2

lic policy to monopolize in this way any commodity of common utility, or of common consumption or use among the people, or even of considerable utility or consumption, whether it be one of the necessaries of life or not; and, in the second place, we feel entirely assured of conservatism in declaring that in this latitude, and especially in towns as populous as Tuscaloosa, ice is one of the common necessaries of life. All of the foregoing propositions, sustaining the conclusion that the contract sued on is violative of public policy as stifling competition and promoting monopoly to the manifest injury of the public, are fully supported by the following authorities: Beach, Cont. §§ 1579-1592; Clark, Cont. p. 458 et seq.; Craft v. McConoughy, 79 Ill. 346; Arnot v. Coal Co., 68 N. Y. 558; More v. Bennett, 140 Ill. 69, 29 N. E. 888, 15 L. R. A. 361; Lumber Co. v. Hayes, 76 Cal. 387, 18 Pac. 391; Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Salt Co. v. Guthrie, 35 Ohio St. 666; Association v. Kock, 14 La. Ann. 168; Oil Co. v. Adoue, 83 Tex. 650, 19 S. W. 274, 15 L. R. A. 598; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; Chaplin v. Brown (Iowa) 48 N. W. 1074, 12 L. R. A. 428; Oliver v. Gilmore (C. C.) 52 Fed. 562; Nester v. Brewing Co., 161 Pa. St. 473, 29 Atl. 102, 24 L. R. A. 247; Anderson v. Jett, 89 Ky. 376, 12 S. W. 670, 6 L. R. A. 390. It follows that, in our opinion, the court below erred in sustaining the demurrer to defendant's plea. The judgment of the law and equity court will be reversed, and a judgment will be here entered overruling said demurrer. The cause will be remanded. dered in part, and remanded.

(126 Ala. 59)

Reversed, ren

GIBSON v. STATE. (Supreme Court of Alabama. June 14, 1900.) HOMICIDE-DYING DECLARATIONS - ADMISSIBILITY-NECESSITY OF KILLING-FREEDOM FROM FAULT INSTRUCTION EMBRACING ONLY PART OF EVIDENCE.

1. Statements by deceased soon after he had been carried to a house a short distance from the place of the shooting, to the effect that he was going to die and wanted to tell who shot him, and that it was the defendant, was admissible in evidence as dying declarations.

2. Where defendant shot the deceased in front of defendant's house, and there was evidence that defendant was not free from fault in bringing about the necessity of the killing, an instruction that if, after looking at all the evidence, the jury were in such uncertainty that they could not say beyond a reasonable doubt whether the defendant acted upon a reasonable belief that it was necessary to take the life of the deceased to save himself from great bodily harm or from death, or that he shot before such impending necessity arose, such doubt would entitle the defendant to an acquittal, was properly refused, since it omitted the doctrine of freedom from fault.

3. Where there was evidence that defendant was not free from fault in bringing about the necessity of killing the deceased, an instruction that if deceased was repeatedly ordered to leave the house of defendant, and refused to do so, and, after being ordered to leave, the deceased 28 So.-43

fendant with it open, and defendant shot him, then the defendant was free from fault in bringing on the difficulty, was properly refused, as withdrawing a part of the evidence from the consideration of the jury.

Appeal from Cleburne county court; T. J. Burton, Judge.

Bud Gibson was convicted of manslaughter, and he appeals. Affirmed.

The evidence introduced upon the trial was without material conflict, and tended to show the following facts: Monroe Simmons went to the home of Bud Gibson on the 23d of December, 1899, and at the door called for his wife, who was sitting on the inside by the fire. She refused to go to him, and after her refusal to go the deceased became talkative, and was ordered away from the house by both Lizzie Gibson and Bud Gibson, but he refused to leave. The wife of the deceased also told him, in the presence of defendant, her brother, that he (the deceased) had beaten her a few days before with a bed slat, and had also said that he wanted to get one lick at the defendant. The defendant's mother, Lizzie Gibson, went to the door, and repeatedly demanded the deceased to leave, and, after his refusal to go down off of the steps, the defendant told his mother to knock the deceased away, to which the deceased replied, "You would better do it;" and defendant, getting up out of his chair, said to deceased, "I can do it," and walked towards the door with an ax handle in his

hand, which he gave to his mother upon being requested to do so by her. The defendant's mother then pushed the deceased off of the steps to the ground, and then deceased pulled his knife, and opened it, and began to advance upon the defendant. The defendant took his gun from the rack above the door, and told the deceased not to come on him with that knife, and while the deceased was advancing on the defendant the defendant shot him in the side. The deceased went around the house, and the defendant fired another shot out of the other door. There was evidence of a previous difficulty at the defendant's house about a week before this shooting, and the defendant then and there ordered the deceased not to come back to his house drinking and cursing. There was also evidence that the deceased had made threats to whip the defendant, which threats had been communicated to the defendant before the shooting. There was evidence that the deceased was drinking at the time of the difficulty. The defendant was shown by the evidence to have a good character for peace and quietude. It was further shown by the evidence that after Monroe Simmons was shot by the defendant he was carried to a house a short distance from the place where the shooting occurred. One Ivey, a witness for the state, testified that upon going to the house where Monroe Simmons was carried, after he was shot, he found him lying on the floor; that he seemed to be suffering,

and prayed for a long time; that he turned to him, and said that "he was going to die, and wanted to tell" who shot him. Upon this witness being asked who deceased said shot him, the defendant objected to the question upon the ground that it called for a dying declaration, and no sufficient predicate had been laid. The court overruled the objection, and the defendant duly excepted. The witness answered that Simmons said to him that Bud Gibson shot him. During the examination of one Robert Chandler as a witness for the state, he stated that he saw the deceased, Monroe Simmons, in the house where he was killed, after he was shot, and that in conversation with him (the witness) he said Simmons told him that he did not think he could live long, and said, "I am going to die." This witness was then asked to state what Monroe Simmons said to him about the shooting. The defendant objected to this question on the ground that it called for a dying declaration, and a proper predicate had not been laid therefor. The court overruled the objection, and the defendant duly excepted. The witness answered that, upon his asking Monroe Simmons who shot him, he stated that Bud Gibson shot him. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(3) The court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt whether the defendant acted upon the well-grounded and reasonable belief that it was necessary to shoot and take the life of Monroe Simmons to save himself from great bodily harm or from death, or that he shot before such impending necessity arose, then this is such a doubt as will entitle the defendant to an acquittal." "(13) The court charges the jury that if you believe from the evidence that Monroe Simmons was repeatedly ordered to leave the house of defendant, and he failed and refused to do so, and after being ordered to leave by the defendant, or he would put him away, the deceased pulled his knife, and advanced towards the defendant with his knife open, and the defendant shot him, then the defendant was free from fault in bringing on the difficulty."

Merrill & Merrill for appellant. Chas. G. Brown, Atty. Gen., for the State.

DOWDELL, J. On the testimony of the witnesses Ivey and Chandler, the statements made by the deceased to these witnesses in regard to the shooting from which his death resulted were admissible in evidence as dying declarations. McQueen v. State, 103 Ala. 12, 15 South. 824; Id., 94 Ala. 50, 10 South. 433; Jordan v. Same, 82 Ala. 1, 2 South. 460. Charge No. 3, refused to the defendant, if

it were faulty in no other respect, is bad in that it pretermits the doctrine of freedom from fault. As was forcibly said by this court in the case of Watkins v. State, 89 Ala. 88, 89, 8 South. 134, a man's house is his castle for purposes of defense. "It cannot be turned into an arsenal for the purpose of offensive efforts against the lives of others. He cannot justify under a necessity which his own fault or wrong has contributed to produce." There was evidence tending to show that the defendant was not free from fault and wrong which contributed to produce the necessity for him to shoot, if it can be said that such necessity existed.

The court very properly refused charge No. 13, requested by the defendant. This charge instructs the jury, upon the facts postulated, to find that the defendant was free from fault. The jury might find every fact hypothesized in the charge to be true, and yet find from other facts in evidence that the defendant was not free from fault in bringing on the difficulty. The charge withdrew from the jury the consideration of all the other evidence, and from which they might have inferred that the defendant was at fault. We find no error in the record, and the judg- · ment of the court must be affirmed.

(127 Ala. 185)

HENDERSON et al. v. KIRKLAND et al. (Supreme Court of Alabama. June 14, 1900.) MORTGAGES-HOMESTEAD-STATUTES-HUSBAND AND WIFE.

1. Under Code, § 982, declaring that if one making a conveyance is not able to sign his name the conveyance must be attested by two witnesses, a mortgage executed by a husband and wife by their marks, and witnessed by one person, was void.

2. Under the constitutional provision declaring that a mortgage or other alienation of a homestead, if the owner is a married man, shall not be valid without the voluntary signature and assent of the wife, where a mortgage executed by a husband and wife on a homestead was void, in that it failed to comply with the statute relative to the execution of conveyances, it could not be enforced as an agreement to convey the mortgaged premises, since the constitutional provision refers only to alienations conveying title in præsenti, and do not apply to instruments which can only be considered agreements to convey.

Appeal from chancery court, Dale county; W. L. Parks, Chancellor.

Suit by J. E. and W. E. Henderson against J. L. V. Kirkland and another. From a decree in favor of defendants, complainants appeal. Affirmed.

The bill averred that the defendants had executed a mortgage to the complainants to secure the payment of an indebtedness which they owed the complainants; that in the execution of this mortgage each of the defendants being unable to write, did sign the same by making their mark, and that there was but one attesting witness. It was then averred that default had been

made in the payment of the mortgage debt, and that under the provisions of the mortgage it should be foreclosed.

The prayer of the bill was that inasmuch as there was but one attesting witness to the signatures of the mortgagors by making their mark, the mortgage was inoperative to convey the legal title; that therefore the instrument should be decreed an agreement or contract to convey, and as such contract should be specifically enforced. To this bill the defendants demurred upon the following grounds: "Said bill and the mortgage upon which complainants rely for relief show upon their faces that the said mortgage is absolutely void under the statute and is not an agreement to convey which can be enforced."

On the submission of the cause on the demurrers, the chancellor rendered a decree sustaining it. From this decree the complainants appeal, and assign the rendition thereof as error.

Sallie & Kirkland, for appellants. A. T. Borders, for appellees.

HARALSON, J. Neither of the defendants, who are the mortgagors in the mortgage sought to be specifically enforced as a contract to convey title, and foreclosed, could write their names. Their names were written for them by John Adams, with the words "his" and "her mark" written over each name, with a cross mark between the words "his" and "her mark," as they appear. The mortgage was attested by said John Adams alone, whose name appears signed thereto as a witness.

The Code (section 982) requires, that conveyances for the alienation of lands "must be signed at their foot by the contracting party, or his agent having a written authority; or, if he is not able to sign his name, then his name must be written for him, with the words 'his mark' written against the same, or over it; the execution of such conveyance must be attested by one witness, or, when the party cannot write, by two witnesses who are able to write, and who must write their names as witnesses." The method of conveyance here prescribed is exclusive, the rule being, that "when a statute limits a thing to be done in a particular manner, it includes in itself a negative; and the negative is, that it shall not be done otherwise. The limitation exists whenever the statute prescribes the particular manner in which the thing must be done." Bickley v. Keenan, 60 Ala. 293; Hendon v. White, 52 Ala. 597. It follows, that the mortgage from the defendants to the complainants,-signed by the defendant, J. L. V. Kirkland, who could not write, by his name being written for him by another, with the words "his mark" over or against the same, in the presence of but one witness,-was inoperative, and of no effect to

convey the legal title. For that purpose, it was a nullity. The theory on which complainants propose to maintain their bill, however, is, that the mortgage is good as an agreement to convey and may be enforced as such. However that may be as to lands which do not constitute the homestead of the mortgagor, it breaks down as this court has more than once held, and has no application to conveyances of the homestead. In Jenkins v. Harrison, 66 Ala. 345, directly applicable to the question in hand, it was said: "But while we hold the instruments intended to operate as deeds, though not perfected by delivery, and thereby becoming conveyances of the legal estate, are writings evidencing the contract, avoiding the operation of the statute of frauds, their sufficiency for the alienation of the homestead presents another and different question. The constitution of 1868, of force when this transaction occurred, like the present constitution, declared that no mortgage, or other alienation of the homestead, if the owner thereof was a married man, should be valid, 'without the voluntary signature and assent of the wife to the same.' It is in this court a settled question, that a mortgage, or other alienation of the homestead of a husband, whatever may be its form, to which the voluntary assent of the wife is not manifested by her signature, in some mode appointed by law, is invalid for any purpose. It may operate upon other lands; but, as to a homestead, it is void,—it is a nullity. The constitution refers to a mortgage, or to some other mode of alienation, by which the title is transferred; to legal conveyances, not to writings which import only a contract to convey, which are but the incipiency of a complete alienation and transfer of title. It is not to such writings it is contemplated the wife shall yield her assent and give her signature, but to the act and instrument which operates to transfer the estate. The association of the words, 'mortgage or other alienation,' is a plain indication, that the alienation, other than mortgage, which is contemplated, is an alienation of like kind with a mortgage; and alienation equally operative to pass the legal estate, not mere contracts to alienate. If to such instruments the wife should give her voluntary assent, and manifest it by her signature, there would remain to her the locus penitentiæ. When the contracts are to be performed, she could withhold her signature and assent, and the courts would be powerless to compel her to performance. Waddell V. Adm'rs & Heirs, 42 Ala. 293; Heirs v. Wilkinson, 29 Ala. 662." Again, it was said on the same question in another case: "The constitution and statute have reference to some mode of alienation by which the title passes in præsenti. They do not contemplate instruments which can be regarded only as agreements to convey."

Weaver's McBride's

It may be stated, therefore, that when

husband and wife sign a deed which purports to convey to another their homestead, and the wife acknowledges the same in due form to alienate a homestead, but the instrument is for any reason inoperative to convey the title of the husband, and is a nullity for that purpose, the separate acknowledgment of the wife to such instrument is not and never, in any proceeding, can be made of any validity, but the instrument remains as if her acknowledgment had never been made thereto. Cox v. Holcomb, 87 Ala. 589, 6 South. 309; Gardner v. Moore, 75 Ala. 397; Blythe v. Dargin, 68 Ala. 370.

These decisions are decisive of the one in hand. The lower court very properly sustained a demurrer to the bill.

Affirmed.

(126 Ala. 280)

QUINN v. CAMPBELL.

(Supreme Court of Alabama. June 14, 1900.) HOMESTEAD-EXEMPTION APPRAISAL - NECESSITY - - INFANT CHILD INHERITANCE — DESCENT-DEBTS OF WIFE.

1. Code, § 2077, provides that, on the death of any resident woman leaving surviving a minor child, there shall be exempt from administration and debts in favor of such child such property as is now exempt by law to the widow and minor children on the death of the husband or father. Held, that a minor child whose mother dies leaving a husband is within the act, and it is unnecessary that the mother should be a widow at the time of her death. 2. Under Code, § 2077, providing for exemptions for minor children, and that the property shall be set aside and appraised and held by such minor children, where the mother of the minor died leaving a homestead not exceeding $500 in value, the fact that such child died before the homestead was set apart and appraised did not prevent it from acquiring title to the land.

3. Under Code, § 2077, providing for exemptions for minor children on death of a mother; and section 2071, declaring that when the homestead set apart to a widow and minor child or children, or either, constitutes all the real estate owned in the state by the husband and father at the time of his death, such homestead vests absolutely in them, whether there has been administration on the estate of the decedent or not,-where the mother of an infant died leaving a homestead not exceeding $500 in value, and the infant died before such homestead was set apart to it, and it was the only child of the marriage, its father, as its heir, was entitled to such homestead in fee, freed from all the debts of the deceased wife and from administration.

Appeal from circuit court, Dekalb county; J. A. Bilbro, Judge.

Action by George H. Campbell against George H. Quinn to recover land. From a Judgment in favor of plaintiff, defendant appeals. Reversed.

The plaintiff bases his right to recover the lands sued for upon the fact that he was the duly appointed and qualified administrator of the estate of Adeline S. Quinn, who died seised and possessed of the lands in suit. The defendant, George H. Quinn, was the husband of the said Adeline S. Quinn. The facts

of the case which were adduced on the trial are sufficiently stated in the opinion. On the hearing of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in his behalf. The defendant duly excepted to the giving of this charge, and also excepted to the court's refusal to give the general affirmative charge requested by him. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the giving of the general affirmative charge requested by the plaintiff and the refusal to give the general affirmative charge requested by the defendant.

Davis & Haralson, for appellant. L. L. Cochran, for appellee.

TYSON, J. The tract of land sued for, comprising 38 acres, was owned by the wife of the defendant at the date of her death, in May, 1897. It was her homestead at that time, and had been since 1893, and was all the land owned by her. Its value did not exceed $500, and her personal property at the time of her death was of less value than $1,000. She left surviving her only one child, an infant, about three or four weeks old, an offspring of her marriage with the defendant. This infant survived its mother about three or four weeks, leaving as its only heir at law the defendant. After the death of the mother, the defendant, with the child, moved off the land, but continued to cultivate it. After the child's death, the plaintiff was appointed administrator of the wife's estate, and claims against the estate have been filed against it. No proceeding was had setting apart this land as exempt to the infant. Acts 1894-95, p. 1162. The act of February 18, 1895 (now section 2077, Code), provides "that hereafter, on the death of any woman, who at the time of her death was a resident of this state, leaving surviving her a minor child or children, there shall be exempt from administration of her estate, in favor of such minor child or children, such property, real and personal, as is now exempt by law to the widow and minor children or minor child or children on the death of the husband or father. That such property shall be set apart and appraised and held by such minor child or children as now provided by law in cases where they are enti tled to such exemptions." It is apparent, from a casual reading of the language of the act above quoted, that there is nothing which supports the contention that a minor child whose mother dies leaving a husband is not within its provisions so as to enjoy the benefits conferred by it, and that only those children whose mothers are widows at the time of their death are included. Such a construction would not only do violence to the plain words used, but would, in a measure, strike down the spirit and policy of the enactment.

Nor is there any merit in the proposition that the infant acquired no title to the land in controversy, because it was not set apart and

appraised in a proceeding instituted for that purpose. This land being the homestead of the mother, and being all the land owned by her at the time of her death, and its value not exceeding $500, no proceeding was necessary to have it set apart and appraised. "The law intervenes in such cases, and attaches the right of exemption as absolutely as if the particular property had been selected, set apart, and declared exempt." Jackson v. Wilson, 117 Ala. 432, 23 South. 521; Garland v. Bostick, 118 Ala. 209, 23 South. 698.

This land, being exempt to the infant, was to be held by it as is provided in Act Dec. 13, 1892. Under that act (Acts 1892-93, p. 138; Code, § 2071), whenever one dies leaving an estate less in value than the amount exempt by law, either real or personal property, or both, the title to such property vests absolutely in fee in the widow, or widow and minor child or minor children. So, then, the infant acquired eo instanti, upon the death of its mother, an absolute fee-simple title to the land involved in this suit. When the infant died, the defendant, its father, became the owner in fee of the tract, under the statute of descent and distributions, freed from all debts of his deceased wife and from administration. The affirmative charge requested by the defendant should have been given. Reversed and remanded.

(127 Ala. 191)

TUTWILER et al. v. DUGGER. (Supreme Court of Alabama. June 23, 1900.) BILL FOR ACCOUNTING-PARTNERSHIP-INTERESTS OF COMPLAINANT.

A bill in equity for an accounting between partners which did not allege the existence of a past or present partnership between complainant and defendants, nor that complainant was a member of such partnership, or that it had been dissolved, and which contained no prayer for dissolution, was insufficient.

Appeal from chancery court, Hale county; Thomas H. Smith, Chancellor.

Action by R. B. Dugger against P. A. Tutwiler and others. From a decree overruling defendants' demurrers to the bill, they appeal. Reversed.

The bill as filed was as follows: "That on the 12th day of September, 1890, this complainant and the said Henry T. Young, C. S. Tutwiler, and P. A. Tutwiler, all of whom were then and are now of lawful age and of sound mind, bought a plantation in Hale county, Ala. [describing the plantation, and averring the terms of sale]; that P. A. Tutwiler negotiated the sale of the land for William N. Knight and wife, Eva H. Knight, and was to be paid therefor the sum of five hundred dollars, and it was understood and agreed between the parties of the said purchase that the said P. A. Tutwiler was interested in the purchase, that all of the said parties should share equally in the said fee, and that the said fee should be considered

a part of the purchase money of said lands; that the said partnership was formed on the said day between the said Young, C. S. Tutwiler, and P. A. Tutwiler for the purchase of the said land, but it was further understood and agreed that P. A. Tutwiler, who was a member of the firm of Dugger, Young & Tutwiler, should share equally the losses and profits of the concern. Complainant further charges that although it was agreed as aforesaid that the said fee should form a part of the purchase money of the said land, and although that fact was held out to this complainant as an inducement to be a member of said partnership, this complainant is now informed and believes and charges that the said P. A. Tutwiler collected the said fee and used the same for his own benefit. Complainant further states and charges that it was agreed among the said parties that they would take charge of the said land, improve the same by building houses upon the same and by properly ditching the same, and that the members of the firm should be responsible for the costs of the same, and that the land should be rented out, and that the profits should be divided among the owners thereof at a settlement of the partnership. Complainant further avers that as a member of said firm, and with the knowledge of the other members thereof, he paid out large sums of money on the purchase money of said property, and in the payment of taxes due upon the said property, and that when the land was afterwards sold, as hereinafter stated, the said partnership was indebted unto him in the sum of three thousand dollars. Complainant avers that although he paid out large sums of money on the purchase money on said lands, and on the improvements on said property, the partnership was unable to pay for the said land, and that on the 3d day of December, 1892, the said lands were sold under the power of sale contained in the mortgage which was on the property at the time the partnership bought the property; but he further charges that during the years 1890, 1891, and 1892 large sums of money were collected from the rents of the said lands, which went into the hands of the said P. A. Tutwiler; that there has never been any statement of the partnership affairs, and that, upon a settlement of the same, it will be shown that the said partnership is largely indebted unto the complainant; and complainant further states that the affairs of the said partnership are so complicated that it is impossible for them to be settled without the intervention of a court of equity. Complainant further avers that during the years 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, and 1898 he has been forced to pay out large sums of money on account of the indebtedness of the said partnership of Young & Dugger, and that, although he has frequently called upon the said partners to pay the complainant their part of the indebtedness, they have failed