in 1873 of the land in dispute, under an execution in 21 favor of Thomas A. Caudle against Charles P. Wiggins, as the property of the latter, to Thomas Alexander.

1. The execution under which the sale was had was dated December 27, 1872, and purports to have been founded on a judgment rendered at the October term, 1872, of the superior court of Fulton county, in which it was adjudged that the amounts of principal and interest due to the plaintiff "be recovered out of the property upon which the attachment was levied." It was insisted that a sale could not be legally had under this judgment, because in the record of writs of Fulton superior court there was no record of any attachment case in which Thomas A. Caudle was plaintiff and Charles P. Wiggins defendant, and because it did not appear from any of the records of that court that a declaration in attachment in the case stated had ever been filed, and nowhere among the papers filed in that court could any such declaration, or copy thereof, be found. We think, however, there was sufficient evidence introduced to authorize the presumption that such a declaration was duly filed. It appears from entries on the docket and the minutes of Fulton superior court that an attachment case in favor of Caudle v. Wiggins had been twice continued; that a verdict for the sum of two hundred dollars principal, with interest, had been rendered therein in favor of the plaintiff, and that a judgment had been entered upon this verdict for the same amount as principal, and fifty-seven dollars interest, besides costs; and that the defendant in that suit had filed a motion for a new trial which motion had been overruled. The fieri facias issued was for the principal and interest already stated, and it directed that these sums, with costs, be made by the sale of certain described city lots, and in other respects followed the verdict and judgment specified. In view of these facts, it will be presumed, after the lapse of a long period of time, amounting to twenty or more years, that the 22 verdict and judgment were founded upon proper attachment proceedings, including a declaration duly filed. Although the law makes it the duty of the clerk to record in suitable books all papers and proceedings in cases disposed of by the superior court, and although there is a presumption that this officer has discharged his duty, we think this presumption is overcome in the present case by another and stronger one, to wit, that the superior court had before it the necessary proceedings to

authorize the verdict and judgment in question. This latter presumption, it will be observed, is aided, if not made absolutely conclusive, by the above-mentioned entries upon the dockets and minutes of the court. Certainly, in the light of these entries, it would be going too far to conclude there was no declaration in attachment, simply because neither such a declaration nor a record of it could be found in the clerk's office. Measuring one presumption against the other, we think it far more likely that the papers were misplaced, and that the clerk failed to perform his duty in respect to recording them, than that the judge would have allowed a verdict and judgment without the necessary pleadings upon which to base the same; and we do not see how it could have been legally possible, in the absence of such pleadings, to do what the records absolutely show was done. "Rather than rip up such a judgment and a sale under it, both of them so old, any presumption should be indulged which it is legally possible to invoke." Bleckley, C. J., in American Mortgage Co. v. Hill, 92 Ga. 297. In our opinion, therefore, the first ground of objection to the validity of the sheriff's sale must fall to the ground.

2. Another objection to this sale was, that the levy did not sufficiently describe the property. The terms of the levy are quoted in the second headnote. The first objection thereto was, that the plat to which it refers 23 was a private paper, had never been recorded, and was therefore inaccessible, and for this reason insufficient to put the public or persons interested upon notice as to what land had been seized by the officer. We do not think this objection well taken. That is certain which can be made certain; and the fact that the "Sage plat" was in existence, and was introduced on the trial of this case, shows that it might have been found by any person desiring to see it, and making the proper inquiry or investigation for this purpose. It often and necessarily happens that words of description used in a levy or convey. ance are of themselves inadequate to convey full and complete knowledge of the location and character of the property sought to be described, and it very frequently becomes necessary to ascertain by inquiry, inspection, or otherwise, additional facts in order to be fully possessed of all the information desirable. For instance, property may be described as fronting upon a certain street, or as adjoining that of another landowner, and, in order to locate it, a party wish

ing to examine it would be compelled to first ascertain the location of the street, or the whereabouts of the land owned by the adjoining proprietor. In legal contemplation, the levy would be sufficient if, by its terms, it enabled one to locate the property, and to identify it when found.

Another objection to the levy was, that it failed to mention the number of the original land lot in which the property was situated. We do not think this fact was indispensable to a clear description of the property, nor that its omission invalidated the levy.

It will be observed that the levy refers to five lots, numbered 1, 2, 3, 4, and 5, respectively, in the subdivision of the Truman property. The frontage of lots 2, 3, and 4 is stated in the levy to be seventy-five feet each, while in the plat referred to the frontage of each of these three 24 lots appears to be one hundred feet. The frontage of lots numbers 1 and 5, as stated in the levy, agrees precisely with their frontage as stated in the plat. The depth of all the lots, as stated in both the levy and the plat, is the same. We do not think the variance indicated as to the frontage of three of them invalidated the levy. The five lots, as shown by the plat, are contiguous, lie side by side, and form one entire tract. Those numbered 1 and 5 are outside or boundary lots, and are on opposite sides of this parcel. The three inside lots misdescribed in the levy lie between these two outside lots; and it is quite clear that any intelligent person, reading the terms of the levy with the plat before him, could not possibly fail to understand what land was meant. He would be obliged to reach the conclusion that the levy covered the entire parcel, or tract, as represented by the plat, and that the variance in the description as to the width of three of the lots was a mere error, not calculated to mislead. On the whole, therefore, we think the levy was, for all practical purposes, sufficient.

It was conceded by counsel for plaintiff in error that, if our conclusions as stated above are correct, the verdict for the defendant was inevitably right, and should not be disturbed. Judgment affirmed.

PRESUMPTION AS TO JUDICIAL PROCEEDINGS-LOST PAPERS.-If nothing appears of record showing affirmatively to the contrary, all actions and orders had and made in a judicial proceeding will be presumed to have been made for good reasons, and based upon proper grounds, as well as to have been regularly and correctly made and done: See note to McGowan v. Lufburrow, 14 Am. St. Rep. 183. Thus the petition for the probate of

will, which petition has been lost or destroyed, will, after the lapse of eight years, be presumed to have contained the necessary jurisdictional facts, especially where some affirmative showing is made that the petition was treated and acted upon as a valid one, and that it was followed by the usual proceedings: In re Will of Warfield, 22 Cal. 51; 83 Am. Dec. 49.

EXECUTION SALES-LEVY - DESCRIPTION-INTENDMENTS. — The description of land in a levy on execution is not vitiated by a mere mistake so long as the description may be rendered certain: Boggess v. Lowrey, 78 Ga. 539; 6 Am. St. Rep. 279, and note. Extrinsic evidence may be received to clearly locate and identify land passing by a sheriff's deed containing an accurate but general description. Judicial and execution sales are not scrutinized by the courts with a view to defeat them; on the contrary, every reasonable intendment will be made in their favor so as to secure, if it can be done consistently with legal rules, the object they were intended to an complish: Smith v. Crosby, 86 Tex. 15; 40 Am. St. Rep. 818.

ROBINSON V. STATE.

[93 GEORGIA, 77.]

POSSE COMITATUS — SUMMONING

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STATUS OF PERSONS ORALLY "Depu. TIZED" TO ASSIST IN MAKING Arrest. - A posse may be summoned under the form of "deputizing" the person or persons composing it. The mode is immaterial, so that the object is to require or command assistance. Persons orally "deputized" by a sheriff to assist him in making an arrest for felony are neither officers nor mere private persons while co-operating with him and acting under his orders, but occupy the legal position of a posse comitatus. POSSE COMITATUS- PROTECTION TO MEMBERS OF. A member of a posse comitatus, summoned by a sheriff to aid in the execution of a warrant for felony in the sheriff's hands, is entitled to the same protection in the discharge of his duties as the sheriff himself, and may do any act to promote or accomplish the arrest that he could lawfully do if he were himself the sheriff, having personal custody of the warrant, and bound to execute it. In order to have the benefit of this protection it is not essential for such member to be and remain in the actual physical presence of the sheriff. It is sufficient if the two are in the same neighborhood, actually endeavoring to make the arrest and acting in concert with a view of effecting it.

ARREST FOR FELONY BY MEMBER OF POSSE-DEMAND FOR AUTHORITY HOMICIDE.—If a person not a known officer, but a member of a sheriff's posse, makes an arrest for felony without having the warrant in his possession, he ought, upon demand to show his authority, to make known the fact that the warrant exists, where it is, and that he is acting under its authority or by command of the officer who has it in his possession. The omission to do so does not, however, authorize resist. ance to arrest where the party to be arrested knows in fact, or believes on reasonable and probable grounds, that he is under a charge of felony, that a warrant is out for his arrest, and that the arrest attempted is really in consequence of the warrant, and in execution of the same.

If, on the other hand, the demand for authority is made in good faith, without a knowledge that a warrant is out, and for the purpose of eliciting information actually wanted and needed, a failure to comply with the demand would justify resistance to any reasonable and proper extent. Under such circumstances, if the arresting party is killed by the other during such resistance, the homicide might amount to man. slaughter only, or if the former made the first demonstration with a deadly weapon, the killing might be justifiable homicide, either case depending upon the facts as found by the jury.

HOMICIDE-Instruction—ArreST.—If a person, not a known officer, but a member of a posse to aid the sheriff in the execution of a warrant for felony held by the sheriff, is killed while doing his duty in attempting to effect the arrest, after a failure to produce the warrant, or to state his authority upon demand therefor, it is error justifying a new trial for the court, in its charge on the trial of the resulting homicide, to make the case turn chiefly on the right and power of the deceased to make the arrest, irrespective of the manner in which the power was executed, and of the failure of the deceased to respond fully to the demand made upon him for his authority, and without reference to the good or bad faith with which that demand was made.

INDICTMENT for murder. Robinson was convicted of the murder of Russell Powell, and his motion for a new trial was overruled. Powell had been summoned by the sheriff to aid him in making Robinson's arrest, under a warrant charging the latter with a felony. The sheriff had informed Powell of the crime with which defendant was charged, and that he had a warrant for his arrest. The sheriff kept the warrant, and Powell and one Crow, another member of the sheriff's posse, went to the house where Robinson and others were, leaving the sheriff and one Burnett about half a mile away. The directions to Powell and Crow were to go to a point be yond and near the house, conceal themselves, and await the coming of the sheriff and Burnett, who would come in half an hour and make the arrest; but that, if defendant went to leave, Powell and Crow were to arrest him. These arrangements were accompanied by acts calculated to keep down suspicion. Arriving at the house, Powell got some water and handed it over the fence to Crow, who went off. Just afterward Robinson started to go a-hunting, in accordance with a previous arrangement. He started up the road with his shotgun, when Powell grasped him by the right arm, and said: "I am deputized to arrest you." Defendant said: "Show your authority," and Powell replied, "It don't make any difference; I have got to take you." Defendant had his shotgun in his left hand, and called to his brother to come and take it, saying, as he handed it over the fence, "Jim," or,