and kill him." This threat was uncommunicated to the defendant prior to the homicide. It will be seen that there is no evidence of an assault made on accused by the deceased. The evidence for the state makes out a case of killing without justification. It is only in the defendant's statement that the theory of mutual combat or self-defense arises. Hence the uncommunicated threats made by the deceased would not, under several decisions of the Supreme Court, have been admissible in evidence on the trial of the case, and therefore, when discovered after trial, is not a ground for a new trial. See Vaughn v. State, 88 Ga. 731, 16 S. E. 64; Peterson v. State, 50 Ga. 142; Nix v. State, 120 Ga. 162, 47 S. E. 516; Pride v. State, 133 Ga. 438, 66 S. E. 259 (2). [3] 3. The two grounds dealt with above are the only grounds of the motion for a new trial other than the general ground that the verdict was contrary to the evidence, etc. The evidence authorized the verdict. Judgment affirmed. The plaintiff not having failed to establish a prima facie case as laid, it was error to grant a nonsuit. Civ. Code 1910, § 5942; Ray v. Green, 113 Ga. 920, 39 S. E. 470; Garrett v. Morris, 104 Ga. 88, 30 S. E. 685; Pendleton v. Atlantic Lumber Co., 3 Ga. App. 714, 60 S. E. Ga. App. 800, 804, 92 S. E. 302. 377; Moore v. Dixie Fire Insurance Co., 19 (Additional Syllabus by Editorial Staff.) 3. EVIDENCE 361-DOCUMENTARY-NEWS PAPER FILES. Error from City Court of Nashville; C. A. Christian, Judge. Suit by Hattie Taylor against the Georgia Loan & Trust Company and others. Judgment of nonsuit, and plaintiff brings error. Reversed. Suit was brought by Hattie Taylor. The allegations of her petition, briefly stated, were as follows: P. D. Lewis is the duly and legally qualified administrator on the estate of Thomas S, Taylor, late of Berrien county, Ga. As such administrator he declines to prosecute this suit, and has duly assigned the claim herein sued on to the petitioner, the widow of Thomas S. Taylor, deceased, and therefore a distributee of said estate, in order that she may prosecute this suit in her own name. A copy of the assignment is attached to the petition as an exhibit. The Georgia Loan & Trust Company is a corporation of the city of Macon, Bibb county, Ga. R. A. Hendricks, doing business in the name of Hendricks, Mills & Hendricks, is a resident of Berrien county, Ga. On the 1st day of September, 1909, Thomas S. Taylor executed and delivered his three promissory notes to the Georgia Loan & Trust Company for BROYLES, P. J., and BLOODWORTH, J., the sum of $1,000 each, payable five years concur. (21 Ga. App. 272) TAYLOR v. GEORGIA LOAN & TRUST CO. et al. (No. 8583.) after date, together with five coupons attached to each note, representing the annual interest on said indebtedness. In order to secure these notes, Thomas S. Taylor in his lifetime executed and delivered to the Geor (Court of Appeals of Georgia, Division No. 1. gia Loan & Trust Company a security deed Nov. 14, 1917.) (Syllabus by the Court.) to land described in the petition. Thomas S. Taylor departed this life during the year 1913, long before the maturity of said notes. By the terms of the deed it was provided that in the event the said Thomas S. Taylor defaulted in the prompt payment of either one of the interest coupons or principal notes, or insurance premiums, or failed to pay the taxes promptly assessed against the property therein described, it should immediately become the right and power of the hold |